Petition for a Writ of Certiorari — Wolfish v. Klein

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E. ROBERT SEAVER, GLERR

LOUIS WOLFISH,

SS eo

SOLOMON A. KLEIN, .

Respondent.

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FOR A WRIT OF CERTIORARI TO THE

PETITION

SUPREME COURT OF THE STATE OF NEW YORK,

DEPARTMENT

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Appendix A—Order Denying Leave to Appeal .__.

| Peer

Appendix Bo Demal of Reargument and Reconed,

eration ae eeeeenead eee Te eee Tee eT Trae Te 2a

Appendix (\—4dréer of Diebarment .............. 3a

© Appendix 1)—Denial of Reargument in Appellate

GUNMEN wn nnn cccccecceccancescesesscsseceacs fa

Appendix B—<)pinioa of Appellate Division ..... a

Avrrronrrm: Qrep

Cases

Baldwin v. New York, % S.Ct. 1886, 398 U.S. 281

DD: snnceubdnasdheanenentbancessenenceecens 13

Cameron v. Johnson, 290 U.S. 611, 88 B.C. 1335, 20

EE ee 12, 12

Cox v. Louisiana, 348 F.2d 750 (Sth Cir, 185) ..... il

Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116,

ES EE Ea A a 11

Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct.

ee I nn anncccccccncccacss 11

Duncan v. Louisiana, 391 U.S. 145 (1968) .....,.... 13.

Bisenberg v. Boardman, 302 F Supp. 1360 (W.D. Wis.

EE; scbebdiimendenenncnsdéeesceossccescetesss 12

Katz v. United States, 389 U.S. 347 (1947) ...... a,

Leyra v. Denmo, 347 U.S. 556 (1954) .............. ~

Massiah v. United States, 377 U.S. 201 (1964) ...... ~

Mesarosk v. United States, 352 U.S. 1 ........ ame 9

Miranda v. Arizona, 384 U.S. 455 ................ 7

In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed. |

PE siqbedbsdicnbencctnsencanccqnecaseal 9, 10, 12

wi

Selling: 6. Radford, 2480 ee TANRRO RRR ARTE 3

PE n.050050cncnssddesonnhabebhskaaammes - Be”

Sheridan v. Cinerinon, 413 F.2d ON (Oth Vie. 1969),

—- - nartrrr tre emineeee

SE cinngséinnekensbacbabbennrecssesccass = Ff

Sherman v. United Staten, 306 Uk 300 pe edesewnes 8

Serrelix v. United States, 287 U8. 435 2.8... 8

Ryans v. New York, 35) US. 385 (0888) i cionneiis Be

Npevack 0. Klein, 385 U.S. 521 (1967) 0.2... 10

Taylor v. Kentucky Staté Bar Ansor, 424 F.2d 47®

i iz

Theard v. United States, 334 U.S. 278, 77 S.Ct. 1274,

1 L.Md.dd 1942-(1857) rule khchannkoeals TT

United States v. White, 405 F.24 838 (7 Cir.), Cert.

granted, 394 U.S. 957 (1989). 8

Ywiekler v. a on or oh Se

eRe ul

28 UBC. § 1953.2... AO APE soe MG ROR 1

42 U.S.C. § 1983 (1964) 2. ce

Umted States Constitution

First Amendment ...................00.0-.0c000e 12

Fourth Amendment ........................00005, 2,9

Fifth Amendment ................ Lace tanmen inal 2, 9, 10

Sixth Amendment .........................00005. 29

Fourteenth Amendment uhnigenen pete eee e seen sees 2

New Fork Jediciery Lew

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Gece Gat tte Mad ae

Quteder Term [970

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Petitioner, Louis Welfich, a fotmer attorney at law ad-

mitted to practice in the State of New York, petitions thix

Court for a Writ of Certiorari to the @ppellate Division

in the Second Department, which ordered hi« disbarment

from practice as an attorney at law as of the 25th of —

November 1969, and denied a motion’to reargue and recon-

‘sider on March 13, 1970. The New ork Court of Appeals

denied leave to appes! on the 28th” May 1970. A timely.

motion for reargument and reconsideration was made and

this was denied on the 14th day of September "I970,

The Jurisdiction of this Court is invesql under BUSC.

