Opposition Brief — Friedman v. Grievance Committee

No. 95-690

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1995

THEODORE H. FRIEDMAN

Petitioner,

\

GRIEVANCE COMMITTEE FOR THE SOUTHERN

DISTRICT OF NEW YORK,

Respondent

On PETITION For A Writ OF CERTIORARI

To THe UNitep States Court OF APPEALS

For THE SECOND CrrRcurt

RESPONDENT'S BRIEF IN OPPOSITION

DANIEL L. BROCKET]

dy

f RE

HAL R. LIEBERMAN

CHIEF COUNSEL (COUNSE!

DEPARTMENTAL DISCIPLINARY

COMMITTEE

4] MADISON AVENU!

New York, New York 10010

(212) 685-1000

HARRIS A. SEN’

JuLIE A. Harris

SQUIRE, SANDERS & DE)

1900 Society CEN

127 PUBLIC SQUARI

CLEVELAND, OHIO 44]

216) 479-8500

QUESTIONS PRESENTED

Whether the Southern District and the Second

Circuit failed to give independent consideration to

petitioner's state court disbarment, as required by

Selling v. Radford, 243 U.S. 46 (1917), where

petitioner failed to present clear and convincing

evidence that the state court proceeding was

flawed.

Whether a federal court in a reciprocal

disciplinary proceeding, after an independent

examination of the issues, may discipline a federal

practitioner based on state court disciplinary

findings proved, in accordance with state law, bya

preponderance of the evidence.

Whether an attorney who has been found guilty of

multiple acts of serious professional misconduct

may challenge his reciprocal disbarment in federal

court by asserting that he has already been

disciplined at the federal bar for some (but not all)

of those acts, where the state tribunal entering the

original order of disbarment has explicitly stated

that any one of the attorney's many misdeeds

would constitute sufficient grounds for

disbarment.

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........-----eeeeeees i

TABLE OF CONTENTS ...ccccccccccccccsccess ii

TABLE OF AUTHORITIES .......ccccccsvceess iv

OPINIONS BEIGOW ..nccccccccdctcesesesoveses 2

JURISDICTION ........-- eee c eee e cece eee eeees 3

RULES INVOLVED «oo. cc6cccce dendncrncdvnins 4

STATEMENT OF THE CASE ..........----eeee- 4

1. Petitioner's New York Disbarment ......... 4

2. The Southern District Reciprocal Disciplinary

Proceedings ......-sccccccccccesccseses 7

3. The Second Circuit's Affirmance........... 9

4. Petitioner's Reciprocal Disbarment By This

Preyer ere 10

(ii)

REASONS FOR DENYING THE WRIT .......... 10

I. SOUTHERN DISTRICT RULE 4(g) IS

CONSISTENT WITH DECISIONS OF

THIS COURT AND WITH RULINGS OF

OTHER CIRCUITS

A. The Alleged Conflict

TL do veb cess svececeeevess 12

B. The Alleged Conflict

With Rulings Of Other Circuits ........... 15

C. The Question Is Not Important ........... 16

II. THE SECOND CIRCUIT'S APPROVAL

OF RECIPROCAL FEDERAL DISCIPLINE

BASED ON A STATE DISBARMENT

PROVED BY A “PREPONDERANCE OF

THE EVIDENCE” DOES NOT CONFLICT

WITH OTHER CIRCUITS .............. 18

fll. THE FEDERAL SUSPENSION ORDER IS

WARRANTED EVEN WITHOUT

CONSIDERATION OF THE MOWEN

Ea on 3 oa os winks dukes ob ees. 22

i fo ee wee pain wea so s9 b0% 0 6an eure 24

(iii)

TABLE OF AUTHORITIES

Page(s)

