Petition for Writ of Certiorari — Bogatin v. Suffolk County Bar Ass'n

2 ritLt&®

APR y 1976

2 om tibhnad ie

~~ er eee

LIBRARY _ Supreme Court U. &

| MICHAEL RODAK, JR, CLERK

In THE

Supreme Court of the Anited States

Peete

October Term, 1975

MURRAY BOGATIN,

Petitioner,

cae eee wD a RE RE ae a

-against-

SUFFOLK COUNTY BAR ASSOCIATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE DIVISION OF THE SUPREME COURT

OF THE STATE OF NEW YORK, SECOND

JUDICIAL DEPARTMENT

Murray BoGaAaTIN

Attorney for Petitioner

286 Handsome Avenue

Sayville, N.Y. 11782

(516) 589-3774

aT SS a1 8, RY San Ro ee

ara ai} ah .

PMNs ih 9 B88

ELEN GLEE, OE LOLOL EIN

TABLE OF CONTE?.TS

Citations to Opinions Below . « « « «

Statement of Jurisdiction .« « « « « «

ae)

»

» = ee

@

Questions Presented . .« - + «+ * © «

Constitutional Provisions

and Statute Involved . .« « e+ «+ « » a

re ee ¥ i gr

Statement of the Case . « « « © « « » 4

i I. This Court Always has

Protected Constitutional

Rights in Matters which

Generally Are Mostly of

Local Concern . « e «© © © «© « e 7

II. Section 90(2) of the

Judiciary Law of the State

of New York is Unconstitutional

on the Ground it is an

" Improper Grant of Legisla-

tive Power to the Appellate

D ivi s ion @ e @ e e e e @ se oe oe es 9

aad ite ail)

mess Oa?

III. Rejection by the Appellate

Division of the Material

Submitted by Petitioner in |

Mitigation of Punishment :

Violated Due Process and

Equal Protection of the Laws . . ll 4

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Iv. The Order Suspending Petitioner

From the Practice of Law

is an Improper Product

of Selective Prosecution

and Punishment and Thus

Violates Due Process and

the Equal Protection Clause

Conclusion. e«+x«eeeee8 © ©

w

LLNS GL SRE A agree =, aa sah _

oy SBT AE ERR NG ELBE RE IRS GRIER PY PERL BGT

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FRE LE EERE NIO ARR Ee BALI

17

24

Cha PR Ty gga

Teste oe |

APPENDICES

A = Opinion of Appellate Division of the Supreme

Court of the State of New York, Second

Judictal Department, Suspending Petitioner.... Al

DecIsion of Court of Appeals of the State of New

York denying leave to appeal ...seeeeeeeeeeees A3

C - Order of Appellate Division of the Supreme Court of

the State of New York, Second Judicial

Department, Suspending Petitioner ....+++++++- Al

D = Order of Appellate Division of the Supreme Court

of the State of New York, Second Judicial

Department, Denying Reargument and Leave

to Appeal ...cececccecccccccnnscessssorcsseses A6

PODMNR COPY

iv

TABLE OF AUTHORITIES

A.L.A. Schechter Poultry Corporation v.

United States, 295 U.S. 837 eeeeeeeseseeeeeeeeeeee 10

Armstrong v. Manzo, 380 UsSe 545 ccccccccoescecess 8

Board of Regents v. Roth, 408 UcSe 564 covvcseseses 8

Carter v. Carter, 298 U.S. BBB ccccccccsescocosoce 88

Cherry v. Kegents, 289 NeYo 148 coccccccesoceerere 10

Erdmann v. Stevens, 458 F.2d 1205 coccecccccccsens 8

Grannis v. Ordean, 234 U.S. BBS cocccceccceseseses 8

Greene v. McElroy, 360 UcSe 474 eocveccecscesssess 9

In Re Cohen, 43 A.D. 2d 403 eccccccsecseese 15,16,23

In Re Dagher, 370 N.¥.S.2d O50 ccasdccecedessesess «680

In re Entes, 39'AsDs. 2d 182 coocccececcosecccers 15,23

In Harrison, 47 AcD.2d 259 eeeceeereseevevesee® 24

Herman, 37 AsDe 2d 315 eoscocceeecssecerese® 20

In

In

Re

Re

In Re Impellizzeri, 31 A-D.2d 134 seececerecrecs 16,24

Re Kanarek, 33 AsDeo2d 280 cocccoeecesesesesere® 21.

Re

In Lentini, 43 AsD.2d 479 eeeceeecervere 14,16,23

In Re McKneally, 44 A-D.2d 610 ceveeeecevesererers 14

In Re ROSS, 38 AsDe2d 9B coecseceesesoseresrre® 14,23

In Re Ruffalo, 390 UsS. 544 ecoccevevcesessoserer® 7

In Re Sala, 11 A.D. 2d 425 ccccceceeeeeseeeseeseee 20

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Pe |

'

FE ROI 2 RPE s. eT

In Re Siegel, 47 A.D. 2d 461 cocccccsssceve

In Re Stevenson, 39 A.D. 2d 355 coccccccces

Julius Gerzof, Levin and Mildner v.