$1253. The New York Court of Appeals denied a motion

2

leave to appeal from an order of the Supreme Court, See-

ond Department, disbarring the Petitioner from practicing

as an attorney at law in New York State. (See Appendix

A and B) | 7

Questions Presented

1. Whether Petitioner's rights under the Fourth, Fifth

and Sixth Amendments were violated by the surreptitious

use of a tape recording against him, apparently sans court

authorization, which was instramental in bringing charges

against him? |

2. Whether Petitioner was denied his rights under the

Fifth and Sixth and Fourteenth Amendments by the failure

of the complainant, the Rockland County Bar Association,

to grant him a complete adversary hearing before its griev-

ance committee?

3. Whether Petitioner received a fair hearing through-

out under due process of law?

4. Whether a disbarment proceeding is sufficiently

‘‘criminal’’ in nature to invoke the usual rules appertain-

ing to criminal trials and proceedings, such as ‘‘ Miranda’’

warnings ; the right to assistance of counsel at all stages of

the proceedings; the right to confront witnesses and to

compel attendance of witnesses; and a presumption of

innocence f

Constitutional and Statutory Provisions Involved

The Fourth, Fifth, Sixth and Fourteenth Amendments |

are involved herein as well as Section 90 of the N.Y. Judi- .

ciary Law.

Resume of The Facts

The Petitioner, age 39, an attorney at law, that is until

his disbarment, was admitted to practice in June 1956 at a

{It should be further noted that the Petitioner here is

also a Rabbi (see Fanelli report, at p. 44.) |

He was charged in thirteen specifications by the Rockland

County Bar Association (Wolfish's office having been in

Spring Valley, Rockland County) with various matters

allegedly involving professional mis-conduct.

The most serious of these, and the ones specifically called

to this Court’s attention involve specifications A, B and C

which involve alleged offering of a bribe to a police officer

to corrupt him in the performance of his duties; the de-

struction of and then substitution of an official report and

the eventual dismissal of a criminal charge; i.e. leaving

the scene Of an accident; and to help cheat an insurance

company in connection with an alleged motor vehicle acci-

and urged the aforesaid police officer (1) to destroy

and alter an official police accident report, (2) to fabri-

eate a false report in place thereof, and (3) to with-

draw or cause the dismissal of the aforesaid criminal

charge of leaving the scene of the accident by making

false representation of fact to the Court.’’

Srecurication C

‘On or about December 15, 1968 in the County of

Rockland, State of New York the respondent Louis

As part of the respondent's corrupt and unlawful

scheme, the respondent offered to represent the said

_ police officer as his attorney to prosecute a claim for

personal injuries against the respondent's aforesaid

ient, James Donald, and counseled, advised and urged

police officer (1) to falsely claim that he was in-

ice ear which had-been struck by the auto-

ven by the respondent’s client, (2) to

as a result thereof he suffers

sounds in his ears, spots in front of

dizziness, headaches, nauses, pains in

left elbow, and left, and (3) to ralsely

&@ previous injury to his finger was

the said accident.

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While there were other specifications which the: Court may

cope with the testimony or charges of the respondent.

4

The report of the hearing officer designated by the Appei-

late Division, Justice George M. Fanelli, declared (Report

of 7/11/69 to Appellate Division, p. 5): |

‘* After hearing the tape-recorded conversations had

between respondent (Wolfish) and officers Steinacker

and Friscino at the Spring Valley Police Headquarters

on the night of December 15, 1968, the conclusion is

ineseapable that respondent had no alternative but to

admit the charges and concede the truthfulness of the

testimony of the various witnesses produced by ‘Peti-

tioner (Klein) to prove the allegations set forth in

these specifications.’’

It is to be noted that in his report, Justice Fanelli notes

that the Petitioner bere had intcrposed an answer by way

of an affirmative defense” that be had been denied a right

te counsel; denied a right to confront witnesses on his be-

half ; denied a right te cross examine witnesses or to present

a defense, at the Grievance Committee bearings of the Hock-

land County Bar Association. =

* The Grievance Committee _— failed to provide

the Petitioner herein with an opportunity to present a proper

dsGense cinee 16. changed the place of convening without wati-

fying Petitioner's then counsel.

In the answer to the Specifications, Petitioner, in addition

to the affirmative defense set forth above, also demanded —

a trial by jury which was not “accorded. . A bill of particulars

was denied, too.