CASES

Addington v. Texas,

441 U.S. 418, (1979) .....- cece cece neee 21

Estate of Aron Krieger v. City of New York,

Index No. 6228/80 .........cccccccccecces 6

Frazier v. Heebe,

482 U.S. 641, (1986) .......-- ee eee eee eees 21

Greer's Refuse Serus., Inc. v. Browning-Ferris

Industries, '782 F.2d 918 (11th Cir. 1986) ..... 15

Herman & MacLean v. Huddleston,

459 U.S. 375, (1982) .......--- eee eens 20-21

In re Friedman,

115 S.Ct. 48 (1994) ....... eee ee eee wees 10

In re Friedman,

115 S.Ct. 81 (1994) ....... eee eee eens 7,18

In re Friedman,

115 S.Ct. 629 (1994) .......- ee eee eee eee: 10

In re Friedman,

196 A.D. 2d 280, 609 N.Y.S.2d 578

(1st Dep't 1994) ......--- sree ee eees 4, 22-23

(iv)

ee

In re Isserman,

345 U.S. 286 (1953), set aside on other

grounds, 348 U.S.1(1954) ................ 13

In re Medrano,

956 F.2d 101, (5th Cir. 1992) .............. 19

In re Palmisano,

70 F.3d 483, (7th Cir. eae 19-21

In re Phelps,

637 F.2d 171 (10th Cir. SE Sox o ws ene 15

In re Ruffalo,

390 U.S. 544, reh'g denied,

$91 U.S. 961 (1968) ......... cc ccc cocce, 12

In re Thalheim,

853 F.2d 383, (5th Cir. 1988) ........... 19, 21

Mowen v. Yangming Marine Transport Corp.,

78 Cav. SEBT (PINL) «2c cnccccccececcccccces 5

NASCO, Inc. v. Calcasieu Television and Radio,

894 F.2d 696 (5th Cir. 1990), affd sub nom

Chambers v. NASCO, Inc., 501 US. 32

4 | rr Pere nas ND en 19

Selling v. Radford,

243 U.S. 46(1917) .................. passim

Steadman v. SEC,

og | ne ne ae es 20

(v)

Theard v. United States,

$54 U.S. 278, (1957) ..... cece ee eeececees 12

STATUTES AND OTHER AUTHORITIES

28 U.S.C. § 1654 2... ccc e reece ere cvcvevevees 21

PBUSB.C. BBOT1 ..cccccvccccccsvccccccscsccns 21

98 U.S.C. § 1254(1) 2... cece ee ee eee e eee eeees 3

ABA's Model Rules of Federal

Disciplinary Enforcement .......+++++++: 14, 18

Rule 4 of the General Rules of the United States

District Court for the Southern District of

Naw Wor .ccccccccccvecvecevesscscecess 4

Rule 4(d), Southern District of New York ........- 7

Rule 4(g), Southern District of New York ..... passim

Rule 8.1, Rules of the Supreme Court ..........-- 10

(vi)

No. 95-690

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

THEODORE H. FRIEDMAN,

Petitioner,

Vv.

GRIEVANCE COMMITTEE FOR THE SOUTHERN

DISTRICT OF NEW YORK,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

Respondent Grievance Committee for the

Southern District of New York respectfully urges this

Court to deny the petition for a writ of certiorari filed in

this action by petitioner Theodore H. Friedman, a

disbarred lawyer.

OPINIONS BELOW

Petitioner Friedman seeks a writ of certiorari to

review the decision of the United States Court of Appeals

for the Second Circuit (Petitioner's Appendix A, pp. la-

7a), which affirmed an order of the United States District

Court for the Southern District of New York suspending

petitioner from the practice of law in that district "until

such time as he is reinstated to practice law in the State of

New York." (Petitioner's Appendix C, pp. 10a-1la). The

district court's order of reciprocal discipline, entered

after notice and an opportunity to be heard, followed a

final order of disbarment by the New York Appellate

Division, First Department (Petitioner's Appendix E, pp.

14a-38a), which sustained 13 separate charges of

professional misconduct found against petitioner by a

Special Referee. (Petitioner's Appendix F, pp. 45a-70a).