Appellate Division, — eee (decided

March 29, 1976) COSOOSOHSOHHOSCHOHOSOHHSHHOSCOCS

Keller v. Potomac Elec. Power Co., 261

U.S. 428 5b'eh 6606066685 SS OSE 99H OOO HOF OR OHO?

Law Students Civil Rights Research

Council, Ince V- Wadmond, 401 U.S. 154,

174 (1971) SUSSSDSECTESCESSOOE CEE OOO DOD OS OCS”

Matter of Castellano, 361 AeDe 2d 23 coccee

People v. Papandon, __ AeD. 2d es 329

Ne¥.Se 2d 1000 PTT TTTTT TT

Seignious v. Rice, 273 NeYeo 44 coccncesesee

Smith v. Goguen’, 415 UeSe 566 coccsceeceees

Spevack v. Klein, 385 U.S. S1L ccocccccceses

Willner v. Comm. on Character and Fitness,

373 U.S. 96 (1963) eoccecceceocasoseooeeseee

Wisconsin v. Constantineau, 400 U.S.

433 (1971) 0606S OOF COHDOCEHO COOH SEO OCBO OOS

SIL GREG IG GIN IRE LED AN VILE GLOVE tb

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Page

14,23,23

23

10

a te

In the

SUPREM? COURT OF THE UNITED STATES

Ocrone2 T=, 1975

CTR NT PON RE Te VES

MURRAY ®OGATIN,

Petitioner,

-against-

SUFFOLK COUNTY BAR ASSOCIATION,

Respondent.

PETITION FOR A \'RIT OF CERTIORARI TO

THE APPELLATE DIVISION OF THE SUPREME

COURT OF THE STATE OF NEW YORK, SECOND

JUDICIAL DEPARTMENT

Yo The Honorable Chicf Justice Anc The Asso-

ciate Justices of The “‘%upreme Court of The

United States:

Your petitioner, Murray ‘oratin, prays

that a writ of certiorari issue to review an order

and decree, entered on October 6, 1975, of the

Appellate Division of the Supreme Court of the

State of New York, Secon’ Judicial Department,

which suspended petitioner from the practice of

law in the State of New York for a period of

six months and until the further order of the

Court. On January 8, 1976, the Court of Apneals

of the State of Now York denied petitioner's

motion for leave to appeal to said Court fron

the order of suspension.

PELE ARTE HP ET NE PRN EU TENR

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CITATIONS TO OPINIONS BELOW

Tne opinion of the Appellate Division

of the Supreme Court of the State of Nev York,

Second Judicial Department, has not as yet becn

reported, but a copy of that opinion is annexec

hereto as Appencix A.

The Court of Appeals of th> State of New

York in denying leave to appeal rendered no

opinion, but a copy of that decision is annexec¢ :

hereto as Appendix B. ‘Same likewise has not '

yet been reported.

STATEMENT OF JURISDICTION

The statutory provision believed to con-

fer on this Court jurisdiction to review the

order and decree in question is 28 U.S.C.

#1257(3). Petitioner also claims that his

rights to due process and the eaual protection

of the laws under the Fourteenth Amendment to

United States Constitution were violated when

he was suspended from the practice of Law.

QUESTIONS PRES eNT=D

of the State of New York unconstitutional and van:

on the ground that it eives the AnpeLlLate Divisio:

attorney convicted of a misdemeanor without set-

ting forth any legislative guidelines, that is,

no standards are set as to which particular mis-

demeanor should be disciplined and no differenti-

ation is made as to what conduct requires censure

or suspension or disbarment on the part of a con-

victed attorney?

FLEED THF OUGH —

ie A I RENEE TRS OTR AL SAE FLA DT NRE I OE RI TP ILE ERLE

2, Do the due process and equal pro-

tection clauses of the XlVth Amendment entitle

an attorney-respondent in a disciplinary pro-

ceeding to introduce his military, profession-

al and familial-community record in mitigation

of punishment?

3, Do the due process and equal pro-

tection clauses of the “IVth Amendment entitle

petitioner to receive treatment no harsher :

than other attorneys similarly situated? 3

:

CONSTITUTIONAL PROVISIONS :

AND STATUTE INVOLVED {

United States Constitution Amendment “IV: i

‘

"Section leeeNno state shalleee :

deprive any »erson of...property, F

without due process of law nor 4

deny to any person within its E

jurisdiction the equal protection 4

of the laws." 3

New York State Constitution Article III, #1: |

2

"The legislative power of this 5

State shall be vested in the ;

Senate and Assembly."

New York State Judiciary Law Section 90(2): :

&

"...ethe appellate division of the &

supreme court in each department :

is authorized to censure, suspend 4

from practice or remove fron :

office any attorney and counsellor- 3

at-laweeewho is guilty of... mis- ;

demeanor..." :

4

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Stes Pr ee ee ee es AERO. . — Net RE A SOIROOS R een as “CAR FLIES in ghee GRINDS DARIN AD ITI

STATEMENT OF THE CASE

Petitioner has been an attorney admitted

to practice in the State of New York for twenty-

five years. On November 21, 1973, upon a vo~ F

} luntary plea, petitioner was convicted of attempted ©

criminal contempt in a New York local court and

was fined the sum of $1,000. On January 28, 1976

; a petition for a writ of certiorari from that

criminal conviction was filed by petitioner in |

this Court. As yet no decision is known to il

petitioner and the Court is respectfully referred —

to that petition fo: the facts surrounding

the criminal conviction.