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the police anc: Wolfish were secretly recorded and

an accusatory effort to obtain incriminatory ipforma-

tion without the benefit of “Miranda” warnings.

In the report. of the hearing officer, Justice George M.

Fanelli, the tape recording by’ police officers Steinacker and

Friseino, made while the Petitioner was in the Spring Valley

_ Police Station headquarters, made the rest of the bar assé-

ciation and Appellate Division inquiries a virtual “inquest’’

sinee Wolfish could not get around it—([referring to the

tape recording] :

‘* ._. the conclusion is inescapable that respondent

had no alternative but to admit the charges and con-

cede the truthfulness of the testimony of the various

witnesses produced by petitioner to prove the allega-

tions set forth in these specifications.’’

Since the Petitioner herein was in a ‘police headquarters

- it may be presumed that. this was in essence a type of ‘‘cus-

todial’’ interview (Miranda v. Arizona, 384 US. 436).

Indeed, since the officers apparently pretended some de-

gree of sympathy and friendship for Petitioner, it would

appear to be in line with the condemned procedures . this

Court criticized in Spano v. New York, 360 U.S. 315 (1959).

At any rate, it appears that the Petitioner was being led

down the “‘garden path’’ by these officers to entice him into

making incrimnatory statements and perhaps some psycho-

logical pressures were subtly present (Leyra v. Denno, 347

US. 556 (1954)).

in any event, in United States v. White, 405 F.2d 838 (7

Cir.), Cert. granted, 394 US. 957 (1969), it appears that

the ex parte knowledge about the tape recorder ipso facta

violated Welfish's Fourth Amendment rights (Katz v. United

States, 389 U.S. 347 (1947)).

This was a critical stage of the proceedings and the peti-

tiener was much in the same position as a defendant or

accused in any criminal case. BR

- There is no reason why a Court order should not have

gation as required by both New York and Federal law.

These officers were not dissimilar to Massiah in the in-

famous case of Massiah v. United States, 377 US. 201 (1964)

since they in essence were posing as friends, but in reality

were only seeking to get incriminating evidence (ef: Spano,

supra).

_ —_—A—

eee Well Have “Eatrapped”

It should also be borne in mind that the officers had the

petitioner in their ‘‘parior”’ (‘Come into my parlor said

the spider to the fly’’—nursery rhyme), and as such were

perhaps seeking to entrap him. In view of the surreptitious

use of electronic surveillance, they apparently succeeded.

Sherman v. United States, 356 U.S. 369;

Sorrelis v. United States, 287 US. 435.

) It is to be noted that the polce had come to Petitioner's

him anything he said would be kept confidential.

“In Mesarosh v. United States, 32 US. 1, 9, this Gout

i

inal charges. So far as specifications A, B, and C are con-

cerned, since they alleged an actual violation of law (al-

_

That even an aftormey has the same rights as others in

this Country including the right against eelf-incrimination,

is amply established by Speveck v. Klein, 385 US. 511 (1967).

In Ruffalo, supra, this Court clearly held that disbarment

proceelings are quasi-crimimal (id. at 550-2).

The Petitioner alleges that he was not furnished with a

full bill of particulars by the bar association aad was not

given a complete opportunity to defend himself and to cross-

examine witnesses. As he had been given some right to do

this, it may be noted that the right is meaningful only if

fully bestowed and not attenuated in any way.

This Court further noted in the Ruffalo case which is apt

here n: ;

‘These are adversary proceedings of a quasi-criminal

natere. Cf. In re Gault, 387 US. 1, 33... . . The

charge must be known before they commence.* They

a While the caso at ber io ast ono discstly tavelving feco-

dom of speech, the right to fair procedures is also of con-

stitutional dimension—ie., ef: the Ist and the Sth Amend-

* The Petitioner was denied a bill of particulars.

ll

ments, U.S. Const. This Court has resegnined certain general

vules.°

Nevertheless, the Hupreme Court has instrasted thet where

a plaintiff alleges ‘ ‘highty exusesl and very United cecum.

stances,’’ that is:

**(1) a bed-faith sc’ of the state's legal machinery

with the purpose of inhibiting the exercise of the right

of free speech (or, alternatively, the existence of a

statute unconstitutional on its face affecting free

wpeech) and (3) s probability of irreparable injury,

which is established if there is a showing of a sig-

ere ee ee

by state court adjudication.”