Petitioner sought direct review of his state

disbarment in the New York Court of Appeals, which

dismissed his appeal for want of a substantial

constitutional question. (Petitioner's Appendix D, pp.

12a-13a). Petitioner also sought review of his state

disbarment proceedings in this Court, which denied his

petition for a writ of certiorari. 115 S.Ct. 81 (1994). On

the same day it denied the petition for a writ of certiorari,

this Court entered an order suspending petitioner from

practice in this Court and requiring him to show cause

why he should not be disbarred. 115 S.Ct. 48 (1994).

Following receipt of a response from petitioner, this

Court disbarred petitioner as a result of the same charges

underlying the decision of the Second Circuit for which

review is sought here. 115 S.Ct. 629 (1994).

JURISDICTION

Respondent agrees that this Court has jurisdiction

under 28 U.S.C. § 1254(1).

RULES INVOLVED

Petitioner purports to challenge Rule 4 of the

General Rules of the United States District Court for the

Southern District of New York. (Petitioner's Appendix

G).

STATEMENT OF THE CASE

1. Petitioner's New York Disbarment

Petitioner is a New York lawyer who was disbarred

after protracted disciplinary proceedings in which he was

found by both the Special Referee hearing his case and a

unanimous five-judge panel of the New York Appellate

Division, First Department, to have engaged in

professional misconduct going "to the heart of [the]

ethical responsibility of a practicing lawyer." In re

Friedman, 196 A.D. 2d 280, 295-296, 609 N.Y.S.2d 578,

586-587 (1st Dep't 1994). The findings are multiple and

serious - ranging from suborning perjury of witnesses to

submitting false affidavits - and demonstrate "a contempt

for the legal and judicial process as well as for the

profession.” Id.

The Special Referee's report and the Appellate

Division's opinion, both of which are reprinted in

petitioner's Appendix (see Appendix 14a-70a), contain

lengthy discussions as to the underlying facts surrounding

each allegation and finding of misconduct. Because the

issue here concerns the propriety of the Second Circuit's

imposition of reciprocal federal discipline, the lengthy

record of the state disciplinary proceedings, which

includes some 4,000 pages of hearing testimony plus

hundreds of documentary exhibits, may be briefly

summarized.

Petitioner was charged in 1990 with professional

misconduct in connection with his representation of

personal injury claimants in two matters. The first of

these cases, Mowen v. Yangming Marine Transport Corp., 78

Civ. 5537 (PNL), was a wrongful death action tried in the

Southern District of New York in the early 1980's. The

dispute centered about an unreceived exhibit, prepared

by petitioner's expert on the subject of damages, which

was discovered to have been improperly placed in the

jury room during deliberations.

Petitioner was charged with four counts of

professional misconduct by a panel of attorneys

appointed to investigate the matter by the Committee on

Grievances of the Board of Judges of the Southern

District of New York. Two of the counts related to

petitioner's filing of a false affidavit blaming his co-

counsel for having placed the unreceived exhibit in the

jury room; one related to petitioner's false testimony at a

hearing conducted into the matter by the federal judge

presiding over the case; and one related to the presence

of the unauthorized exhibit in the jury room, specifically

alleging that petitioner had been the responsible party.

Pursuant to a plea bargain arrangement, petitioner

admitted one of the charges - filing a false and

misleading affidavit without personal knowledge or

factual basis - in exchange for an agreement by the

Federal Grievance Committee to drop the other charges.

Petitioner was not the subject of an evidentiary hearing

on the other three charges, although he was put on notice

that the unadmitted charges might be the basis for

further disciplinary proceedings.

The same events were then made the subject of six

counts of wrongdoing by the New York state disciplinary

authorities, which conducted an independent review of

the matter. The first charge, alleging that petitioner had

caused the exhibit to be in the jury room, was found by

the Special Referee not to have been proved by a fair

preponderance of the evidence. (Petitioner's Appendix

F, pp. 48a-49a). However, the Special Referee sustained

the remaining counts, including those charging petitioner

with knowing submission of a false affidavit and knowing

false testimony given during the hearing. (Jd. at pp. 49a-

53a). In all material respects, the Appellate Division

confirmed the report of the Special Referee. (Petitioner's

Appendix E, pp. 16a-23a, 37a-41a).

