Petition for Writ of Certiorari — In re Corey

ope |

Supreme Court of the United States

Octroser TeRM, 1974

No.

73-1450

In THE MATTER OF RatpH E. Corey, Petitioner

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF HAWAII

GeraLtpD D. Stern

1775 K Street, N.W., Suite 700

Washington, D. C. 20006

Attorney for Petitioner Corey

Of Counsel:

Swyey §. RosperroHER ,

Daniet P, Levirr

Pav, Wxiss, RirKrnp, | rs

Wuarton & GARRISON !

and

Heten B. Ryan

1136 Union Mall

Honolulu, Hawaii 96813

TABLE OF CONTENTS

Page

PEP eT CTT TT eT TOT ee TET CTT TT TTT 1

PQ TTT TC TT CT CT ET TT TTT eT TT Tee 1

(cede nhanes Aad RA RADNOR NR EKeS 2

ieebeeas tar dnducs 4

pebee sessed ecReineeaees 4

Introductory Statement ................eeeeeeeeeee 5

‘Statement EE sxe srcncsnccnvessreesesseenss 7

- °A. The Business Venture That Led to the Sus-

ceca dSeeoesancassadscngresercatenes 7

: _B. The Civil Litigation Whose Record Was Relied

Upon To Discipline Petitioner ................ 8

2 ~(. The Ex Parte Campaign Against Petitioner .... 11

DD. The Disciplinary Proceedings ................ 12

| Beasons For Granting the Writ ..............06005. 14

A, Contrary To This Court’s Decision in Ruffalo,

Petitioner Was Charged With a Violation of

Canon 9 of the New Canons, But Was Found

Guilty of Violating Former Canons 15, 16, 29

is ee ent teheenanetehaae ee 15

i _ B. Petitioner Was Denied His Constitutional Right

— "To Confront His Accusers ................0055 17

5 -C. Petitioner Was Denied a Hearing by an Impar-

SE MEE occa ccsncsccssscuscorecssccceces 24

eeeereeereereereereereeeeeeeeteeteeeseeeeeeet tos

ii Table of Contents Continued

TABLE OF AUTHORITIES

Cass: Page

Barber v. Page, 390 U.S. 719 (1968) ................ 0

California v. Green, 399 U.S. 149 (1970) ............. 3, 20

Chambers v. Mississippi, 410 U.S. 284 (1973) ........ 20

Corey v. State Savings & Loan Ass’n, 53 Haw. 132, 488

P.2d 703 (1971), cert. denied, 406 U.S. 920 (1972) 10

Estes v. Texas, 381 U.S. 532 (1965) ................ 5

Goldberg v. Kelly, 397 U.S. 254 (1970) .............. 19

Greene v. McElroy, 360 U.S. 474 (1959) ........ 18, 19, 25

In Sean 112 S.W.2d 594 (St. L. Mo. Ct. of App.

ET Pee ere T eee Tere TEP EET TOCTTe. 4

In re Murchison, 349 U.S. 133 (1955) ................ ys)

In re Ruffalo, 390 U.S. 544 (1968) ......... 3, 14, 15, 17, 25

In re Santosuosso, 62 N.E.2d 105 (Mass. 1945) ...... 24

In re Trask, 46 Haw. 404 (1963) ...............00... 6

Levy v. Kimball, — Haw. 540 (1970) ................ 21

Louisiana State Bar Ass’n v. Sackett, 231 La. 655, 92

EE SEE cs cccwiesedausneu ches accrues 24

Mancusi v. Stubbs, 408 U.S. 204 (1972) .............. 20

Market Street R. Co. v. Railroad Comm’n, 324 US.

Se CE 45 640 aA ehh beedvoeonekssaaes sdcapans 2

Mattox v. United States, 156 U.S. 237 (1895) ........ 23

Motes v. United States, 178 U.S. 458 (1900) ......... 20

Patterson v. Colorado, 205 U.S. 454 (1907) .......... 4

People ex rel. Chicago Bar Ass’n v. Amos, 246 IIl. 299,

se 8 gp Brey errr errr 23

People v. Howard, 364 P.2d 380 (Colo. 1961) ........ 4

Puget Sound Co. v. King County, 264 U.S. 22 (1924)... 2

Tennessee Bar Ass’n v. Freeman, 362 S.W.2d 828

Pe Hs BED (hp 5 04S vwks bande ces eeasaaun 3

Texaco, Inc. v. F.T.C., 336 F.2d 754 (D.C. Cir. 1964) .. 25

Tumey v. Ohio, 273 U.S. 510 (1927) ............008 25

Willner v. Committee on Character & Fitness, = 3 hs S.

DEE San ccckesskusceniscresacnbeeaes 15, 18, 25

Table of Contents Continued iii

Page

ConsTITUTION, StaTuTEs, Ruues, Canons:

United States Constitution, Sixth and Fourteenth

I iswndndensanduedopeeeundan cad 4, passim

98 United States Code § 1257(3) .................... 2

Rule 32(a)(3), Federal Rules of Civil Procedure .... 21

Rule 5, Hawaii Supreme Court Rules ............... 2

Rule 10, Hawaii Supreme Court Rules .............. 2

Rule 16, Hawaii Supreme Court Rules ....... 13, 25, 26, 27

Rule 16, as amended effective July 1, 1974, Hawaii

Ny SE GUN bv ik cece ds deskecusecava 26, 27

Canons 15, 16, 29 and 32, American Bar Ass’n, Canons

of Professional Ethics (1908) .............. 14, 16-17

Canon 9, American Bar Ass’n, Code of Professional

BB SR ne 14, 16

MIscELLANEOUS:

Annotation, Admissibility in proceeding to inquire into

conduct of attorney, of evidence or record in sep-

arate proceeding involving or indicating his cor-

rupt or improper conduct, 161 A.L.R. 898 (1945) 23

Keeton, Trial Tactics and Methods (1973 ed.) ...... 21

3 Wigmore § 1018 (3d ed. 1940) ....................

IN THE

Supreme Court of the United States

OcToBER TERM, 1974

No.