On October 6, 1975, the Appellate

Division of the Supreme Court of the State of

New York, Second Judicial Department entered an

order suspending petitioner from practice for a

period of six months to commence on November 1, i

1975. A copy of said order is annexed hereto as

Appendix C. By order dated November 5, 1975,

the Appellate Division denied petitioner's motion

for a stay of proceedings pending application for

leave to appeal to higher courts. A copy of

said order is annexed hereto as Apperidix D. 2

The Court of Appeals of the State of New

York is the highest judicial tribunal and when

said court denied leave to appeal from the order

of the Appellate Division (Appendix B) on

January 8, 1976, state remedies were exhausted.

Although that suspension order sought to e|

be reviewed first became effective on November 4

1, 1975, such effective date was extended by the

Appellate Division by intermediate applications

to April 10, 1976.

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2 GME Tie ee eee ae

J DAS TD a CRESS WR BIN 227

ee mre x ee ed SS RE A LY SECO TILT

x

Section 90 of the New York Judiciary Law,

29 McKinney's (1968) governs New York's procedures

for disciplining attorneys. Accordingly, disci-

plinary proceedings were thereafter instituted

against petitioner in the Appellate Division. fi

The sole charge therein was that petitioner was

convicted of the aforesaid crime of attempted

criminal contempt and that such conviction was

professional misconduct. Ultimately, the

Appellate Division held that the disciplinary

charge was sustained and thereby suspended

him from the practice of law for a period of

six months. (Appendix Cc) Also see Appendix A

which states that petitioner “was charged with

professional misconduct in that eee he pleaded

guilty ... to the crime of attempted criminal

contempt." This of course is compatible with

Section 90(2) of the New York Judiciary Law

which states that "the Appellate Givision eee

is authorized tO eee suspend from practice eee.

any attorney eee who is guilty Of eee misdemeanor. ®

The aforesaid disciplinary proceedings

were instituted by service of a petition by the

respondent upon the order of the Appellate

Division. An answer thereto was interposed

by petitioner. The matter was then referred

by the Appellate Division to Honorable David

L. Glickman, a justice of the Supreme Court of

the State of New York, to hear and report.

Ultimately the Appellate Division confirmed the

report filed by the referee. (See Appendix C)

1. See petition served and filed in the

disciplinary proceeding.

ees ge gee A . ———————— A

BS RENEE TSI RE NT ANAESTH

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Pi At RRL pts

The referee concluded that petitioner's

mi.sdemeanor qonracteon “constitutes professional

misconduct". The Apgei late Division agreed

with such conclusion.

Thus, the Appellate Division and the

referee each determined that a misdemeanor

conviction, per 3, is professional misconduct.

The Referee did not give zeny opprobrious

characterization to the convictior. or any acts

of petitioner. As a matter of fact it would

appear that the report is meticulously absent

of any adjectives.

It is also important to note that the

Referee at no place or time made any express

finding that petitioner failed to answer

questions before the grand jury or was other-

wise contemptuous.

The Appellate Division, likewise, in its —

order and clecision disciplining petit:ioner

made no derogatory characterization as to the

criminal conviction nor to petitioner's conduct.

Federal and constitutional issues

were raised by petitioner in the answer filed

by him in the disciplinary hearings, the motion

for re-argument and leave to appeal before the

Appellate Division and again on the motion to

the Court of Appeals for leave to appeal. Since

these motions were all denied, it is clear

2. See page A2 of Appendix.

3. See page A2 of Appendix.

a

— ARERR SAAN ,

TRS PRE BEY APMIS LONI IE SOLITON SED SO BEE NN EL IIS 7S HLT

RLEED THROUGH ee

¥ Paper “ eS nan ote e Z —T

that petitioner's federal and constitutional

arguments were rejected by the New York Courts.

REASONS FOR GRANTING THE WRIT

I. THIS COURT ALWAYS HAS PROTECTED

CONSTITUTIONAL RIGHTS IN MATTERS

WHICH GENERALLY ARE MOSTLY OF

LOCAL CONCERN.

Petitioner recognizes that this Court,

as well as lower federal courts, are reluctant

to interfere with the disciplining of attorneys

in the various individual states. As per

the very recent Julius Gerzof, Levin, and Mildner

Ve Appets Division, _ U-S.__ {deci e

Marc ’ e

However, where substantial constitutional

rights are concerned this Court has not hesi-

tated to intervene. See Spevack v. Klein,

385 U.S. 51l.

Because of the sanctions involved this

Court has characterized disciplinary proceedings

as being of a “quasi-criminal nature.”

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

Thus, the private interest affected by a disci-

plinary proceeding is substantial indeed.

"xe* [I]t cannot be disputed that for

most attorneys the license to practice

law represents their livelihood, loss

of which may be a greater punishment

than a monetary fine. [Citations

omitted.) Furthermore, disciplinary

measures against an attorney, while

posing a threat of incarceration only

in case of contempt, may threaten

val

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another serious punishment - loss of

professional reputation. The stigma

of such a loss can harm a lawyer in

his community and in his client

relations, as well as adversely affect

his ability to carry out his profes-

sional functions ***",. Erdmann Vv.