The second set of charges concerned the case of

Estate of Aron Krieger v. City of New York, Index No.

6228/80, another wrongful death matter growing out of

an elevator accident in a city-owned building. It was

alleged, and the Special Referee found, that petitioner

had improperly coached a witness to testify falsely about

various matters and to give “disinformation” to

petitioner's adversary. The Special Referee also found

that petitioner had failed to disclose to the Court and jury

that another witness had testified falsely about significant

credibility matters. (Petitioner's Appendix F, pp. 53a-

62a). :

Additional findings against petitioner were that he

failed to exercise reasonable supervision over his private

investigator; that he engaged in unethical fee splitting;

and that he had paid, or acquiesced in the payment of,

=

excessive and unreasonable compensation to fact

witnesses. (Jd.) In all, the Special Referee determined

nine of eleven Krieger charges against petitioner. (Jd.)

The Appellate Division affirmed in all respects.

(Petitioner's Appendix E, pp. 23a-37a, 39a-4 1a).

Petitioner sought to appeal his disbarment as of

right to the New York Court of Appeals. By order dated

May 3, 1994, the Court of Appeals dismissed the appeal

on the ground that it presented no substantial

constitutional question. (Petitioner's Appendix D, pp.

12a-13a). A motion for reargument in the Appellate

Division, submitted April 21, 1994, was likewise denied

except to the extent of changing two words in the Court's

opinion. With the finality of the New York disbarment

order, petitioner petitioned for a writ of certiorari from

this Court, a request which was denied on October 4,

1994. 115 S.Ct. 81 (1994).

2. The Southern District

Reciprocal Disciplinary Proceedings

Upon notification of petitioner's state disbarment,

the Southern District Grievance Committee entered a

"show cause" order on April 4, 1994, directing petitioner

to demonstrate why reciprocal federal discipline should

not be imposed pursuant to Southern District General

Rule 4(d). The order invited petitioner to make a

submission in writing by May 4, 1994. Petitioner was thus

given 30 days to submit whatever factual or legal

contentions he deemed appropriate as to why the

imposition of reciprocal disbarment was unwarranted.

On May 4, 1994, petitioner's counsel wrote to the

district court requesting a stay of all federal disciplinary

* os

proceedings until the New York Court of Appeals had

acted on petitioner's then pending appeal from the

Appellate Division's disbarment order. (Petitioner's

Appendix I, pp. 81a-84a). The letter went on, however,

to reveal two “potential” arguments in support of the

position that the New York order of disbarment should

not be adopted by the Southern District of New York.

Citing cases and elaborating in some detail, petitioner

contended, first, that the higher standard of proof for

federal court disbarment would require a de novo hearing

and, second, that any further discipline in the federal

court should not be based on the Mowen charges, which

were the subject of the earlier Southern District

disciplinary proceeding. (Jd.)

Two days later, May 6, 1994, petitioner's counsel

wrote again to the Southern District, informing it that the

New York Court of Appeals had dismissed petitioner's

direct appeal for want of a substantial constitutional

question. (Petitioner's Appendix J, pp. 83a-87a).

Notwithstanding this development, petitioner suggested

that it would be “appropriate and fair" for the Southern

District to continue to hold its proceedings in abeyance

while he prepared and filed a petition for a writ of

certiorari. It was again urged, in the same letter, that

New York's preponderance-of-the-evidence standard, on

which the state court disbarment order was based, was

inconsistent with federal constitutional due process. (Id.)

Having given petitioner ample notice and an

opportunity to be heard, having considered his

submissions, which included detailed arguments going to

the merits, and having been led to believe that the

Appellate Division's order of disbarment was final, the

Southern District Grievance Committee issued an order

dated May 26, 1994, directing that “respondent [Mr.