Sheridan v. Garrison, 415 F.2d 699, 709 (Sth Cir. 1969),

cert. denied, 396 U.S. 1040, 90 S.Ct. 685, 24 L.Ed.2d 685

_ (1970) federal injunctive power under 42 U.S.C. § 1983 (1964)

may be the appropriate remedy. Cameron v. Johnson, 390

U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968); Zwickler v.

' Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L:Ed.2d 444 (1967);

’ Dombrowski v. Pfister, 380 US. 479, 85 S.Ct. 1116, 14 L.Ed.2d

22 (1965) ; Coz v. Lowisiana, 348 F.2d 750 (5th Cir. 1965). It:

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local laws. Douglas v. Ch porte no Us . 157, 63 S.

’ 87 L.Ed. 1324 (1943). A i should this rule where

ea character, as is this one. It

ee the states have “autonomous control over

of their officers, 1 k-¥ whom * * * are included,”

United States, 354 U.S. 278, 281,77 S 1276, 1

a adamnal repontaty ofa bar associations bear the

Selling ¥. aneadiond 243. U US. 46, 37 O77, of LE. S88 cdi).

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349; Edwards v. South Carolina, (372 U.S. 229, 8 8.

Ct. 680, 9 L.Eid.2d G97 (9963) )."" Cameron v. Johnson,

supra, 330 US. at G3, SS. at 1300.

‘Nor is it technically necessary that the vehicle be a crim-

~ inal prosecution by the state—disharment proceeding» hav.

ing been described as ‘proceedings of a qaasi-criminal na

ture,’’ Jn re Ruffalo, 390° U.S. 544, 551, 88 St. 1222, DW

L.Ead2d 177 (1968)-—where, under color of state law or court

rule, the effect is to chill the exercise of First Amendment ”

freedoms. See Eisenberg v. Boardman, 302 ¥ Supp. 1360,

1364 (W.D.Wis. 1969).

See, Taylor v. Kentucky State Bar Assoc., 424 F.2d 478

(1970 6th Cir.), where it.was-noted, as herein, that “‘ordi-

narily officials of bar associations, net justices, set grievance

proceedings in metion.”” (Taylor, 424 F.2d at 482). The Sixth

Cireuit, despite reluctance of federal courts to interfere,

ings. We ask this Court to do the same. 3

, The issues are nof-prolix. The Petitioner did not have a

fair hearing before the Reckland County Bar Association

since he did not get the bill of particulars he requested, and

was deprived in part of his right to cross-examine witnesses

and have the assistance of counsel since the hearing wap

adjourned and then reconvened without notice as . the place

being sent to Petitioner's counsel.

=”

Adklivonally, the wre of igaly iain eectronie saves

dropping further prejudiced bie rights to'a fair bearing.

We add that the right to trial -by jury should also have

been cousidered since if this ix quasi-criminal, then the Peti- ee.

tianer should be given the right to such trial. (Beldwinv.

New York, 9 SCL 1886, 398° US: 281 (1970); Duncan v. -

Louwisiaxa, 791 US. 145° (1968))

EE ENE Pate ny

Second Department should be vacated and the matter

| remanded for a hearing ec novo upon constitutionally

: cnmenunnre nue ae

December 7, 1970

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APPENDIX A

Order Denying Leave to Appeal

STATE OF NEW YORK,

IN COURT OF APPEALS

At-a Court of Appeals for the State of New

York, held at Court of Appeals Hall in

the City of Albany on the Twenty-vighth

day of May A. D. 1970.

Present,

Hon, Stranixy H. Fur,

Chief Judge, presiding.

2 Mo. No. 423

— a

>

‘In the Matter of

Louw Worrisn, an Attorney.

Sotomon A. Kuzix,

hespondent,

Appellant.

Lous Worn,

a

7

A motion for leave to appeal to the Court of Appeals

and for a stay in the above cause having been heretofore

made upon the part of the appellant herein and papers

having been duly submitted thereon and due deliberation

thereupon had: |

Onpenep, that the said motion be and the same hereby is

denied. ™

A copy

Gerson Kimpau.

(Seat)

2a

APPENDIX B

Denia! of Reargument and Reconsideration

MTR OF WOLFISH V

MOTION FOR REARGUMENT OF MOTION FOR LEAVE TO AP-

PEAL & C. DENIED

RAOYMOND J CANNON CLERK COURT OF APPEALS ALBANY

NY.