458 F.2d 1205,

Stevens

CGir.), cert. denied, 409 U.S. 889

(1972).

While it takes no citation of case to

establish the proposition that New York has a

need, indeed an obligation to provide effective

attorney discipline, the means by which it does

so must be weighed against the significant

private interests affected. And, therefore,

the decisions of this Court teach that "***

when a State seeks to *** disbar a lawyer, it

must proceed according to the most exacting

demands of due process of law". Law Students

Civil Rights Research Council, Inc. V. Waamond,

FOL U.S. 154, 174 (1971) (Black & Douglas,

JJ., dissenting).

No matter how closely one parses the

concept of due process it is beyond dispute

that at the minimum, the XIVth Amendment

requires a full and fair opportunity to be

heard, Grannis v. Ordean, 234 U.S. 385, 394

(1914); and further, that the hearing "***

must be granted *** in a meaningful manner."

Armstrong v. Manzo, 380 US. 545, 552 (1965).

This is particularly true when, as here, a

person's good name, integrity, reputation or

honor is at stake because of governmental

action. See, @€.g., Board of kegents v. Roth

408 U.S. 564 rset; Wisconsin v. Constantineau,

400 U.S. 433 (1971); Wiliner v. Comm. on

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FRNA, IONE LE EO LY OLE SEMI,

rete pe

ener idea. ine de

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+

Character and Fitness, 373 U.S. 96 (1963); 4

Greene v. McElroy, 300 U.S. 474 (1959). :

II. SECTION 90(2) OF THE JUDICIARY

LAW OF THE STATE OF NEW YORK

IS UNCONSTITUTIONAL ON THE

GROUND IT IS AN IMPROPER GRANT

OF LEGISLATIVE POWER TO THE

APPELLATE DIVISION.

FS ALR TE LOE NOR

Section 90(4) of the N.Y. Judiciary

Law provides for automatic, immediate

disbarment of an attorney convicted of a felony. |

This statutory language is clear and explicit. :

The legislature has spoken and there is no

doubt as to what was said. No judicial

exercise is needed.

However, it is not so with those

convicted of a misdemeanor. The legislature

has not mandated that all attorneys so con- 3

victed shall be disciplined. Section 90(2) 5

merely provides that the Appellate Division :

"is authorized" to discipline attorneys con- :

victed of misdemeanors. Thus, the Appellate

Division is not even required to discipline

all such attorneys. That Court decides

which ones will be punished and which ones

will remain free from punishment. No guide

lines are even set forth by the legislature.

It is respectfully submitted that

such a grant of power and vagueness is an

unconstitutional delegation of legislative

power to the Appellate Division by the New

York State Legislature and should now be

struck down.

=-9-

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YUPPTHS PES wh

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pennant hse SOE - — . .

— tae ee ee ns NS ie eer Ee ee Seen,

The Constitution of the State of New

York, Article III, Sec. 1 provides as follows:

"The legislative power of this

State shall be vested in the

Senate and Assembly."

A violation of that article can be

corrected by this Court through the due

process clause of the XIV Amendment.

Likewise, for the punishment to be

handed down for disciplinary sanctions

Section 90(2) empowers the Appellate Division

to "censure" or “suspend” or even disbar such ;

an attorney. Since no guidelines are set

out for cases requiring censure, suspension

or disbarment, the Appellate Division again

finds itself improperly exercising a legis-

lative function. The Appellate Division

should not be permitted to retain such

unconstitut:ional power. Section 90(2)

should be declared unconstitutional in its

entirety. See the cases of,

DOS Leet ater

Smith v. Goguen, 415 U.S. 566,

Carter v. carter, 298 U.S. 238,

‘ A.LeA. Schechter Poultry Corporation

“ Vv. United States, 295 U.S. SST.

Keller v. Potomac Elec. Power Co.,

Rl, whe Pr.

Poe RR eS

' S61 U.S. 420,

; Cherry ve Regents, 289 N.Y. 148, and

: Setentous ve Rice, 273 N.Y. 44.

BN TNS EN AM RN PML te

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Pei a os EAS RIOT Pec 2 SRN RISES A > Sor

IIf£. REJECTION BY THE APPELLATE

DIVISION OF THE MATERIAL

SUBMITTED BY PETITIONER IN

MITIGATION OF PUNISHMENT

VIOLATED DUE PROCESS AND

EQUAL PROTECTION OF THE LAWS.

Although severity of punishment

generally is not a subject for review by this

Court, it is respectfully submitted that the

rejection of certain material presented by

petitioner for the purpose of mitigating

punishment created a substantial constitu-

tional issue which should now be reviewed.

In this connection petitioner sub- 4

mitted a number of letters to the referee from

' judges, a rabbi and a veteran's organization.

| These letters referred to his court appear-

ances, military service and awards, and family E

status. However, the referee rejected such

letters. It is now contended that the letters

should not have been rejected and the

Appellate Division should have taken cognizance

of the contents of same. :

Py ATE ION ROE EIS NE

A letter from Veterans of Foreign Wars

shows that petitioner is a decorated veteran

of World War II, having participated in aerial

| combat over enemy land.