Friedman] be suspended from practice in the United

States Court for the Southern District of New York until

such time as he is reinstated to practice law in the State of

New York." (Petitioner's Appendix C, pp. 10a-1 1a).

3. The Second Circuit's Affirmance

On appeal, the Second Circuit affirmed the district

court's suspension order. Joining the numerous courts

(including this Court) that have rejected petitioner's

challenge to his disbarment, the Second Circuit

concluded that petitioner had been given an ample

opportunity to be heard in the district court. It noted

that petitioner had elected to respond to the show cause

order by demanding an extension of time "which the

district court was in no way obligated ‘o grant."

(Petitioner’s Appendix A, p. 6a). It also found that

petitioner had presented the “substance of reasoned

arguments" in opposition to the suggestion of

disbarment. (Jd. at p. 5a). The district court therefore

had before it "the relevant facts and detailed legal

arguments" when it made its decision. (Jd. at p. 6a).

The Second Circuit determined that petitioner had

failed to prove “by clear and convincing evidence" - as

required by Southern District Rule 4(g) - that "the New

York procedures were wanting." (Petitioner's Appendix

A, p. 6a). On this point, the court found persuasive that

this Court, following precisely the procedures employed

by the Southern District, had also disbarred petitioner

and implicitly rejected his claim that a preponderance-of-

the-evidence standard of proof deprived him of due

process. (Jd. at pp. 6a-7a).

Finally, the Second Circuit rejected petitioner's

preclusion argument, finding that "other serious and

substantial charges" before the district court warranted

suspension, even without consideration of the Mowen

charges that were the subject of the earlier disciplinary

proceeding in the Southern District. (Jd. at p. 7a).

4. Petitioner’s Reciprocal

Disbarment By This Court

On October 3, 1994, this Court, acting pursuant to

Rule 8.1 of the Rules of the Supreme Court, suspended

petitioner from practice before it and ordered him to

show cause why he should not be disbarred. Jn re

Friedman, 115 S.Ct. 48 (1994). Petitioner submitted a

response, and on December 5, 1994, this Court disbarred

him. In re Friedman, 115 S.Ct. 629 (1994). This Court

specifically cited the New York disciplinary action as the

basis for its disbarment. Id.

REASONS FOR DENYING THE WRIT

Petitioner advances three main arguments to show

that this case is certworthy. He first contends that

Southern District Rule 4(g) conflicts with governing

precedent of this Court and with rulings of other circuits

because it imposes upon the accused attorney the burden

of establishing by clear and convincing evidence that the

state court discipline is erroneous. Second, he argues

that the Second Circuit's approval of reciprocal federal

disbarment based on a "preponderance of the evidence"

standard conflicts with other circuits and should be

disapproved. And finally, he urges that the Southern

District's federal disbarment was a form of "double

-10-

jeopardy” because it allegedly punished him twice for the

same conduct arising out of the Mowen case.

The "conflicts" identified by petitioner are more

illusory than real. Even a casual reader of the authorities

on which petitioner relies can see that the Second

Circuit's decision in this case is fully consistent not only

with rulings of the other courts of appeals, but with the

authoritative pronouncements of this Court. Even if

there were a weak split - which there is not - the

questions presented for review have only rarely arisen in

the lower federal courts and are unlikely to spawn

recurring problems. The issue, thus, does not warrant

review by the United States Supreme Court.

More fundamentally, even if petitioner had raised

a certworthy issue, this case would not be an appropriate

vehicle for settling it. The imposition of a heightened

burden of proof in reciprocal discipline cases would not

be outcome determinative here. Indeed, the burden of

proof could not be raised high enough to shield

petitioner from the overwhelming evidence against him.

That evidence permitted only one conclusion - petitioner

is guilty of serious professional misconduct for which he

received appropriate punishment.

oid.

I.

