# Petition for Writ of Certiorari — Schlesinger v. Teitelbaum > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1127%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 414 U.S. 1111 ## Text statins | t ° — Supreme’ Cort urs a FILED : LIBRARY. * SUPREME COURT, U- 3s. JuL 7 173 —_—_————_— — MICHAEL RODAM, JR.,CLERK IN THE Supreme Court of the United States uw €37- 115 0. . eeceeeseee October Term, 1972 HYMEN SCHLESINGER and DAVID A. ITTENSLER, Petitioners, vs. HON. HUBERT TEITELBAUM, UNITED STATES DISTRICT JUDGE, Respondent, and POINT TOWING COMPANY, INC., RIVER TRANS- PORTATION, INC. and M. G. TRANSPORT SERVICES, INC., Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT HYMEN SCHLESINGER, ESQUIRE, ISADORE SCILESINGER, ESQUIRE, LOUIS C. GLASSO, ESQUIRE, 716 Carlton Ilouse, Pittsburgh, Pa. 15230, Counsel for Petitioners. BATAVIA TIMES, APPELLATE COURT PRINTERS EDWARD W. SHANNON, REPRESENTATIVE 1701 PARKLINE DR., PITTSBURGH, PA. 15227 412-661-7463 & INDEX. PAGE 1. Reports of Opinions in the Courts Below ........ 1 2. Grounds on Which Jurisdiction is Invoked .... 2 3. Statutes Conferring Jurisdiction to Review Judg- SE . & c55a4 kr ade teu e Gein es- (es ce dserenens 2 4. Questions Presented ........... ccc cece eee ences :2 5. Constitutiona! Provisions Involved in the Case .. 2 6. Statement of the Case ............ cee eee e eee 3 7, Reasons why the Writ should Issue ............ : oe TABLE oF Cases. American Trial Lawyers Association v. New Jersey Supreme Court, 34 L. Ed. 2nd 651 ................ 8 Bolling v. Sharpe, 347 U.S. 497 ......... 0.0.0.0 00 8 5 Cammer v. U. 8., 350 U. S. 390 .... 1... cece ee eee & Gair v. Peck, 160 N. BE. 2d 43 .................... Moore v. C/S Fram, 226 F. Supp. 816 (D. C. Tex.), affd. 338 F. 3d GES (5 Cir.) ....cccccccscccccens 6 ‘Shannon v. Cross, 222 N. W. 168, 245 Mich. 220 ...... 5 In re Southern S. S. Co., 185 F. Supp. 358 (D.C. Del.) = 6 = v. Industrial Com., 207 F. 2d 178, 115 Utah cheeses eCGRSGRCKS CAARIASECR OS OEERE RAS ER COCO 5 U.S. Bulk Carriers Inc. v. Arguelles, 400 U.S. 351... 6 Vaughan v. Atkinson, 369 U. S. 527 ................ 6 Washington-Southern Nav. Co. v. Balt. & Phila. Steamboat Co., 236 U. S. 629 .................. 7 TI. STATUTES. PAGE Federal Employers Liability Act, 45 U. S. C. A. 51 5 MPO PTT TT Te rT ereT TTT Tr eee TTT eer ee SE Oe, Ge We Ws Ge Bis UD ok eevee ccsesececcersess 6 28 U. S. C. 1264(1) and 2101(c) ............. ce eee 2 CoNsTITUTION. Constitution of the United States, Fifth Amendment 2 a a a Ev 1c avheteae cesabesvaeeenee 7 Local Rule 20 of the District Court .............. 4 IN THE Supreme Court of the United States October Term, 1972 HYMEN SCHLESINGER and DAVID A. HENSLER, Petitioners, Vs. HON. HUBERT TEITELBAUM, UNITED STATES DISTRICT JUDGE, Respondent, and POINT TOWING COMPANY, INC., RIVER TRANS- PORTATION, INC. and M. G. TRANSPORT SERVICES, INC., Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 1. Reports of Opinions in the Courts Below The opinion of the Court of Appeals for the Third Cir- cuit is reported in 475 F. 2d 137 and a copy is attached hereto. No opinion was filed by the District Court. SE RS TT ET TE Pee wa re 2 2. Grounds on Which Jurisdiction is Invoked The date of the judgment sought to be reviewed is March 9, 1973. Petition for Rehearing was timely filed and de- nied by the Court of Appeals on April 13, 1973. 3. Statutes Conferring Jurisdiction to Review Judgment Jurisdiction to review the judgment is contained in 28 U.S. C. 1254(1) and 2101 (¢e). 4. Questions Presented a. Does the District Court have the power sua sponte to set aside an agreement for counsel fees entered into between a seaman and his attorney? b. Does the District Court have the power to adopt and apply as a guide in seamen’s cases a fixed schedule of fees, and, if so, may it do so without notice to the bar and a full evidentiary hearing and other safeguards of pro- cedural due process? e. Are the actions of Judge Teitelbaum in this case dis- criminatory as applying only to seamen and violative of due process under the Fifth Amendment of the Constitu- tion? 5. Constitutional Provisions Involved in the Case The Fifth Amendment to the Constitution of the United States provides in part as follows: “Article V. No person shall . . . be deprived of life, liberty or property without due process of law, . . .” - 6. Statement of the Case 1. David A. Hensler, petitioner and plaintiff below filed an action as a seaman for personal injuries against Point ° Towing Company, Inc., River Transportation, Inc. and M. G. Transport Services, Inc., respondents in this proceed- ing (hereinafter referred to as defendants). The action was filed in the Untied States District Court, Western Dis- trict of Pennsylvania, at Civil Action No. 71-331. Hymen Schlesinger, petitioner, has been the attorney for plaintiff in said action, 2. In due course, the case came on for trial before Judge Hubert Teitelbaum and in the course of trial a compromise settlement in the amount of $17,500.00 was agreed upon by the parties with the assistance of the trial judge. The trial of the personal injury action was recessed and the Court proceeded to hold a hearing to