4. Said letters are set forth as Exhibits F

to N in petitioner's motion for leave to

appeal to Court of Appeals of the State

of New York.

q

:

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ee (ran . - TA Sete ta oe <a se ee

bm — 7 FLITE Dae AE EIEN ANGLE LRRD SAB LG PLS GS PE DIOL

bt CAM

Another letter from a cleryyman

indicated petitioner's proportion as a

husband and father.

: The following comments pertaining to

5 petitioner were submitted by several judges:

"eI have found him to be zealous and

forthright in the representation of

his clients, and at no time did he

ever exhibit before me conduct which

; might be considered a violation of .

é the Code of Professional Responsibi- ‘

i lity." Supreme Court Justice 4

Thomas M. Stark.

SPR IE LET PG CE

“He has appeared before me many times,

and in each instance has been forth-

right, respectful and courteous to i

the Court." Supreme Court Justice q

elect Raymond L. Wilkes, Administrative ~

Judge of County Court of Nassau

County.

“On each occasion that he appeared

before me he conducted himself in an ;

honest, forthright and courteous manner. :

I would further add that Mr. Bogatin f

| is a knowledgeable attorney and :

counsellor and has always demonstrated

the utmost competence in the repre- ;

sentation of his clients." County :

Court Judge Oscar Murov.

“He has appeared before me on many

occasions, and has always represented

his clients with competence and never

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eR Ape TaN antl nears awe

at ate . ’ we et : : . . .

Sa marRI TON PANEL MoD LMA PANNING as BENATLD I NIN ENE AP

has sought to avoid any appearance

before me. :

At all times I have found him to be ]

truthful and properly respectful ‘

to the Court.

As an active criminal trial attorney ;

he has facilitated the daily business

of the Court, and I trust he shall

be able to continue such endeavors ;

in behalf of the Court as well as

for his clients." District Court

Judge John Copertino.

"That in every instance before the

Bench, and in private practice he has

been honest, forthright and courteous

to the Court." District Court Judge

Rudolph L. Mazzei.

SENT R SET ERE

Nes tk Ma St

LOE POLES

INT PALER AL LINDE BCL LGD ILL II OE

"..eMurray has appeared before me in

b a number of criminal matters and has

always treated me with the utmost

respect and courtesy.

I have found him to be an extremely

knowledgeable and competent attorney."

District Court Judge Alfred M. Lama;

annexed as Exhibit "M".

"... Mr. Bogatin has appeared before

me on numerous occasions and I have

found him to be conscientious, diligent

and competent with respect to his

ability in representing litigants

before me in the District Court of

the County of Suffolk.

all Salad

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I have always found him to be

extremely helpful and courteous

in his dealings with the Court.”

District Court Judge William

M. Perrye

In disciplinary proceedings it always

has been standard operating procedure to

include personal references as to professional 4

competence, military service and family statuse ~

Thus, while the disregard of peti-

tioner's letters by the prosecutor, referee

and Appellate Division is somewhat graceless,

it is respectfully urged that such is highly

prejudicial, violative of petitioner's rights

and contrary to well-established legal ;

authority.

The various Appellate Divisions have

always accepted such references as to reputation.

See the following cases: :

ee a

1. In Re Lentini, 43 A.D. 2d 479, :

wherein the court relied upon the

attorney's "reputation among officials". ©

2. In Re Siegel, 47 A.D. 2d 461, wherein

the court likewise recognized the fact

that "Numerous letters were submitted

attesting to the writer's personal

or professional regard for respondent".

3. In Re McKneally, 44 A.D. 2d 610, wherein ©

the court "considered" the attorney's ;

"public service".

ere

4. In Re Ross, 38 A.D. 2d 98, wherein

court noticed the “high regard in which

Pa pie Fy eo al

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respondent is held in the community".

5. In Re Cohen, 43 A.D. 2d 403, wherein

court gave credit to the attorney's

familial status by observing that

he is “married for some 27 years and

the father of two children”.

6. In Re Entes, 39 A.D. 2d 182, wherein

the attorney had recommendations from

“members of Judiciary" and he was

"married since 1938" and had two

sons and daughter.

In view of the consistency of the fore-

going cases, how can there be any justification

for the rejection of the letters herein?

During World War II petitioner served

in the army air force. He was a lieutenant

and, as a bombardier, he flew 25 combat

bombing missions over Germany with the Eighth

Air Force. His military awards include the

Air Medal with three oak leaf clusters and

the European Theater Operations ribbon with

three battle stars. When the war ended,

petitioner received an honorable discharge.

This information, too, was excluded by

the Referee and court. Such exclusion has no

reasonable explanation and violates the consti-

tutional concept of equal protection of the law.

@1$<

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SA A TINE OS ae

— os ee ee

Is there a felon of the most severe

e who has had his military service

record excluded from his probation or

pre-sentence report?

This unseemly omission is parti-

cularly incredulous in view of prior

judicial decisions in disciplinary matters. ;

See the following cases:

DAME RIE.

t

1. In Re Lentini, supra, wherein the

attorney's "Jistinguished military

record” was cited.

2. In Re Cohen, supra, the court

noted that “During World War II

respondent served in the armed

forces overseas and was discharged

with the rank of Captain."