SOUTHERN DISTRICT RULE 4(g) IS CONSISTENT

WITH DECISIONS OF THIS COURT AND WITH

RULINGS OF OTHER CIRCUITS

A. The Alleged Conflict

With This Court

Petitioner's feature argument is that the Second

Circuit reached a decision in conflict with governing

precedent of this Court. Specifically, petitioner alleges

that the Second Circuit's interpretation of Southern

District Rule 4(g) improperly assigned to him the burden

of showing good cause why he should not be disbarred.

According to petitioner, Rule 4(g) conflicts with a line of

this Court's decisions, beginning with Selling v. Radford,

243 U.S. 46 (1917), which purportedly place an

affirmative duty on the federal district courts to make an

independent examination of the state disciplinary record

for legal and factual errors. See also In re Ruffalo, 390 U.S.

544, 547, reh'g denied, 391 U.S. 961 (1968); Theard v.

United States, 354 U.S. 278, 281 (1957). Apparently, in

petitioner's view, the lower federal courts are requ’ :ed to

conduct such an independent examination even as to

issues not specifically called to the court's attention by the

accused attorney.

It is true that Selling and its progeny established

the independent disciplinary power of the federal

judiciary and articulated the principles governing the

imposition of reciprocal discipline in federal courts. But

nothing in these opinions even remotely suggests that this

-12-

independent disciplinary power carries with it a duty to

requisition the entire state disciplinary record and to

examine it de novo for legal and factual errors.

To the contrary, Selling itself makes clear that the

burden is squarely on the affected attorney to submit to

the federal court those portions of the state record which

he believes are in need of independent examination.

Selling v. Radford, 243 U.S. at 51-52 (the disbarred

attorney's burden is "to file the record or records of the

state court within thirty days . . . by printed brief,

considering the record intrinsically, to point out any

ground within the limitations stated which should prevent

[the federal court] from giving effect to the conclusions

established by the action of the [state court]"). Indeed,

this Court's own procedures of reciprocal discipline place

the burden upon the accused attorney to show good

cause why he should not be disbarred. Jn re Isserman, 345

U.S. 286, 288-289, 291 (1953), set aside on other grounds,

348 U.S. 1 (1954).

Any other rule would place an intolerable burden

on the federal courts. It would put them in the business

of virtually re-trying the hundreds of reciprocal discipline

cases that are processed each year. It would mean, for

example, that the Southern District in this case would

have been required to sift through the mammoth record

of petitioner's state disciplinary proceeding (some 4,000

pages of transcript, not to mention hundreds of exhibits)

to satisfy itself that the discipline imposed on petitioner

was warranted — even as to those matters not specifically

challenged by petitioner. Nothing in the Selling, Theard,

or Ruffalo decisions can be read to impose such a duty on

the federal judiciary.

The district courts in the Second Circuit, like the

district courts elsewhere, have developed a set of

procedures that properly balance the twin teachings of

Selling and Theard that although discipline imposed by a

state “brings title deeds of high respect,” it is not

conclusively binding on the federal courts. Typically,

upon receipt by the district court of a state judgment or

order demonstrating that a federal practitioner has been

disciplined by another court, the district court issues an

order to show cause with a 30-day return date.

Upon expiration of the 30-day period, the court

generally imposes the identical discipline unless the

attorney demonstrates, or the court finds, that one of the

Selling exceptions is present. The Model Rules of Federal

Disciplinary Enforcement, developed and published by the

American Bar Association, embrace the same concept,

stating that the federal court "shall" impose the "identical

discipline” unless it "clearly appears” that one of the

recognized exceptions is present.

These are the very procedures followed by the

district court here. Upon receipt by the court of

notification of petitioner's disbarment, the Southern

District issued an order to show cause directing petitioner

to make a written submission within 30 days. That order

provoked at least two letters from petitioner's counsel,

both of which were drafted to appear to address only the

issue of a stay, but which in fact covered the merits of

petitioner's objections to the state disbarment order.