In THE MATTER OF RatPH E. Corey, Petitioner

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF HAWAII

Petitioner prays that a writ of certiorari issue to

review the judgment of the Supreme Court of the State

of Hawaii entered in this case on November 28, 1973.

OPINION BELOW

The opinion of the Supreme Court of the State of

Hawaii, 55 Haw. ——, is reproduced as Appendix A

to this petition.

JURISDICTION

The judgment of the Supreme Court of the State

of Hawaii was entered on November 28, 1973 (Appen-

dix B), following the filing of the Court’s opinion on

October 19 and the denial of a timely petition for

rehearing on November 5 (Appendix C). Time to file

this petition was extended by Mr. Justice Douglas to

March 28, 1974." Jurisdiction is invoked under 28

U.S.C. § 1257(3).

QUESTIONS PRESENTED

This case raises important questions concerning the

procedural safeguards imposed by the Confrontation

and Due Process Clauses in disciplinary proceedings

in which attorneys may be deprived of their right to

1In granting the extension, applied for on February 15, 1974,

more than 10 days prior to the expiration of 90 days from entry

of judgment on November 28, the Justice did so ‘‘without preju-

dice to the Court’s consideration of whether this application was

timely filed.’’

The application was timely. First, because this case was initi-

ated as an original proceeding in the Hawaii Supreme Court, the

judgment entered on November 28 was the first and only judg.

ment ever entered in this matter, and the only ‘‘final judgment

or decree’? from which review could be sought. As such, the

situation here is in no sense comparable to cases in which the

highest court of a state, following review of a lower court judg.

ment, issues a mandate or remittitur directing the lower court to

enter a new judgment in accord with the reviewing court’s

opinion.

Second, it is the practice in Hawaii to embody the Supreme

Court’s judgment in a formal document submitted by counsel,

approved by a member of the Court, and entered by the Clerk.

It is this judgment that was entered on November 28, 1973. The

Court’s mandate issues at a later date. Rule 10, Sup. Ct. of

Hawaii. (Included in Appendix D hereto) Hawaii does not

follow the practice of some other jurisdictions wherein judgment

is deemed to have been entered immediately upon the denial of

rehearing, with ‘‘effectiveness’’ or the issuance of a remittitur or

mandate postponed for a period of time. This Court has observed

this distinction in passing upon the timeliness of applications for

review. Compare Puget Sound Co. v. King County, 264 US. 22

(1924) (measuring time from formal entry of judgment where

‘*however final the decision may be, it is not the judgment.”)

with Market Street R. Co. v. Railroad Comm’n., 324 U.S. 548

(1945) (ignoring deferred effective date).

_———

3

practice their profession and forced to suffer the con-

sequences of suspension or disbarment. Accepting the

view of the Attorney General that these safeguards did

not apply, and ignoring In re Ruffalo, 390 U.S. 544

(1968), Willner v. Committee on Character and Fit-

ness, 373 U.S. 96 (1963), and California v. Green, 399

US. 149 (1970), the Supreme Court of Hawaii violated

petitioner’s rights. Review by this Court is partic-

warly urgent here, for petitioner was suspended in

original proceedings before the Hawaii Supreme

Court, which acted as his initial accuser and his final

and only judge. Accordingly, petitioner has never had

the benefit of any appellate review of the constitutional

questions pertaining to the proceedings before the tri-

bunal which disciplined him. The questions raised are

these :

1. Were petitioner’s constitutional rights violated

when he was suspended from the practice of law by the

Supreme Court of Hawaii which, acting as a disci-

plinary tribunal of original jurisdiction, announced

that his conduct would be measured by one standard,

then suspended him for alleged violations of different

standards ?

2. Were petitioner’s constitutional rights violated

when he was suspended from the practice of law by the

Supreme Court of Hawaii which acted on the basis of

testimony in a prior civil litigation without affording

petitioner any opportunity to confront his accusers and

cross-examine them before the tribunal that was to

adjudicate his conduct ?

3. Were petitioner’s constitutional rights to an

impartial adjudication violated when he was suspended

from the practice of law by the Hawaii Supreme Court

where that Court had already publicly accused peti-

ee

4

tioner of misconduct as an attorney during the course

of a civil litigation in which that issue was not involved,

and particularly in view of the circumstances that:

(a) The Court’s pronouncement in the civil litiga-

tion was preceded by a surreptitious campaign by peti-

tioner’s adversaries of ex parte communications with

the Court;

(b) The Court, contrary to its own long-estab-

lished practice, conducted petitioner’s disciplinary

proceeding as an original proceeding, thus bypassing

the customary factual hearing before a lower tribunal;

(ec) The Court then proceeded to adjudicate solely

on the basis of the record of the prior civil litigation

and without affording petitioner any opportunity to

confront his accusers or to know the standard by which

his conduct would be measured.

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment provides in pertinent part

that:

‘*[ijn all criminal prosecutions, the accused shall

enjoy the right toa... trial, by an impartial jury

_ and to be informed of the nature and cause of

the accusation; to be confronted with the wit-

nesses against him... .”

The Due Process Clause of the Fourteenth Amend-

ment provides in pertinent part that no state shall:

‘*deprive any person of life, a or property,

without due process of law .

STATUTES AND RULES INVOLVED

This case also involves Rules 5, 10 and 16 of the

Supreme Court of Hawaii Rules; Canon 9 of the Code

5

of Professional Responsibility, American Bar Asso-

ciation (1970); and Canons 15, 16, 29 and 32 of the

Canons of Professional Ethics, American Bar Asso-

ciation (1908) as made applicable in the State of

Hawaii by Rule 16(a) of the Supreme Court of Hawaii

Rules. The foregoing Rules and Canons are included

in Appendix D hereto. The Order of the Supreme

Court of Hawaii amending Rule 16, effective July 1,

1974, is included herewith as Appendix E.