approve the settle- ment. 3. At the said hearing the trial judge, stating that the Court was the guardian of the seamen and had the power to fix counsel fees, proceeded, over objection, to fix the fee of plaintiff’s attorney, Hymen Schlesinger. The Court was informed by plaintiff that counsel fees of one-third or 3314% of the settlement had been agreed upon by plaintiff and his counsel, but nevertheless the Court stated that he saw fit to follow as a guideline a schedule of fees fixed by the members of the Court in seamen’s cases. The Court stated further that he believed the fee he awarded to be fair. 4. Despite the fact that neither plaintiff nor his counsel requested any change in the fee contract, the Court sua sponte stated that he had the power to change the contract in a seaman’s case and, unless told by the “circuit” that he has no such power, it is his intention to do so, —_ os ae ROAST OM. pag ee ee oe ed me 5. Local Rule 20 of the District Court prescribes the procedure in the settlement of seamen’s cases and provides in paragraph (d) thereof that the Court may fix counsel fees. 6. Ata meeting of the Board of Judges of the District Court held April 20, 1971, the Board adopted a motion to amend the schedule of fees, namely, on the first $10,000.00— 334%; on the next $90,000—25% and on recovery in excess of $100,000—15%. This schedule was to prevail pending further study. 7. The schedule of fees was adopted without notice to the bar, either before or after its adoption, without any hearing whatsoever and without any statutory or other authority. 8. Subsequent to the hearing held by Judge Teitelbaum in this case, plaintiff’s counsel filed a petition requesting approval of the compromise settlement as required by local Rule 20 upon which the Court entered an order on De- cember 11 approving the settlement and directing that there be escrowed with the Clerk the amount of $625.00 representing the difference between the fee agreed upon between plaintiff and his attorney, $5833.33, and the fee fixed by the Court, $5208.33, pending resolution of the controversy. 9. Petitioners filed a petition for writ of mandamus and prohibition in the Court of Appeals which was denied on March 9, 1973. A petition for rehearing was also denied. ' § 7. Reasons why the Writ should Issue a. In the absence of specific statutory authority, the district court is without power to adopt by rule, resolution or motion in personal injury cases of seamen, a schedule of attorneys’ fees. Shannon v. Cross, 222 N. W. 168, 245 Mich., 220; Thatcher v. Industrial Com., 207 F. 24 178, 115 Utah 568. This amounts to creating a standard by which fees are to be gauged.and creates a presumption that fees higher than the schedule are excessive or exorbitant. b. Assuming arguendo but not conceding the proposi- tion that courts have the power to regulate fees, this is an adjudicatory power which comes into fruition when ad- versary interests are involved and an issue is created re- quiring production of evidence and other safeguards of procedural due process. Such power may also exist based upon the power of discipline over attorneys for charging unconscionable fees. Such power operates retrospectively and must he distinguished from the prospective operation of a rule or resolution adopted by the Board of Judges which amounts to judicial legislation, as well as prejudg- ing a case. ¢. The action of the Distriet Court is discriminatory in- asmuch as it applies only in seamen’s cases. Unlawful discrimination amounts to a denial of due process under the 5th Amendment of the Constitution. Bolling v. Sharpe, 347 U.S. 497. - d. The actions of the Board of Judges in adopting a fixed schedule of fees and the conduct of J udge Teitelbaum in applying it as a guide in this case constitutes an inter- ference with the right of contract between attorney and client and, since it diminishes the fee of counsel, it amounts to deprivation of property without due process in contra- vention of the 5th Amendment. 6 e. Congress in adopting the Jones Act, 46 U. S. C. A. 688 and the Federal Employers Liability Act, 45 U. S. C. A. 51 et seq., saw fit not to regulate fees of attorneys nor to confer any power on the courts to do so. f. Attorneys’ fees of 44 of compromise settlements over $10,000.00 have been found to be reasonable in Jones Act eases involving the death of seamen where fiduciaries brought the action and minor children were involved and where the District Judge properly had the power to fix fees. Moore v. C/S Fram, 226 F. Supp. 816 (D. C. Tex.), affd. 328 F. 2d 868 (5 Cir.); In re Southern S. S. Co., 135 F. Supp. 358 (D.C. Del.). It should be noted that in Penn- sylvania, courts are empowered by statute to fix fees in death actions, and as to minors, the latter are deemed in- capable of entering into contracts for attorneys fees in actions pending before a court. g. The theory of guardianship upon which the lower court predicated its actions confers no such power. The latest pronouncement that the court is the guardian of the seamen is U7. S. Bulk Carriers Inc. v. Arguelles, 400 U. 8S. 351. Neither that case nor any reported case on the guard- ianship