3. In Re llizzeri, 31 A.D. 2d

137, a court recognized that

the attorney was “engaged in

outstanding military service «+.

during World War II".

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igi NF IES yer + ED A PIRI ER ON RD RET nes SI

IV. THE ORDER SUSPENDING PETITIONER

FROM THE PRACTICE OF LAW IS AN

IMPROPER PRODUCT OF SELECTIVE

PROSECUTION AND PUNISHMENT AND

THUS VIOLATES DUE PROCESS: AND

THE EQUAL PROTECTION CLAUSE

Although it is recognized that no two

cases are “exactly alike,” an evaluation of

similar cases will show the "shabby" treatment

afforded petitioner by his home court.

As far as petitioner can determine,

no attorney guilty of contempt alone has been

suspended from practice in New York.

Furthermore, in a large number of cases

where attorneys have been convicted of crimes

more serious than the circumstances herein,

no suspensions were imposed upon the respective

individuals.

In contempt situations involving

disciplinary proceedings the Courts generally

have done no more than censure the attorneys

involved.

A most recent decision is that of the

same Appellate Division entitled Matter of

Castellano, 361 A.D. 2d 23.

i bo st

Therein, Mr. Castellano was convicted

on his plea of guilty, in the United States

District Court, of fifteen counts of contempt

pursuant to section 401 of title 18 of the

United States Code and subdivision (b) of rule

42 of the Federal Rules of Criminal Procedure

and fined the sum of $500.

ee

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The contempt citation arose out of

respondent's representation of several

defendants in a criminal jury trial.

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The contempt charges were as follows:

“The specifications charge generally

that on numerous occasions during

the trial the respondent made

insulting and disrespectful remarks

to the court and interjected

improper and sarcastic comments

during the proceedings. The

following examples will suffice

to illustrate his behavior:

During the direct examination of a

witness by the prosecutor, the res~

pondent asked the court, within

the hearing of the jury ‘Are you

permitting the nonsense that is

going on in this courtroom?'

Tne respondent interrupted the

prosecutor's examinat-ion ofa

witness to declare that the pro-

ceedings were a ‘farce’.

During his cross-examination of

a witness, the respondent gratu-

itously informed the jury of an

item of information relative to

the trial which had appeared in

a newspaper.

During the cross-examination of

a prosecution witness with a

criminal record, the respondent

characterized the witness as ‘the

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scum of the earth," said that

the prosecutor was ‘as bad as

he is’ and concluded his exami-

nation by saying, ‘I think I

have to throw up.’

During the cross-examination

by an attorney for a codefendant

of an expert witness testifying

as to the probabilities of

picking the winners of harness

races, the respondent interrupted

the proceedings by suggesting d

that each member of the jury be é

given $100 by the Government 3

and taken to racetracks.

While the court was conducting

a sidebar conference with other

attorneys participating in the

trial, the respondent approached

the jury box and held private

conversations with the foreman

and another member of the jury."

The holding of the Appellate Division

is set forth as follows:

LN ALOE TET ET FOWL PNY eo I

"We find that the acts committed

by the respondent were grossly 4

disrespectful to the court and ]

a violation of accepted and

proper courtroom decorum. Such

conduct is intolerable, for it :

destroys confidence in the fairness

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a. Maange ‘ MOTE IE (PT CATERERS oF on’ RENEE oS OA

of judicial rulings and judgments

and perverts the trial procedure

as a serious search for truth."

In conclusion the Court merely censured

the respondent as follows:

"In view of counsel's long

service at the bar and the

fact that he has already been

convicted and fined in the ;

United States District Court,

we deem <he appropriate and

adequate measure of discipline

to be a public censure.

Accordingly, the responder.t

is hereby censured for his

misconduct."

It is respectfully urged herein that :

petitioner's position is quite similar to

that of Mr. Castellano. Respondent has been

at the bar for more than twenty-three years

and has already been convicted and fined.

Likewise, it is respectfully submitted

that no different measure of discipline

should have been administered herein.

For similar holdings see the cases of

(a) In re Herman, 37 A.D. 2d 315, wherein an

attorney committed contempt in two different

trials and was merely censured for this conduct ~

which was held by the Court to be “disorderly,

contemptuous and insolent ee. directly tending

to disrupt the order and decorum of the Court",

and (b) In re Sala, ll A.D. 2d 425, whereby

an attorney again was merely censured for acts

Ey Tee

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a

classified by the Court as “conduct as a whole

was evasive and equivocating” and as such

"unethical and ... prejudicial to the proper

functioning of our courts eee warranting

disciplinary action."

EAC NORNS DOTNET ARI HRY RIE SICH TY

In re Kanarek, 33 A.D. 2d 280, is

another recent case which has application

herein.

Therein an attorney was charged with

a thirty-count federal indictment claiming

a scheme to defraud purchasers of securities.

He took a reduced voluntary plea to

a single misdemeanor under the 30th count

of indictment in full satisfaction of sane.