INTRODUCTORY STATEMENT

Petitioner Ralph E. Corey, 55, has lived in Hawaii

for over 25 years. Since his graduation from the

Harvard Law School in 1954, he has been an active

member of the Hawaii bar and twice a primary candi-

date for the state legislature.

On November 28, 1973, Corey was ordered suspended

from the practice of law for a period of six months.

This suspension, stayed pending review here, requires

Corey to notify all clients of his suspension, and for all

practical purposes destroys the practice he built up

over 20 years.

The suspension arose from alleged conduct occurring

nearly ten years earlier not in the practice of law, but

in a corporate real estate venture in which he was a

participant. That venture led to civil litigation, an

adverse jury verdict against Corey and two business

associates, grant of a new trial on the damages issue by

the trial judge, and reinstatement of the jury verdict in

the Supreme Court of Hawaii. At the same time, the

Supreme Court—after a surreptitious campaign of ex

parte vilification addressed to members of the Court by

Corey’s trial court adversaries—included in its opinion

6

its view that Corey’s conduct in his business venture

amounted to professional misconduct.

Thereafter, following proceedings against Corey

based entirely on the record in that civil litigation, and

after additional ex parte communications from Corey’s

adversaries, the Supreme Court ordered Corey sus-

pended from practice. In doing so, the Court inten-

tionally bypassed its own long established procedures

whereby inquiries into professional misconduct are re-

ferred to commissioners for hearing.’ Instead, it in-

voked a procedure—an original proceeding in the

Supreme Court itself—not utilized previously against

any attorney. Assuming that continued bar member-

ship is a privilege not protected by procedural due

2? The Hawaii Supreme Court has described its uswal disciplinary

procedure as follows:

‘*Rule 16 provides for reference to and a hearing by the

commissioners appointed thereunder on charges of unprofes-

sional conduct by attorneys of the bar. It contemplates and

provides for a full hearing before the commissioners who, at

the conclusion thereof, are required to submit a report to the

court. If the commissioners find the attorney guilty of u-

professional conduct, he has a right to contest the finding by

filing exceptions to the report in this court. The review by

this court is on the record alone. There is no trial de novo, as

was expressly provided for in our rule governing disciplinary

proceedings before the adoption, in 1955, of the present rule

16. (See old rule 19 set out in 39 Haw. at p. 707)...

‘‘The procedure prescribed by Rule 16 is very practical.

Proceedings under the new rule are much more convenient

to court and to all parties concerned in a disciplinary hear-

ing than the formerly existing practice of trying disciplinary

proceedings anew in this court. The accused attorney’s rights

are adequately protected. He has full opportunity to be heard

and to make his record before the commissioners. Under the

new rule he is given ample opportunity in this court to chal-

lenge the charge and the findings of the commissioners on

that record.’’ In re Trask, 46 Haw. 404, at 414-416 (1963).

7

process, the Court, on the same record which led to

its earlier public reprimand of Corey in the civil liti-

gation, found him guilty of conduct warranting sus-

pension. In the process, the Court denied him the

right to confront his accusers, to adequate notice of

the precise charges against him, and to an impartial

tribunal.

STATEMENT OF THE CASE

A. The Business Venture that Led to the Suspension

In 1964, petitioner Corey became a shareholder, vice

president, and general counsel of the Kauaian Devel-

opment Company, Inc. (‘‘Kauaian Development’’).

The company owned a section of ocean front property

upon which it desired to build a hotel-condominium

complex. State Savings and Loan Association (‘‘State

Savings’’) agreed to lend construction funds equal to

65 percent of the cost of construction of the complex

plus the appraised value of the undeveloped land, or

65 percent of the appraised value of the property as

completely developed, whichever was less.

Among the supporting documentation requested and

obtained by State Savings were an independent ap-

praisal that estimated the value of the completed proj-

ect at $1,345,000, and a construction contract that re-

flected either a total construction price of over $750,000,

or, alternatively, cost plus 7 percent. On January 17,

1964, State Savings granted Kauaian Development a

loan for $857,000. Corey and Kauaian Development

president Kimbrough agreed in writing to be per-

sonally liable for construction costs above those pro-

vided by the loan proceeds. When State Savings re-

fused to grant the necessary condominium status to

the completed project, Kauaian Development defaulted.

8

B. The Civil Litigation Whose Record Was Relied Upon

To Discipline Petitioner

In 1966, State Savings instituted a mortgage fore.

closure suit for $1,050,000—representing the unpaid

balance of the loan, several mechanics liens, and the

costs of foreclosure. State Savings itself bought in

the property at court-ordered auction in 1966 for

$931,000, creating an alleged ‘‘deficiency”’ of $138,000

after application of the proceeds to its loan. It then

resold it nine months later for $1,350,000,° making a

quick profit on the entire transaction of over $300,000,

But before reselling the complex in June 1967, State

Savings sued Corey, Kimbrough and Kauaian Devel-

opment’s secretary-treasurer Young for the alleged

deficiency of $138,200—essentially the difference be-

tween the auction sale price and the ‘‘damages’’ that

had been claimed in the foreclosure suit.‘

The deficiency suit charged Corey, Kimbrough and

Young with fraud in connection with the presentation

of the allegedly misleading construction contract.

Plaintiff alleged that it had relied on the purported

contract for over $750,000 in calculating what it should

lend Kauaian Development, but that the actual con-

tract was for only $600,000 plus three condominium

3 This sale fully confirmed the accuracy of the independent ap-

praisal submitted by Corey and his associates which had estimated

the value of the completed project at $1,345,000. State Savings

has never contested the accuracy of the estimate. See Record 282-

283 ; a copy of the certified Record has been filed with the Clerk of

this Court.

*These ‘‘damages’’ of $138,000 which the Supreme Court of

Hawaii ultimately awarded State Savings in 1971, had become a

$300,000 profit on the resale four years earlier.