SEPTEMBER 2, 1970

_ upon the charges therein set forth; the said proceeding hav-

- Ba

APPENDIX Cc

Order of Disbarment —

At a Term of the Appellate Division of the®

Supreme Court of the State of New York,

Second Judicial Department, held in

Kings County on November 25, 1969

Hon. Grorce J. Bexpocg,

; Presiding Justice

‘* Marcus G. Cuaisr 2

‘* Arruvur D. Brenwan

‘¢ Samus, Ras

7 ‘¢ James D. Hopxins

/ Associate Justices

,*%

—

In the Matter of

Louis Wourisn, an attorney,

Sotomon A. Kuzry, ; |

Petitioner,

Louis Wo.risn,

Respondent,. “

ys

—

A disciplinary proceeding having been instituted in this

court upon the petition of Solomon A. Klein in respect to

respondent Louis Wolfish, an attorney and counselor at

law who was admitted to practice by the Appellate Divi-

sion of the Supreme Court, First Judicial Department, on

June 27,.1966; the petition praying that the respondent

Louis Wolfish be disciplined for professional misconduct

ing come on to be heard by an order to show cause, dated

Pe

"

.

4is

Appendix C-—-Order of Disbarment

January 24, 1969; the said respondent having filed an an- .

swer; this court by an order dated February 24, 1969 hav-

ing thereafter referred the issues raised by the pleadings

to the Honorable George M. Fanelli, Justice of the Supreme

‘Court, for hearing and for a report setting forth his find-

ings upon the issues; the said Justice having held hearings

and having filed his report dated July 11, 1969, together

with a transeript of the stenographic minutes of the hear-

ings and the exhibits; and petitioner having moved by

order to show cause, dated July 15, 1969, to confirm the

report;

Now, upon the petition verified January 24, 1969; the

answer verified February 6, 1969; the report, testimony,

exhibits; the said order to show cause; the -aflidavit of

Solomon A. Klein in support of the motion-to confirm the

report and respondent's memorandum in opposition to the

motion; and upon all the papers filed herein; and Solomon

A. Klein, Esq., petitioner appearing pro. se, and HL, Elliot

Wales, Esq., having appeared of counsel for respondent; |

and due deliberation having been had thereon, and upon

the per curiam opinion of this court, dated November 25,

1969, heretofore filed and made a part hereof, it is unani-

mously : |

Ornperep that the petitioner’s motion to confirm the re-

port of Mr. Justice Fanelli dated July 11, 1969 is hereby

granted; the report and the findings of fact therein made

by the Justice are hereby confirmed; and the charges set

forth in the petition ure hereby sustained to the extent set

forth in this court’ 8 per curiam opinion >and it is further

‘

. Sa |

Appendiz C—Order of Disbarment

Oxornen that effeetive November 25, 1969 the respondent

Louw Worrmu be and he hereby is disbarred from the

practice of the law. and his name ix hereby directed to be

struck from the roll of attorneys and counselors at law ;

and it is further 9

Onpenen, pursuant to statute (J udiciary Law, $90), that

effective November 25, 1969, the said respondent Loum

Worn be and he hereby is commanded to desist and

refrain: (1) from practicing law in any form, either ax

principal or as agent, clerk or employee of another; (2)

from appearing as attorney or counselor at law before any

court, judge, justice, board, commission or other public

authority; (3) from giving to another an opinion as to the

law or its application, or any advice in relation thereto ;

and (4) from holding himself out in any way as an attorney

and counselor at law; and it is further

Orperep anv pirnecrep that the respondent Louis Wo.risit

shall comply with this court’s rules governing the conduct

of disbarred, suspended and resigned attorneys—a copy

of such rules being annexed hereto and made a part hereof.

Enter:

a Heramax M. Poour

Clerk of the Appellate Division

6a

APPENDIX D

Denial of Reargument in Appellate Division |

Nos. 92, 93, 94, 95.

‘In the Matter of Louis Wourisu,

Soromon A, Kisin, petitioner;

Louw Wo.rin, respondent, «~

ee > oe

Four motions by respondent, each (1) to reconsider and

reargue petitioner's motion to confirm a report, which mo-

tion resulted in an order of this court disbarring respon

dent, entered November 25, 1969, (2) or for leave to appeal

to the Court of Appeals from said order, and (3) to stay

the operation of said order, .