theory contains any authority for adoption by court rule of a fixed schedule of fees. See e.g. Vaughan v. Atkin- son, 369 U. S. 527, where the Court refused to pass on the reasonableness of a 50% attorney’s fee since the matter had not been considered by the lower courts. h. Approval by the Court of Appeals of the fixed fee schedule and its application by Judge Teitelbaum sets a dangerous precedent throughout the nation. In this con- nection, the declaration at the hearing by Judge Teitel- baum: “T haven’t the slightest doubt the court can con- trol fees of anybody if they wanted to . . .” is an eloquent 7: claim of power to regulate attorneys’ fees generally de- pending: only on the. mere: exercise. by the: Court of volition. Tt cam: be easily seen that: the action of the Distriets Court and Judge Teitelbaum is an opening wedge toward reguia- tion of contingent fees in all tort litigation. i. The Court of Appeals concludes that the Distriet Court had the power to adopt the rule of April, 1971 (Op., p. 9). Such conelusion js premised im part on this Rule 83 of the F.R. C. P. There are several things wrong with this holding. First, Rule 83 requires that local rules “shall upon their promulgation he furnished to the Supreme Court.” The prescribed fee schedule was secretly adopted “pending fur- ther study of the problem”. Tt was never published nor was any notice ever given to the bar before or after its adoption. The rule is invalid since it affects substantive rights of counsel] and client. Local rules govern procedure only and may not affect substantive rights, Washington-Southern Nav. Co. v. Balt. & Phila. Steamboat Co., 236 U. S. 629, 635. It may be theoretically argued that the rule prescribing a schedule of fees is merely procedural, but actually and realistically it is substantive and has criminal sanctions built into it. The rule in question establishes a schedule of fees. The Court of Appeals in construing the rule stated in its Opinion, p. 2, that it provides that such fees as guide- lines shall be considered fair and reasonable and fees in excess of the schedule “shall constitute unreasonable com- pensation in violation of the Code of Professional Re- sponsibility of the American Bar Association”, tA Raver nin Shee Beattie j. The Court of Appeals erroneously equates the power of the District Court to adjudicate a specific controversy over counsel fees with the legislative power to fix a stand- ard of fees. k. The case of Gair v. Peck, 160 N. E. 2d 43, does not support the conclusion of the Court of Appeals. Strong reliance is placed upon Gair in support of its conclusion that the district court has the power to adopt a rule fixing a schedule of fees. However, Gair is a slender reed for a number of reasons, the chief one being that the Court of Appeals of New York validated the rule as being within the statutory power. 160 N. E. 2nd at p. 53. The Opinion in our case, p. 7, appears to base its deci- sion in part on the Court’s “supervisory power over the members of its bar . . .” This probably refers to the con- cept that attorneys are officers of the court. This doctrine has strict limitations. Cammer v. U. S., 350 U. S. 399, 405. In view of the limitations on the doctrine in Cammer, the basis of the Court’s Opinion here is illogical, creating as it does a presumption of unprofessional conduct sub- jecting the attorney to penalties for charging fees in ex- cess of the schedule. Truly, the contested rule has criminal aspects. ]. The issues involve questions of exceptional import- ance as well as serious constitutional questions of due pro- cess, unlawful discrimination, impairment of contract, ret- roactive application of the rule, and potential criminal sanctions. In this connection we respectfully direct the court’s attention to American Trial Lawyers Association v. New Jersey Supreme Court, 34 L. Ed. 2nd 651. In that BENGE TM PG OAR) alt PERE 9 case the Court unanimously reversed a dismissal of an action involving several Similar issues, Although the de- cision was based on the abstention doctrine and the Court F did not rule on the merits, nevertheless we believe that the f Court recognized by implication the substantiality of the issues. That case involved issues of violation of federal constitutional rights by the State Supreme Court in adopt- ing a rule fixing the schedule of fees in tort cases, m. This petition presents the issue of the district court’s power to legislate judicially in the matter. Unless your Honorable Court grants review of the actions of the lower courts, there is likelihood that the actions of the courts below will serve as a precedent for similar actions in other circuits. Wherefore, petitioners respectfully pray your Honorable Court to grant a writ of certiorari directed to the Court of Appeals for the Third Ci reuit and to the District Court for the Western District of Pennsylvania commanding them to certify the record in this cause so that the matter may be reviewed by this Court. HYMEN SCHLESINGER, ISADORE SCHLESINGER., LOUTS C. GLASSO, Attorneys for Petitioners. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1127%3A1. Public record. Not legal advice.