9

units valued at $60,000. It asserted that the larger

contract was fraudulent and had been submitted for

the purpose of inducing it to make a larger loan. De-

fendants denied that the larger contract was fraudu-

lent, that plaintiff was unaware of the second, lower

contract, or that plaintiff had in any way relied on the

value of the larger contract in making its loan decision.

The case was tried to a jury in 1969, six years after

the events in question, two years after State Savings

had resold the property at a substantial profit, and

without any suggestion that at stake were not only

money damages but defendant Corey’s right to prac-

tice law. At trial, one or another of the three defend-

ants sharply disputed plaintiff’s reading of the docu-

ments and challenged the testimony of the key relevant

witness, State Savings’ Ralph Brown, who admitted

that his recollection was hazy. (Record 174, 203, 308)

Corey testified that he had not personally prepared

any of the financing papers. He conceded that he knew

the contractor had subsequently agreed with Kim-

brough to enter into a less expensive contract, but he

insisted that plaintiff had looked to the appraisal and

not to the contract in calculating its loan, and that in

the circumstances, he did not believe he owed a duty

to State Savings to inform it of the contract re-nego-

tiation. (Record 465-69)

What Corey’s role was, what State Savings knew,

and what it relied upon were all sharply disputed fac-

tual issues. The jury, which was not permitted to learn

of State Savings’ profitable resale of the property in

1967, found for plaintiff against Corey and Kimbrough

on the fraud count. The trial judge, however, ordered

10

a new trial on the issue of damages under the fraud

count.®

On appeal, the Supreme Court of Hawaii reinstated

the jury’s verdict and damage assessment.’ In doing

so, it went far beyond the issues raised to reprimand

Corey for his conduct as it read in the record. The

Court asserted that

‘‘Defendants herein misrepresented to a prospec-

tive mortgagee the true nature of the contract

between developer and contractor upon which the

mortgagee relied in determining the amount of the

loan.... We feel it pertinent to specifically ad-

monish the perpetrators of such conduct. ...

‘In particular, this court questions the status of

defendant Corey in this case. Young testified that

he relied upon Corey as his attorney during the

negotiation for the mortgage. We do not presume

to characterize the relationship between Corey and

Young in this transaction as attorney-client. And

yet an attorney, as an officer of the court, owes a

special duty to the public, his client and the bar

to keep his conduct beyond reproach, whether it be

in or outside the scope of his status as an attorney.

A lawyer should avoid even the appearance of pro-

fessional impropriety. Code of Professional Re-

sponsibility, Canon 9. The conduct of attorney

Corey in this case raises serious questions of im-

propriety.”’

5 Although the trial judge did not explain his ruling, the de-

fendants had argued that the record did not support, and indeed

contradicted, the contention that the alleged misrepresentation

proximately caused damage to plaintiff, or that plaintiff had in-

deed suffered any damage. The Supreme Court assumed that he

concluded it was error to exclude evidence of the profitable resale.

® Corey v. State Savings & Loan Ass’n., 53 Haw. 132, 488 P.2d

703 (1971), cert. denied, 406 U.S. 920 (1972).

11

C. The Ex Parte Campaign Against Petitioner

This judicial pronouncement was preceded by a most

extraordinary surreptitious campaign of ex parte com-

munications addressed to the Supreme Court by State

Savings’ trial counsel, James Campbell, and by its chief

trial witness, Ralph Brown, who urged the Court to

discipline Corey notwithstanding the pendency of liti-

gation that was likely to, and did, come before the

Court.

As the record now discloses, shortly after State Sav-

ings commenced its foreclosure suit against Kauaian

Development, Campbell filed a complaint with the

Hawaii Real Estate Commission. Two days later, he

wrote the Bar Association Ethics Committee. Follow-

up letters were written. (Record 94-95) Unsuccessful

in this effort, Campbell went directly to the Chief

Justice of the Hawaii Supreme Court. Ina letter dated

June 3, 1966 (just five days before the filing of an

appeal in the Hawaii Supreme Court from the mortgage

foreclosure suit), and under the guise of asking the

Court to disqualify petitioner’s counsel, Campbell re-

peated the allegations previously submitted to the

Ethics Committee and the Real Estate Commission.

(Record 96-98). Neither the Court nor Campbell in-

formed Corey of this communication. Nor was Corey

informed that communication with the Court continued

even after the mortgage foreclosure appeal was lodged.

As briefs were being submitted, Brown was writing to

the Court to buttress Campbell’s complaint. (Record

100-101) All this took place before Corey took the

witness stand in the deficiency suit, on October 2, 1969.

On October 11, 1969, two days after the jury’s verdict

in the second litigation, Campbell wrote the Chief Jus-

12

tice to inform him of the result, enclosing a copy of the

proposed complaint amended to conform to the proof.

He urged the Court, on its own motion, to suspend

Corey pending appeal from the jury’s verdict. (Ree-

ord 104-106) Brown wrote the Chief Justice nine days

later to inform him that the mortgage foreclosure had

resulted in a ‘‘loss’’ to State Savings of $138,000, with-

out disclosing the profit on resale. (Record 106)

On October 22, 1969, three years after Campbell’s

first communication with the Court, Corey was for the

first time notified by the Chairman of the Bar’s Com-

mittee on Inquiry that charges had been lodged against

him and that an investigation was underway. The

existence of one letter to the Chief Justice was dis-

closed at the time. (Record 106)

D. The Disciplinary Proceedings

On August 29, 1972, nearly one year after the

Court’s opinion in the State Savings appeal and nine

years after the events in question, the Supreme Court

of Hawaii issued to Corey an order to show cause,

which stated in its entirety:

‘You are hereby cited and ordered to file on or

before October 2, 1972 a written statement show-

ing cause, if any you have, why you should not be

censured, suspended, or disbarred from all the

courts of the State of Hawaii on the basis of the

record in State Savings & Loan Association Vv.