Motions denied in all respects,

Be pock, P.J., Cunt, Ranin, Horns and Munoper, J./.,

concur. |

March 13, 1970 Nos, 92, 93, 94, 95

In Re Lovie Woirimn

7a

APPENDIX E

Opinien of Appellate Division

. November 25, 1969

) on COURT

Aprri.ate Division —Suconv J upiciaL, Department

Betvock, P.J., Cuniwt, Busnnan, Ras and Hopxina, JJ.

Sb

>

In the Matter of

Loum Wo.ruwn, an Attorney.

| So.omon A, Kuszin,

Petitioner,

Louw Woxrin,

a oe

Disciplinary proceeding instituted by Selene A. ‘Klein.

The respondent was admitted to the Bar on June 27, 1956

at a term of the Appellate Division of the Supreme Court

in the First Judicial Department. By order entered Feb-

ruary 24, 1969 the issues were referred to Mr. Tustioe

George M. Fanelli to hear and report.

Solomon A. Klein (Joseph W. Ryan, Jr., of counsel)

for petitioner pro se.

H. Elliot Wales for respondent. —

Per Curiam: The Justice of the Supreme Court to whom

the issues herein were referred having submitted his re-

port to this Court wherein he found the charges as alleged,

with certain exceptions as hereinafier indicated, to have

Su

Appendia E—Opinion of Appellate Division

been duly sustained by the evidence, the petitioner now

moves to confirm the report.

This disciplinary proceeding was instituted against the

respondent after hearing» had been held by the Grievance

Committee of the Reekland County Bar Association and a

subsequent preliminary investigation into charges of pro-

fessional misconduct had been conducted by the petitioner

pursuant to a direction by this Court. Extensive hearings

were thereafter beld before Mr. Justice George M. Fanelli

on April 22, 23, 24, 28, 29, 30, May 1 and 5, 1969 and resulted

in » typewritten transeript of 1,431 pages and the submis-

sion by Justice Fanelli of a most thorough 45-page report.

_ The charges against: the. respondent are set forth in 13.

specifications of the petition. ‘Briefly stated, the —

Justice found the respondent guilty of professional mis-

conduct prejudicial to the administration of justice in that

he had (1) attempted to unlawfully influence a police officer

in connection with the performance of his duties, “°) will-

fully deceived a Justice of the Supreme Court .0 order

to induce approval of proposed compromises of infants’ .

personal injury claims and, in connection therewith, altered

affidavits, (3). solicited negligence cases, (4) maliciously

instituted malpractice actions against two separate physi-

cians, and (5) wrongfully attempted to obtain a legal fee in

excess of that awarded to him by the Workmen's Compensa-

tion Board.

Phe first three specifications (A, B and C) charge that the

respondent unlawfully offered a bribe to a police officer with

intent to influence him in the performance of his duties in

_ connection with a criminal charge of leaving the scene of an

accident nat t had been eigen ome the respondent's

| Ya ;

Appendia: E—Opinion vf Appellate Division

client ; that the respondent ‘counseled, advined and urged”’

the oflieer (1) to destroy and alter an official police accident

report, (2) to fabricate a false report in place thereof, and

(3) to withdraw or cause the dismissal of the criminal

charge by making false representation of fact to the court;

oy that he ‘advised and urged’? the officer to participate in an

unlawful scheme to defraud an insurance company which

had insured the respondent's client aguinst personal injury

and property damage claims, whereby the officer was to

falsely claim that he had been inside the unoccupied police

car which had been struck by the automobile driven by the |

respondent's client and to falsely-claim that as a result

thereof he had sustained serious personal injury; and that

in connection with said scheme the respondent offered to

represent the police officer as his attorney to prosecute the

claim for personal injuries and advised that if the criminal

charge lodged against his client were withdrawn or dis-

missed the respondent would obtain his client's cooperation

in defrauding the insurance company.