Then for conviction of the crime of conspi-

racy as a misdemeanor, he received the

following sentence:

1. Fine in the sum of $1,000; and

2. Imposition of a sentence of

imprisonment in addition to the

fine was suspended; and

3. Probation for five years.

Throughout the pendency of the federal

criminal proceedings Mr. Kanarek "steadfastly

maintained his innocence" but ultimately took

the reduced plea for the usual SERRANO

reasons. To wit, as an attorney he wanted to

"dispose of the serious indictiemtn containing

charges of 29 other substantive counts of

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felonies" without exposing himself to possible

greater harm by continuing to trial.

The hearing Judge found that the

foregoing facts “overcame any presumption

of the respondent's unfitness to continue

the practice of law."

The Court held that Kanarek's “actions

in this instance constitute professional

misconduct and cannot be condoned. Under the

circumstances, we are of the opinion that a

censure is an appropriate measure of dis-

cipline."

In Re Dagher, __ A-eD- 2d , 370

N.Y.S. 2a 679, 18 a recent case involving

an attorney who failed to file income tax

returns for some years. Although he was

legal counsel for a local bank and was

either an officer or director of same, he

only received a censure.

John Papandon is an attorney from the

same area. He stood trial on a felony charge

before the court without a jury. Upon

conclusion of the trial, decision was reserved

for some weeks. However, shortly before

the trial decision was announced, he was

permitted to plead guilty to a misdemeanor.

He was then sentenced to a jail term of

five months. On appeal the sentence was

reduced “to the time served." (People v.

Papandon, __ AeDe 2d ee 329 N.Y.S- 000).

RLEEND THRE OLIGH

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There is no published report of any

disciplinary proceeding. Thus, no formal

disciplinary proceedings were concluded by

order of the Appellate Division for publication.

The following cases involve convic-

tions of crimes by attorneys were the only

sanctions imposed were censures:

1. In Re Siegel, 47 A.D. 2d 461,

convicted of 56 misdemeanor counts.

2. In Re Lentini, supra, conspiracy

o defraud.

3. In Re Stevenson, 39 A.D. 2d 355,

income tax.

4. In Re Entes, supra, solicitation

Of business.

5. In Re Cohen, supra, solicitation

of business.

6. In Re Ross, supra, causing federal

employee to process avoidance

of tax audit.

7. In Re Siegel, supra, conspiracy

to pay Srites.

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8. In Re Impellizzeri, supra, income tax.

9, In Re Harrison, 47 A.D. 2d 259,

income Xe

CONCLUSION

Upon the foregoing this Court should

grant the writ so that Section 90(2)

of the Judiciary Law of New York may be

declared unconstitutional.

Respectfully submitted,

MURRAY BOGATIN

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Al

APPENDIX A-OPINION OF APPELLATE DIVISION OF THE SUPREME

COURT OF THE STATE OF NEW YORK, SECOND JUDICIAL DEPARTMENT,

SUSPENDING PETITIONER

October 6, 1975

SUPREME COURT: APPELLATE DIVISION

SECOND JUDICIAL DEPARTMENT.

GULOTTA, ». J., RABIN, HOPKINS, LATHAM and CHRIST, JJ.

In the Matter Of

MURRAY BOGATIN, an attorney.

SUFFOLK COUNTY BAR ASSOCIATION,

Petitioner;

MURRAY BOGATIN,

s Respondent.

No. 3156

Disciplinary proceeding instituted by the Suffolk County Bar

Association. By order of this court dated 1974, the issues

raised were referred to Honorable DAVID L. GLICKMAN, a Justice of

the Supreme Court, to hear and report.

Enrico J. Constantino, II, Babylon

N. Y., for petitioner.

Ernest J. Peace, Mineola, N. Y.,

for respondent.

Per Curiam In this disciplinary proceeding the petitioner has

moved to confirm the report of Mr. Justice GLICKMAN to whom the pro-

ceeding had been referred for hearing and report. The respondent was

admitted to the Bar by this court on June 27, 1951.

Suffolk County, to the crime of attempted criminal contempt by refusing

to testify before a Grand Jury after having been granted immunity, as

a Class A misdemeanor, and that on November 21, 1973 he was sentenced

to pay a fine of $1,000.

The repondent's answ@ admitted the conviction, but

alleged that he was not guilty of that crime or of any professional

misconduct.

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i

A2

The reporting Justice found the respondent guilty

of the charge. After reviewing all of the testimony and exhibits,

as well as the report of Mr. Justice GLICKMAN, we are in full

agreement with the report. We find that the respondent is guilty

of the charge. Accordingly, the petitioner's motion is granted.

For his misconduct, the respondent is hereby

suspended from the practice of law for a period of six months,

effective November 1, 1975.

A3

APPENDIX B = DECISION OF COURT OF APPEALS OF THE STATE

OF NEW YORK DENYING LEAVE TO APPEAL

Ze Mo. No. 1154

In the Matter of

Murray Logatin, an attorney.

Suffolk County Bar Association,

Respondent,

Murray Pogatin,

Appellant.

Motion for leave to appeal and

for a stay denied.

| Decision Court of Appeals

| Jan 8 - 1976

ERT Ia xy eee

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Ab

APPENDIX C - ORDER OF APPELLATE DIVISION OF THE SUPREME COURT

OF THE STATE OF NEW YORK, SECOND JUDICIAL DEPARTMENT,

SUSPENDING PETITIONER

At a Term of the Appellate

Division of the Supreme

Court of the State of New

York, Second Judicial De-

partment, held in Kings

County on October 6, 1975.

x

In the Matter of

Murray Bogatin, an attorney. :

Suffolk County Bar Agsociation,

Petitioner, , Order of Suspension.