Corey and Kimbrough, No. 5021.

‘‘A copy of this order shall be served on the

Attorney General of the State of Hawaii who is

hereby requested, personally or through a deputy,

to appear in these proceedings as amicus curiae.”

(Record 2)

se ceiti ROR

13

This was all the notice Corey was ever to get from

the Supreme Court.

Corey specially appeared to request the recusal of

justices who had participated in the State Savings

appeal and who had already publicly censured him.

(Record 7-8) This was denied.’

Corey moved to dimiss the show-cause order for

failure to provide adequate notice of the charges or,

alternatively, for a bill of particulars; and requested a

hearing before a fact-finding commission as provided

for under the Court’s Rule 16(¢c). (Record 50-51)

These requests were also denied.

Finally, Corey sought to bar introduction of the

State Savings record, claiming that its use would deny

him his federal constitutional right to confront his

accusers in the forum in which his punishment would

be determined. (Record 57) This too was denied.

As to the merits, petitioner denied violating Canon

9, the only legal standard ever cited to him. He

asserted that State Savings had not been defrauded,

for its sole interest and reliance was on the independent

appraisal, the later renegotiation of the construction

contract was not material to the loan calculations, and

in these circumstances he had no duty to inform State

Savings of the change. (Record 46-48)

The Court overruled Corey’s procedural objections

and directed the Attorney General to file specifications

of portions of the record in State Savings supporting

disciplinary action. Corey was ordered to respond with

a counter specification and to submit a written offer of

-_

"Justice Marumoto did recuse himself for unrelated reasons.

14

proof. Corey responded with a counter specification

disputing the sufficiency of the Attorney General’s

specifications. And he adhered to the position that the

Court could not rely on the prior record; that he was

entitled, under the Constitution, to examine live wit-

nesses before his judges; and that he should not be

confined to submission of a paper case. (Record 158-

514)

The Court set ‘‘argument”’ on the specifications and

counter-specifications—30 minutes per side. (Record

517) When he formally inquired about the possibility

of calling witnesses in his defense, Corey was informed

in writing by the Court that ‘‘no testimony will be

adduced”’ at this ‘‘original proceeding.’’ (Record 523)

Following legal argument—all the ‘‘original proceed-

ing’’ Corey was to receive—the Supreme Court ruled

that Corey was guilty of misrepresentation amounting

to fraud. It found that Corey, as an attorney and

corporate officer, was aware of the two differing con-

struction contracts and failed to inform State Savings

that the actual construction contract cost was less than

the amount represented. Based on these findings, it

held petitioner in violation of Canons 15, 16, 29 and 32,

and ordered his suspension from practice. Canon 9,

the only canon referred to earlier, was not mentioned.

REASONS FOR GRANTING THE WRIT

This petition raises significant issues concerning

the extent to which due process and confrontation

rights apply in disciplinary proceedings against at-

torneys. This Court has previously considered the

fair notice required in lawyers’ disciplinary proceed-

ings. In In re Ruffalo, 390 U.S. 544 (1968), the

Court concluded that because disciplinary proceed-

15

ings may culminate in imposition of punishment,

such proceedings are adversary or quasi-criminal in

nature, and fair notice of charges is essential and must

be given before the attorney is compelled to present

his defense. In this instance, Corey was denied the

fair notice mandated by Ruffalo.

Corey was also denied the equally essential right to

confront his accusers in the forum in which his ‘‘mis-

conduct’? was to be decided, for he was not permitted

to cross-examine witnesses whose testimony in a prior

civil proceeding formed the sole basis of the charges

against him. In Willner v. Committee on Character &

Fitness, 373 U.S. 96 (1963), this Court held confron-

tation required in an admissions case. A disciplinary

proceeding presents an a fortiori case.

And he was denied the right to an impartial tribunal,

one that had not prejudged his case or been subjected

to ex parte communications. The Supreme Court of

Hawaii denied Corey these rights in a proceeding irreg-

ular under its own well-established practice.

A. Contrary to This Court’s Decision in Ruffalo, Petitioner

Was Charged With a Violation of Canon 9 of the New

Canons, but Was Found Guilty of Violating Former Canons

15, 16, 29 and 32.

This Court in In re Ruffalo, 390 U.S. 544, 550-52

(1968), established that an attorney facing discipli-

nary action is entitled to ‘‘procedural due process,”’’

including full and fair notice of the precise standard

by which his conduct is to be judged before being called

upon to make his defense. Corey was denied that

essential right of procedural due process.

The show-cause order issued to Corey, the entire

text of which is set out above at page 12, referred

16

to the State Savings record as the sole basis for the

proposed disciplinary action. It did not specify which

conduct addressed in that lengthy record was the sub-

ject of inquiry, nor did it identify any canon or other

standard by which Corey’s conduct was to be measured.

All that Corey had to go on was the fact that in its

earlier opinion in the State Savings case, the Court had

focused upon alleged misrepresentation of the true

value of the construction contract and had expressly

pointed to Canon 9 of the ABA’s Code of Professional

Responsibility, which provides that: ‘‘A lawyer should

avoid even the appearance of professional impro-

priety.’’ Corey’s repeated plea for greater specificity

and for a bill of particulars was denied.

Canon 9 provides little in the way of notice. But

the ‘‘Ethical Considerations and Disciplinary Rules”

that accompany Canon 9 do provide some content.

They indicate that to avoid the appearance of impro-

priety, a lawyer should not accept private employ-

ment in a matter in which he has acted in a judicial

capacity, accept employment in a matter in which he

had substantial responsibility while a public employee,

state or imply that he can improperly influence any tri-

bunal, legislative body or public official, and that he

must preserve the identity of funds and property of

clients. See DR 9-101, 9-102 of the Code of Profes-

sional Responsibility (1970) (Appendix D hereto).