The evidence offered in support of these three specifica-

tions, which were all found to be overwhelmingly sustained,

consisted of the t estimony of several police officers and a

tape-recorded conversation had between the respondent and

two police officers. In the said conversation, the respondent -

advised the officers referred to in these three specifications to

go immediately to the Emergency Room at Ramapo General

Hospital. When the officer stated there was nothing wrong 7

with him and indicated that this would pose some difficulty

in a physical examination, the respondent stated: ‘‘I’ll tell

you what is wrong with you. * ° * I would complain as

follows : ringing sounds in your ears, spots in front of your

10a

Appendis E—Opinion of Appellate Division

eyes, dizzy, headaches—you banged your head on the wheel

vr the window—you don't remember, you're nauseous, you

got pains in your neck, pains in your back, pains in your

left elbow and your left knee. That's enough.’’ The re-

spondent then gave the ufiwer the name and address of a local

doctor whom he was to see the morning following his ap-

pearance at the hospital, stating: ‘* Just tell him that | told

you to see him, And if you feel like spending some time in a

hospital, he'll put you in.’’. The respondent added; **1'd go |

sick right now and shoot up to the Ramapo General Hospital

emergency room. Give him all your symptoms, even though

they don't buy that, as long as they make a record of all

your symptoms.’’ When the respondent ascertained from

the officer that the officer had struck his finger with a hammer

about three weeks prior to the conversation, the respondent

stated: ** You show him that and you tell him that it's from

this accident. You banged your finger on you don't know

what—on the wheel. | You were pushed against the wheel. °.

Moreover,: in informing the offer as to the potential

monetary recovery, the respondent stated, ‘*The maximum

you can get here is ten grand,’’ and that hacen

long you want to stay in the hospital.” .

in fast, the congentent donseded the aconpasy of the tage

recording and the transeript thereof and, after-being don-

fronted therewith, admitted these three specifications, which

eee a Ge

stated in the report of Justice Fanelli, ‘Respondent has

offered no mitigating factors to excuse his corrupt and

nefarious scheme, which was. not only reprehensible . but

which also showed a complete disrespect for the standards

of professional ethics and his obligations as an atorney.’’

ia

A ppendia k- Opinion of Appellate Diurswn

” ‘Phree additional specikeation» (D, K and F) charge that,

in connection with the ».proval of infants’ compromise net-

Hements, the. renjemdes: (1) “knowingly deceived and in-

duced’’ # dusticr of the Supreme Court to approve the

netilement of infants’ personal i injury claims by preparing,

causing to be executed, and submitting false affidavits which

minreprenented or wuppresmed the terms of the offers of

nettloment, the names of the treating phyricians, and the ,

medical expenses incurred; and (2) altered affidavits that

had been filed in the offiee of the Clerk-of -the Supreme

Court, County of Rockland, after aw order based on said

ee a ee

Court,

Insofar as epecifications D and E are consivnad the poet |

dinclonen that, with respect to the approval of the settlement —

of three infants’ claims, the: respondent failed to discloxe

the entire medical expenses incurred in the treatment of

the infants und the names of ull the treating physicians,

and had also failed to disclone the true amounts ofthe of-

fors of nettlement. It appears from the reeord that the

o respondent's purpone in failing to disclose the full amounts

of the offers of nettlement was to obtain for himself larger

legal fees, since the offers ulko covered claims by the

mothers of the infants, a» to which the respondent's fees

did not require court approval. Justice Fanelli stated in

his report with respect tu «pecification D (which dealt with

the claim of one of the infants), ‘By not revealing * * °

the true settlement figure of $2,000.00, respondent would

have been in a position to have obtained from the infant’s

mother, without court approval, a legal fee based upon the

l2a

Appendix E—Opinion of Appellate Division

receipt of the $1,100.00, plus the $300.00 awarded him * ° °

on the $900.00 settlement in the first order.’’

With respect to specification F, charging the alteration

of affidavits after they had been filed with the court, Justice

Fanelli noted that it is the practice in Rockland County not

to immediately file compromise orders and supporting affi-

davits, but rather to return the papers to the attorneys for

filing with the County Clerk. Although the Justice found

that the charge of altering affidavits after they had been

filed with the court was not sustained by the evidence, he

further found that the respondent did in fact alter such

‘an affidavit sometime between the signing of the applicable

compromise order and the filing of the papers with the

County Clerk by the respondent.

Specifications G and H charge the respondent with solicit-

ing and attempting to employ laymen, in one case an insur-

ance agent and in the other a bus driver, to refer negligence

cases to him and with offering to pay fees of $35 and $25

to them, respectively, for each referral. Justice Fanelli

found that the evidence supported one of these charges

(specification G) but that the petitioner had failed to sus-

tain the other (specification H).