Murray Bogatin,

Respondent. ;

x

A disciplinary proceeding having been instituted in this

court upon the petition of the Suffolk County Bar Association

in respect to Murray Bogatin, an attorney and counselor-at-law,

who was admitted to practice by this court on June 27, 1951; the

petition praying that the respondent be disciplined for pro=-

fessional misconduct upon the charges therein set forth; the

proceeding having come on before this court by notice of motion,

dated March 6, 1974; and respondent having filed an answer

thereto; this court by order dated May 21, 1974, having referred

the issues raised by the petition and the answer to the Hon.

David L. Glcikman, a Justice of the Supreme Court, to hear and

to réport with this court on July 2, 1975 together with a tran-

script of the hearing and the exhibits; and the petitioner

having moved, by notice of motion dated July 11, 1975, to con=-

firm the report, and the respondent having filed an affirmation

in opposition thereto;

AS

said 21 4974; the report,

gaia wnivite, the said notice of motion of petitioner in

of said motion, the affirmation of Murray G. Bogatin in o tion

thereto; and n all the papers filed here and Znrico J. Con-

stantino, Ii, Bee having appeared of counse for the petitioner

and Srnest J. Peace, 2sq., ing appeared of counsel for the

respondent; due é@eliberation having been had thereon; and upon

| the per curiam opinion of the court herein, dated October 6, 1975,

filed herein and made a part hereof, it is unanimously

iow, upon the said wom verified March oe, 1978s the

’

ORDERED that petitioner's motion to confirm the report

of Mr. Justice Gli » filed July 2, 1975, is hereby granted,

and it is further

’ ORDERED that the report and findings therein made by the

said Justice are hereby confirmed; and the charge set forth in

the petition is hereby sustained, and it is further

ORDERED that the respondent MURRAY BOGATIN is hereby sus-

| pended from the tice of the law for a period of six months

commencing No r 1, 1975 and continuing until the further

order of this court with leave to respondent to for re-

instatement after the expiration of said od of six months,

upon furnishing satisfactory proof: (a) t during said period

he ban actually refrained from practicing law or attempt to

eractice as an attorney and counsclor-at-law; (b) that he

fully complied with this order and with the terms and provisions

and resigned attorneys, 4 copy ef such rules being annexed to

ana made a part hereof; and re

conducted himeelf; and it is further

ORDERED THAT, pursuant to statute (Jetioiony Lave 8.2") that

during the period of sus fon and until

court, the respondent Y BOGATIN be and he hereby is commanded

+o desist and refrain: (1) from practicing law in ony form, either

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

ing as an attorney or counselor-at-law before any court 3 ®

justice, board, comaission or other public authority; (5) trom

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 or counselor-at-law.

Enter:

IRVING N. SELKIN

Clerk of the Appellate Division.

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ab

APPENDIX D-ORDER OF APPELLATE DIVISION OF THE SUPREME COURT

ee ee oe ee ne ae on en DENYING

REARGUMENT LEAVE TO APPEAL at o Term of the Appellate

Division of the Supreme

Court of the State of New

York, Second Judicial De-

partment, held in Kings

County on November 5,1975-

HOw. CAMUZL KABIE

Hou. JAmZs b. HOPKINS

WO. guy J. LATHAr

HUl. WAKCUS C. CURIST

In the Matter of

,urray Jogatin, an attorne,r.

saffolk County Bar Associat.on, Order on Motion.

fetitioner,

vurray Bogatin,

Respondent.

- x

in the above entitled disciolinary proceeding, this court

by o»inion, decision and order, duted Uctober 6, 1975, having

coniirszed the revort of Hon. DAVID |. GLICKMAN, filed July 2,

197) and directed that the res ,ondent rurray Boratin be sus-

pended from the eractice of lew for & period of six months,

effective Noveuber 1, 1975; thereafter, by an order of this

court, dated uctober 29, 1975, the said order of Cetober 6,

1.7) was amended to indicate that the effective date of respon~

sert's suspeasion was extended to January 10, 1°76; and the said

res ondent havin, moved by order to show cause, dated October

2u, 1975, for reargument of the motion to confirm said report

filed July 2, 1975, and upon said reargument, to vacate the

suid order cf Uctober 6, 1975, or in the alternative, for

leave ic 29, ¢al to the Court of Appeais from said order and

to stay the said order pending determination of the appeal by

the Court oz Avpeals;

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A?

dow noon tac said order tu show cause and the affirmations

of purray Jopatin in support of said motion and the affidavit of

“teu Jawes Constantino Il in opposition thereto and upon all

tic papers Liled herein; and the said motiun having been sub-

éted by Purray Jovatin, esq., respondent pre Se and subuitted

mreico J. Consination IT, jaqe, of cuunsel fer the petitioner,

ia!

e+ Aelivecation buving been had thereon; and upon the decision

: of the court herein, neretotore filed and made a part here-

ui, Lt is

ORDSRED that the said motion is hereby denied.

anter:

IRVING N. SSLKIN

Clerk of the Appellate Division.

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