Left to speculate about the focus of the inquiry,

Corey speculated in error. For upon reading the

opinion announcing his suspension from the practice

of law, Corey learned for the first time that at issue

in the now concluded proceeding was whether he had

violated four of the Canons of Professional Ethics of

ee eS oN = SO

17

the American Bar Association, as formulated in 1908

and which applied to the conduct of Hawaiian attorneys

back in 1963.° He learned also that the Court had

concluded that somewhere in the record of State Sav-

ings there was proof that he had violated Canon 15

(how far a lawyer may go in supporting a client’s

cause), Canon 16 (restraining clients from impro-

priety), Canon 29 (upholding the honor of the pro-

fession), and Canon 32 (the lawyer’s duty in its last

analysis).

Corey was not being obtuse. The Attorney General,

commanded to serve as amicus and to propose the only

specifications against Corey, was equally mystified.

His legal memorandum to the Court (Record 87-89)

referred to none of the 1908 canons ultimately relied

upon, but instead dealt only with the new Canon 9

and an obscure statute not mentioned by the Court.

Ruffalo does not permit the imposition of sanctions

against lawyers in these circumstances.

B. Petitioner Was Denied His Constitutional Right To

Confront His Accusers.

In the context of the disciplinary proceeding, the

testimony of Brown, Young and other witnesses in

State Savings was concededly hearsay, and admissible

under no recognized exception to the rule against hear-

say other than the ‘‘rule’’ prevailing in some jurisdic-

tions—and argued below by the Attorney General (Rec-

ord 69-70)—that lawyers facing punishment are not

*One may surmise that in the course of its deliberations the

Court discovered that Canon 9, which it had referred to in State

Savings, was not in existence in 1963 when the alleged misconduct

occurred, and that it was compelled belatedly to insert into the

case the not heretofore mentioned 1908 Canons.

18

entitled to the benefit of the rules of evidence available

to anyone else.

The Supreme Court of Hawaii denied Corey any

opportunity to cross-examine Brown, to examine

Campbell who was counsel and not a witness in State

Savings, or effectively to cross-examine Young, who

had been a co-defendant and whose testimony was

relied upon by the Supreme Court in its initial censure

of Corey. Corey had a right to challenge their testi-

mony and to expose their demeanor while under pres-

sure—and to do so in the presence of those who would

determine his right to continue to practice law. In

foreclosing this opportunity, the Supreme Court of

Hawaii denied him his right to procedural due process,

including his rights under the Confrontation Clause.

In Willner v. Committee on Character & Fitness,

373 U.S. 96, this Court held that a law school graduate

may not be denied admission to the bar without pro-

cedural due process, including ‘‘confrontation and

cross-examination of those whose word deprives a per-

son of his livelihood.”’ 373 U.S. at 103.° If an appli-

cant for admission to the bar is entitled to cross-examine

adverse witnesses and to probe ex parte complaints, the

plight of a long-time practitioner faced with disbar-

ment or suspension presents an a fortiori case.

In other contexts, too, this Court has recognized

the necessity for permitting one threatened by adverse

governmental action to confront his accusers. In

Greene v. McElroy, 360 U.S. 474 (1959), for example,

the Court held that an engineer working on classified

government contracts could not be deprived of his

® Here, too, ex parte complaints played an improper role in the

decision sought to be reviewed. 373 U.S. at 106.

19

security clearance in a proceeding where he had no

chance to confront and examine his accusers—whose

“eonfidential reports’? were not unlike the surrepti-

tious ex parte letters sent to the Supreme Court of

Hawaii by Campbell and Brown. The Court noted

that :

‘‘While [confrontation] is important in the case

of documentary evidence, it is even more impor-

tant where the evidence consists of the testimony

of individuals whose memory might by faulty or

who, in fact, might be perjurers or persons moti-

vated by malice, vindictiveness, intolerance, prej-

udice, or jealousy.’’ 360 U.S. at 406.

And in Goldberg v. Kelly, 397 U.S. 254, 266-70 (1970),

this Court ruled that welfare benefits may not be

terminated without according recipients their constitu-

tional right to confront and cross-examine adverse wit-

nesses ‘‘before the official who finally determines con-

tinued eligibility.’”’ In language particularly appro-

priate to the Hawaii Court’s insistence that this remain

a paper case, Mr. Justice Brennan observed that:

‘Particularly where credibility and veracity are

at issue . . . written submissions are a wholly un-

satisfactory basis for decision. .. . In almost every

setting where important decisions turn on questions

of fact, due process requires an opportunity to

confront and cross-examine adverse witnesses.’’

397 U.S. at 269.

Were Corey on trial for an alleged criminal offense,

no one would seek to deprive him of his liberty on the

transcript of testimony elicited in a prior proceeding—

at least where, as here, the witness was available to

testify afresh or, at a minimum, to be cross-examined

20

anew in the very proceeding in which the accused’s

liberty was at hazard. See, e.g., Barber v. Page, 390

U.S. 719 (1968), where this Court held that a state

hearsay exception was no defense to a confrontation

claim where the state made no good-faith effort to pro-

duce the absent witness. See also Motes v. United

States, 178 U.S. 458 (1900) ; Chambers v. Mississippi,

410 U.S. 284 (1973). This Court has recently held

that prior testimony may only be used at a criminal

trial—even when the witness had been subjected to

cross-examination in the prior proceeding—when ‘‘the

witness is [now] present and subject to cross-examina-

tion [and] there is ample opportunity to test him as

to the basis for his former statement.’’ California

v. Green, 399 U.S. 149, 154 (1970), citing 3 Wigmore

§1018. For, as Mr. Justice White noted, ‘‘it is this

literal right to ‘confront’ the witness at the time of

trial that forms the core of the values furthered by the

confrontation clause.’’ California v. Green, 399 US.

at 157. Indeed, in Mancusi v. Stubbs, 408 U.S. 204,

216 (1972), this Court held that a finding of unavail-

ability is a ‘‘requirement of the confrontation clause”

when testimony of a previously cross-examined witness

is sought to be used. In short, the fact that the witness

had been cross-examined in the prior proceeding does

not satisfy the Confrontation Clause’s requirement that

he be subject to examination and his demeanor exposed

to the fact-finder in the later proceeding. As put by

Mr. Justice Marshall, ‘‘The right to confrontation is

basically a trial right. It includes both the opportunity

to cross-examine and the occasion for the jury to weigh

the demeanor of the witness.”” Barber v. Page, 390

U.S. at 725.