In specifications I, J and K the respondent is charged

with (I) unlawfully soliciting a woman and her husband,

the latter having been severely injured in an accident and

physically incapacitated, to retain him to prosecute a negli-

gence claim for the injuries and, upon being informed that

they were going to retain another attorney to represent

them, offering to give the wife money out of his pocket and

stating that he would charge less than any other attorney

and could get more money out of it for them; (J) unlaw-

13a

a. ppendiz E—Opinion of Appellate Division

fully soliciting «a person who was neverely injured én an

accident to retain him to prosecute nogligence claim and,

in connection therewith, soliciting and attempting to em-

ploy two lay persons to assist in obtaining a retainer from

the injured party upon a promixe to pay to them a share

of the proceeds of the recovery, and soliciting the assist-

ance of a police officer to induce the injured party to dis-

charge the attorney then representing him and substitute

the respondent in his place; and (K) unlawfully soliciting

and procuring a retainer authorizing the respondent to

prosecute a negligence claim on behalf of an injured party.

The reporting Justice found that specifications I and J

were fully sustained by the evidence, except with respect

to one of the charges of specification J relating to the im-

proper solicitation of one of the two lay persons to assist

the respondent in obtaining the retainer; and he further

found that specification K was not supported by the

evidence,

In specification L the respondent is charged with wrong-

fully and maliciously instituting two separate actions in the

Supreme Court, each against a separate physisian, for

alleged malpractice and negligence, in an attempt to coerce

the physicians to turn over to him certain medica] reports

relating to the respondent’s clients and, in connection there-

with, (a) using the names of his clients as parties plaintiff

without their knowledge or consent, (b) demanding $200,000

damages from one defendant and $50,000 damages from the

other, and (c) discontinuing the actions upon receiving the

medical reports. )

The evidence adduced at the hearings discloses that one

of the physicians had refused to furnish the respondent with

lé4a

Appendiz E—Opinion of Appellate Division

the medical report as to one of his clients because the re-

spondent wanted him (contrary to the true facts) to causally

relate the heart condition of one of the clients to the acci-

dent which was the subject matter of the case which the

respondent was handling; and, as to another client, the same

physician testified that he had always intended to give the

requested medical report personally to the client rather than -

to. the respondent because he ‘*questioned respondent's char-

acter and ethics’? and because of a ‘‘certain amount of hos-

tility’’ which existed between the physician and the respond-

ent as a result of prior litigation between them. With respect

to the second physician, he had refused to furnish thé re-

spondent with a medical report concerning his treatment

of the respondent's client until he first received his prepara-

tion fee of $15, as to which the respondent had tendered

only $10.

Justice Fanelli found that this specification was over-

whelmingly sustained by the evidence; that there was ‘‘ab-

solutely no justification’’ for commencing the malpractice

actions; and that the respondent had commenced these actions

solely for the purpose of coercing the physicians to furnish

him with the medical reports.

The final specification (M) charges the respondent with

attempting to obtain from his client a fee of $1,000 in addi-

tion to his fee of $300 which had been fixed by the New York

Workmen’s Compensation Board. Justice Fanelli found that

this specification was sustained by the evidence.

We are in full accord with the Justice’s findings that, ex-

cept to the extent herein indicated, all of the charges are

fully sustained by the proofs. Accordingly, the report should

in all respects be confirmed.

“15a

«| ppendia E—Opinion of Appellate Division

The charges as sustained against “the respondent consti-

tulé most serious professional misgonduct. His behavior

demonstrates a pattern of consistent misconduct and, in our

opinion, he is unfit to be a member of the Bar. He has dem-

onstrated ‘‘such a deficiency in character and fitness and

such an indifference to the standards required of members

of the Bar as to require his disbarment”’ (Matter of Marko-

_witz, 28 A D 2d 262, 263).

The petitioner’s motion to confirm the report should be

granted, The respondent is adjudged guilty of serious pro-

fessional misconduct and should be disbarred from the further

practice of ’aw, and his name should be removed from: the

roll of attorneys and counselors-at-law, effective forthwith.

Be.pock, P. J., Cunist, Brennan, Raprx and Horxins, J./.,

concur.