# Reply Brief of Petitioner — Klebanoff v. Co-ordinating Committee on Discipline > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1581%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief of Petitioner - **Published:** January 1, 1968 - **Citation:** 393 U.S. 840 ## Text a Office-Supreme Court, U. PU R. FILE AUG 24 1968 IN THE JOHN F. DAVIS, CLERK Supreme Court of the United States " October Term, 1968 No. 261 In om MAatTER OF THE APPLICATION | OF STANLEY M. KLEBANOFF, an Attorney, Petitioner. PETITION For Writ or CERTIORARI TO THE Court or APPEALS oF THE State or New York FP 2 Oba = a ve / PETITIONER’S REPLY BRIEF | Henry G. McDonoves, McDonoven, Scuyewer & Marcus, 349 Hast 149th Street, Bronx, New York, 10451. Of Counsel: | K. Ricuarp Marcus and Minton Barp. 26d Pawel avtne en Nat er iar inl A cents yates TABLE OF CONTENTS ARGUMENT: Point I.—The arguments raised by petitioner in the instant ones are timely raised ........ Port II. a:fPetitininne was not afforded procedural BO PUDOIEE gcc cctv crveccsscncesssscsrcves Conciuston.—The petition for writ of certiorari ND clo ccgevace ees ne cerk havens Cases Cited Brinkerhoff-Faris.Trust Co. v. Hill, 281 U. S. 673 . Cohen v. Hurley, I EE oss os cutscene cftncties ) Cornley v. Cochran, 369 U.S. 506 ................. - Dahnke- Walker Milling Co. v. Bonduvant, 207 U.S. i ¢ead cused eek koe eu eeeete duke ndtaesanys PEE OTE TTT Pee TT eT ee! AUTTELTEPS LOS Hernon v. Georgia; 295 U. S. 441 ............... rer Johnson v. Zerbst, 304 U.S. 458 .........0........ Raley v. Ohio, 360 U. 8. 423 .......... eee ote In re Ruffalo, 390 U. 8. 544; 88 S. Ct. 1222 ......... Saunders v. Shaw, 244 U.S. 317 .............4.05. Whitney v. California, 270 U.S. 357 ......... ae pare Zukerman and Haber v. Greason, 386 U.S.15...... dee iA er mnie ati Mn ae Spon in nL Seeia aol Paver eer eye oS Wart Sie wens ey IN THE ts ed Comt of the United States — Term, 1968 No. 261 >——____—____ In the Matter of the Application of STanLey M. Kiesanorr, an Attorney, | Petitioner. Petition ror Writ or CERTIORARI TO THE COURT OF APPEALS OF THE State or New York ep vr PETITIONER’S REPLY BRIEF “a4 POINT I The arguments raised by petitioner in the instant pe- tition are timely raised. Respondent alleges that being the constitutional issue was not raised before the trial court,’ then when petitioner raised these constitutional questions before the Court of Appeals,” for the first time, these constitutional questions were not timely raised. 'In the instant matter the Aeiidnite Division sat as the trial court, it being the Court of original jurisdiction. 2 In the instant matter the Court of Appeals sat as the first appellate court. —— OS SOP OT PERF OK FO PRO, | MELE TUT TE 8) ORE WRG DOS COOH PSA 9. Seer « = There was no waiver of petitioner’s constitutional rights against self-incrimination. A waiver must be a knowing and intelligent choice to proceed Gideon v. Wainright, 372 U. S. 335; Cornley v. Cochran, 369 U. S. 506 and how could petitioner waive such right when his free choice had been _ taken from him under the former law embodied in Cohen v. Hurley, 366 U.S. 117.: This court has in many eases held that a: an seediiont | could not reasonably have anticipated a new construction placed on a law, then the appellant could not be charged with having failed to raise the question at an earlier stage : ) Brinkerhoff- Faris Trust Co. v. Hill; 281 U. S. 673, 677-8; - Hernon v. Georgia, 295 U. S. 441; Saunders v. Shaw, 244 U. S. 317, 320; Dahnke-Walker Milling Co. v. Bonduvant, 257 U. S. 282; Whitney v. California, 270 U. S. 357, 360; Raley v. Ohio, 360 U..S. 423, 434-6. In Johnson v. Zerbst, 304 U. S. 458, the court held that every possible pre- sumption against a waiver of a constitutional right must be indulged. Here, Klebanoff, just as a cath not possibly have anticipated a reversal of the Cohen v. Hurley case‘and his objection to. his disclosures made under compulsion would have been a futility. This Court has recently decided this issue by its decision in Zukerman and Haber v. Greason, 386 U.S. 15, a discipli- - nary procéeding instituted in New York where both Zuker- man and Haber were caused to testify while Cohen v. Hur- ley was still the law. Zukerman raised the constitutional question of self-incrimination during the initial hearing but Haber did not. At that time, as in the instant matter, it could not be anticipated that