21

Moreover, notions of fairness and due process pre-

elude use of prior testimony even in a civil proceeding

involving only money or property—absent a showing

that the witness is not now available. That is the rule

in Hawaii in ordinary civil cases. Levy v. Kimball, —

Haw. 540 (1970). See also Fed. R. Civ. Proce. 32(a)

(3), setting out the limitations on use at trial of a

non-party’s deposition.

In one trial, counsel may for good tactical reasons

elect to allow a witness’ testimony to proceed without

challenge, acquiesce in otherwise inadmissible testi-

mony, attack a witness from one perspective rather

than another, or follow some other course. Among

the legitimate considerations which a trial lawyer might

take into account are the witness’ demeanor on direct

examination ; the jury’s reaction to the witness and to

attacks upon him; the stakes involved—the amount in

issue and the availability of insurance or some other

source of indemnification; how the proceedings seem

to be going—i.e., the likelihood of an adverse result;

and the interests of other parties. See, e.g., Keeton,

Trial Tactics and Methods pp. 94-165 (1973 ed.). The

different setting of a second trial might dictate an

entirely different course of action.

The present case underscores the wisdom of this

rule, now of Sixth Amendment dimension, that the tran-

script of prior testimony, even when sworn and sub-

ject to cross-examination, may not be admitted in lieu

of live testimony of an available witness. In the State

Savings litigation, Corey has reason to believe that he

need not tackle the adverse witnesses in all-out fashion,

for he reasonably believed that plaintiff could not prove

22

damages.” Moreover, the special posture of the State

Savings case put Corey in a difficult position. There

were three defendants, each somewhat differently situ-

ated. Each had an incentive to put the blame, if any,

upon one or more of the others. Defendant Young did

follow such a tack, and with success—the jury did not

find against him on the ‘‘fraud’’ count. The harder

each defendant fought to extricate himself, the easier

it would be for plaintiff to sit back and pick up the

pieces. Corey, as a lawyer, was likely to be the most

vulnerable to mutual recriminations among the defend-

ants.”

Needless to say, in a proceeding in which Corey was

the only accused and in which his professional life was

at stake, an entirely different set of considerations

would apply. Here, he would have an unfettered oppor-

tunity to attack Brown’s glib assurance that he relied

on the value of the construction contract and not the

independent appraisal, and to challenge the testimony

of his former co-defendant Young. And in doing s0,

he would have the invaluable opportunity to put the

demeanor of the witness before the ultimate fact-

% The discrepancy between the two contracts bore no relation to

the damages claimed, and Corey knew at the time of trial that

plaintiff had made a handsome profit on the transaction—not the

‘*loss’’ for which it sought compensation. Indeed, the trial judge

set the jury’s verdict aside in response to these arguments, af.

firming the reasonableness of Corey’s position.

10The Supreme Court did point in its opinion in State Savings

to defendant Young’s effort to blame Corey—testimony Corey was

effectively restrained from challenging at trial but which he would

be free to attack in a subsequent disciplinary hearing.

23

finders." But the ruling of the Supreme Court of

Hawaii that he was to be impaled on the cold record of

the prior proceeding deprived him of any opportunity

effectively to confront his accusers.

Naked reliance upon the cold record of testimony

adduced in a prior proceeding, either civil or criminal,

is not uncommon in lawyers’ disciplinary proceedings.

See, Annotation, Admissibility in proceeding to inquire

into conduct of attorney, of evidence or record in sep-

arate proceeding involving or indicating his corrupt or

improper conduct, 161 A.L.R. 898, 901 (1945). But in

rejecting Corey’s argument that Ruffalo entitled him

to confront the witnesses against him (and he had

never any opportunity to cross-examine Campbell, his

surreptitious accuser), Hawaii seems to have gone

farther than other states. A few states, like Illinois,

apply their regular rules of evidence and exclude from

disciplinary proceedings all prior testimony except

where the prior witness is no longer available.’* Others

admit such prior testimony despite the availability of

He would have the right, as described in Mattox v. United

States, 156 U.S. 237, 242-243 (1895) to ‘‘a personal examination

and cross-examination of the witness in which the accused has an

opportunity, not only of testing the recollection and sifting the

conscience of the witness, but of compelling him to stand face to

face with the jury in order that they may look at him, and judge

by his demeanor upon the stand and the manner in which he gives

his testimony whether he is worthy of belief.’’

* See, e.g., People ex rel. Chicago Bar Ass’n v. Amos, 246 Il.

299, 92 N.E. 857 (1910), where the Court noted over a half century

ago that ‘‘It is not consonant with law or justice that the re-

spondent’s right to practice law should be determined upon evi-

dence which would not be competent against him if he were sued

for a debt.”’ Tennessee Bar Ass’n v. Freeman, 362 S.W. 2d 828

(Tenn. App. 1961).

24

the prior witness, on the theory that these proceedings

are not adversarial, but then permit additional exam.

ination as a matter of grace if not of right.” Whether

any other state relies on prior testimony without pro-

viding the accused an opportunity to cross-examine

before the disciplining body is not clear.’* What is

clear is that Hawaii’s ‘‘no testimony will be adduced”

rule is unconstitutional. If the ‘‘rule’’ is an anomaly,

its correction by this Court is essential to redress a

manifest violation of Corey’s rights, particularly where

as here Corey has had no appellate review.

Where witnesses whose prior testimony is relied

upon in lawyers’ disciplinary proceedings are avail-

able to testify or to be cross-examined, use of their

prior testimony without opportunity to cross-examine

before the ultimate factfinder raises substantial ques-

tions of fairness and constitutional right which need

to be addressed by this Court.

C. Petitioner Was Denied a Hearing by an Impartial Tribunal.

If the proceeding below had been a criminal prosecu-

tion, the publicly stated prejudgement by the fact-

finder and the ex parte contacts between the factfinder

and Corey’s accusers would require reversal here. As

Mr. Justice Holmes observed in Patterson v. Colorado,

205 U.S. 454, 462 (1907) ‘‘the theory of our system is

that the conclusions to be reached in a case will be

induced only by evidence and argument in open court,

and not by any outside influence, whether of private

13 See, e.g., People v. Howard, 364 P.2d 380 (Colo. 1961) ; Lou

isiana State Bar Ass’n v. Sackett, 231 La. 655, 92 So. 2d 571

(1957) ; In re Lacy, 112 S.W. 2d 594 (St. L. Mo. Ct. of App. 1937).

14 See In re Santosuosso, 62 N.E. 2d 105 (Mass. 1945).

25

talk or public print.’’ See Estes v. Texas, 381 U.S. 532

(1965). Due process also requires disqualification from

participating in governmental regulatory adjudication

which one has publicly prejudged. See, e.g., Texaco,

Ine. v. F.T.C., 336 F.2d 754, 759-61 (D.C. Cir. 1964),

disqualifying FTC Chairman Dixon from adjudging

a cause about which he had previously made a speech

containing censure like that addressed here to Corey.

The teaching of Ruffalo is that no less a standard should

apply when a lawyer is faced with disbarment or

suspension, for such a proceeding should remain un-

tainted by ‘‘private talk’’ or appearance of partiality.

Cf. Willner v. Committee on Character & Fitness, 373

US. at 106; Greene v. McElroy, 360 U.S. at 497-99.

This was an unusually aggravated situation. The

Supreme Court had prejudged the matter, and had done

so publicly. If it now found that Corey was not guilty

of misconduct, its harsh prior statement would become

extremely embarrassing. This is just the kind of

“possible temptation to the average man as a judge

... not to hold the balance nice, clear, and true... .’’

that must be avoided if due process is to be observed.

In re Murchison, 349 U.S. 133, 136 (1955), quoting

Tumey v. Ohio, 273 U.S. 510, 532 (1927). The Court

knew, although Corey did not, that it had been the

subject of a surreptitious campaign, conducted ex parte,

to poison the well. Yet it had no reason to insist upon

trying this matter itself. The long established prac-

tice in Hawaii, and the only one contemplated by its

own Rule 16(c), was to refer all such charges to an

impartial tribunal of commissioners. From their de-

termination, the Supreme Court of Hawaii would only

act as a reviewing body.

26

Despite the Court’s awareness that it had publicly

prejudged the case and had been subjected to “‘ private

talk,’”’ it went out of its way to depart from existing

procedure. It ignored its own Rule 16(c), and jerry-

built a special original proceeding before the one set

of factfinders who had already prejudged Corey’s case,

Corey was entitled to have his professional status

adjudicated by an impartial tribunal. His federal

constitutional right to that effect was not honored here.

The issue requires plenary review.”

15 Qn December 27, 1973, only one month after entering judg-

ment against Corey, the Supreme Court of Hawaii announced a

revision of its own Rule 16, dealing with disciplinary proceedings

against lawyers. The new rule, set out in Appendix E hereto, on

its face purports to guarantee to accused lawyers some form of

the rights denied to Corey. Accusations against lawyers are to

be referred to a professionally staffed commission, whose counsel

will conduct investigatons. An accused attorney is expressly en-

titled to written notice of the charges against him, ‘‘sufficiently

clear and specific to inform the respondent of the alleged mis-

conduct.’’ Rule 16.7(b) At any hearing on such charges, an ac-

cused lawyer is expressly entitled to ‘‘confront and cross exam-

ine’’ his accusers and to submit evidence. Rule 16.7(b). Any com-

missioner called upon to review an investigative report compiled

by the commission’s counsel is thereafter disqualified from sitting

as a judge in the matter. Rule 16.7(a) Following any determina-

tion by the commission, there is to be appellate review in the Su-

preme Court. Rule 16.7(c)

The new rule is noteworthy in several respects. It seems ex-

pressly to confer upon accused lawyers some form of the rights

denied to Corey. In consequence, it can hardly be argued that pol-

icy considerations require that accused lawyers in Hawaii be

treated as was Corey.

But enactment of the new rule does not obviate the necessity

for review by this Court. First, the new rule does not redress the

wkrong to Corey. Second, just as the Supreme Court concluded in

Corey’s case that it had inherent power to ignore the factfinding

procedure provided for in its own Rule 16(c) and substitute for

27

CONCLUSION

For the foregoing reasons, petitioner urges the Court

to grant the writ of certiorari to review the judgment of

the Supreme Court of Hawaii.

Respectfully submitted,

GERALD D. STERN

1775 K Street, N.W., Suite 700

Washington, D. C. 20006

Attorney for Petitioner Corey

Of Counsel:

SipNEY S. RoOsDEITCHER

DANIEL P. LEvitt

Pau, WEISS, RIFKIND,

WHARTON & GARRISON

and

Heten B. RYAn

1136 Union Mall

Honolulu, Hawaii 96813

March 28, 1974

it an original proceeding in the Supreme Court, nothing in the new

rule precludes the Court from doing so in a future case. In short,

the rule is effective only in those cases where the Court chooses to

apply it. Third, enactment of the rule does not ensure that accused

lawyers in Hawaii, or anywhere else, will be given their federal

constitutional right to fair notice of the charges against them,

to confront their accusers in the forum in which their conduct is

to be judged, and to an impartial tribunal. For absent a decision

by this Court that these rights apply, the Supreme Court of Hawaii

will be free to interpret the amended Rule 16 as a matter of state,

not federal law.