Cohen v. Hurley would be over-ruled and a new construction placed on the law. This court not only remanded the Zuckerman matter, wherein the constitutional question had previously been raised, but At eh te ee Lai Lan stan lant Chaka also the Haber matter, where the constitutional question had not previously been raised. Respondent’s allegations that it was petitioner’s theory of his case to cooperate so a less severe punishment would be meted out herein is not justified. Fer an attorney to believe that as an inducement to pleading guilty to charges of professional misconduct and cooperating, the Appellate Division would be more lenient with him is repugnant to our system of justice. Let the punishment fit the crime and let no inducement or promise be made to influence a party to enter a guilty plea and cooperate. These latter theories are basic to our judicial code and known to every attorney. This petitioner cooperated in his self destruction under the compulsion of the existing law of the land, Cohen v. Hurley, and no other reason and it would have been almost impossible for the respondent to prove most of - these charges without the admissions of petitioner. POINT II Petitioner was not afforded procedural -due process. Respondent still clings to the theory that a disciplinary proceeding is not criminal in nature and therefore said petitioner is not entitled to certain constitutional guaran: tees. This theory is directly in conflict with-the recent ruling. handed down by this court in In re Ruffalo, 390 U.S. . 44; 88 S. Ct. 1222 wherein it is stated that : | ‘‘Disbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer. Ex -parte Garland, 4 Wall, 333, 380, 18 L. Ed. 366; Spevack v. Klein, 385 U. S. 511, 87 S. Ct. 625, 628, 17 L. Ed. 2d 574’’ POET Skerry eNO ce RRA MOOT NE % : 4 POR a ee ale ia . PRATT DET SY Sem . . sana «Macaig ail 4 It further. stated therein that disciplinary proceedings are adversary proceedings of a quasi-criminal nature. Cf. In re Gault, 387 U.S. 1, 33, 87 S. Ct: 1428, 1446, 18 L. Ed 2d 527. - And still ie pointed out that this petitioner was not attorded proceedural due process during the entire under- lying investigation and hearings of his conduct as an attor- ney. It stated: ‘The charge must be known before the proceedings commence.’’ ‘They: become a trap when, after they are under- way, the charges are amended on the basis of the testimony of the accused.’’ | In the instant matter, petitioner under compulsion of Cohen v. Hurley, 366 U. S. 117, was forced to testify on three occasions under oath, prior to any charge being brought against him although he was under investigation for certain alleged misconduct gleaned from The Grand Jury Investigation. He was brought in and questioned generally, not only as to those matters under investigation, but, as is the general procedure in The First Judicial Dis- trict of the Supreme Court of the State of New York, as to a general fishing expedition into petitioners practice, ques- tions that may result and, in the instant matter, did result in further charges being brought against this petitioner,’ charges of which the respondent would not have been aware of without the testimony of petitioner. If it is a violation of procedural due process to amend charges brought against an attorney in a disciplinary pro- ceeding based upon said attorney’s testimony and to incor- porate charges gleaned from such testimony, then, as here, * Charge 6, co-mingling of funds (see Petition, p. 21). Or it is a violation of procedural due process to have this petitioner testify under oath, while under investigation, without any charges brought against him, and based upon said testimony, and only after same, to then bring charges against this petitioner. As stated in In re Ruffalo: - ‘‘The charge must be known before the proceedings commence. * * * This absence of fair notice as to the reach of the grievanee procedure and the precise nature of the charges deprived petitioner of proced- ural due process.”’ : - CONCLUSION The petition for writ of certiorari should be granted. Respectfully submitted, - Henry G. McDonovex, ’ McDonoveu, Scunewer & Marcus, 349 East 149th Street, Bronx, New York 10451 K. Ricwarp Marcus and | Mitton Barn, On the Brief. POSE RAL NNTP TNE FUE ELEN CRS LY erie coma amet OE TR --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1581%3A3. Public record. Not legal advice.