Having received petitioner's submissions, the

Southern District became charged under Selling with the

responsibility of considering those submissions in making

an independent determination as to whether reciprocal

-14-

discipline (or discipline of a lesser degree of aggravation)

was warranted. This is exactly what the Court did.

Finding no merit in petitioner's constitutional and other

arguments, the Southern District independently determined

to accept the state disciplinary findings. Accordingly, on

May 26, 1994, it entered an order suspending petitioner

from practice in the Southern District until he had been

reinstated in New York. The Second Circuit affirmed on

essentially the same grounds.

Thus, contrary to petitioner's contention, both the

Southern District and the Second Circuit exercised the

duties assigned to them by Selling, Theard and Ruffalo.

They conducted an "independent intrinsic examination"

of the state disciplinary record. Although they did not

sua sponte requisition the state disciplinary record and

examine it anew for legal and factual errors, they

exercised independent judgment on those issues presented for

consideration. Nothing in this Court's opinions requires

more.

B. The Alleged Conflict

With Rulings Of Other Circuits

Petitioner also contends that the Second Circuit's

ruling conflicts with decisions of the Tenth and Eleventh

Circuits. He cites In re Phelps, 637 F.2d 171 (10th Cir.

1981), and Greer'’s Refuse Servs. Inc. v. Browning-Ferris

Industries, 782 F.2d 918 (11th Cir. 1986), both of which

stand for the settled proposition, with which we do not

disagree, that the district court in a reciprocal disciplinary

matter must give independent consideration to a state

disbarment record. But the Southern District and the

Second Circuit did give independent consideration to

petitioner's state court disbarment. Indeed, the Second

_ #

Circuit expressly cited Selling for the proposition that the

district court is required to examine the state proceeding

for consistency with the requirements of due process.

(Petitioner's Appendix A, p. 6a).

Although paraded as an inter-circuit conflict, the

dispute here is not about principles. All of the courts of

appeals, including the Second Circuit, agree that the

federal district court must make an independent

determination as to whether disbarment is warranted in

a reciprocal discipline case. There is no "conflict" on this

basic proposition. What petitioner challenges is the

application of this principle to the facts of this case. He

contends that the Southern District and Second Circuit

did not exercise independent judgment, but "ministerially

and mechanically imparted the disbarment order of the

New York state court into the separate and independent

jurisdiction of the federal district court." (Petition, p. 12).

Whatever the correctness of this assertion - and we

certainly believe it to be incorrect - it does not present an

issue worthy of this Court's certiorari jurisdiction. At

most, it shows that the district court and Second Circuit

misapplied settled law, not that the Second Circuit is "out

of step" with this Court or the other courts of appeals on

the fundamental teachings of Selling and subsequent

cases.

C. The Question Is Not Important

Having set up a false conflict, petitioner proceeds

to argue that this Court should take this case to resolve

the "conflict" among the circuits and establish a uniform

rule for the federal courts. As evidence of this "conflict,"

petitioner includes an appendix which lists the

purportedly divergent rules in the various federal district

= oA

courts on the subject of reciprocal discipline.

Petitioner's Appendix K, pp. 88a-94a).

purpo

(See

Closer examination, however, reveals that this

rted "conflict" is contrived. In Selling v. Radford,

243 U.S. 46 (1917), this Court stated that

we should recognize the condition created

by the [disciplinary] judgment of the state

court unless, from an intrinsic consideration

of the state record, one or all of the

following conditions should appear: 1. That

the state procedure from want of notice or

opportunity to be heard was wanting in due

process; 2, that there was such an infirmity

of proof as to facts found to have established

the want of fair private and professional

character as to give rise to a clear conviction

on our part that we could not consistently

with our duty accept as final the conclusion

on that subject; or 3, that some other grave

reason existed which should convince us that

to allow the natural consequences of the

judgment to have their effect would conflict

with . . . principles of right and justice[.]

243 U.S. at 50-51 (emphasis added).

As can be readily seen, the "clear and convincing"

language of Southern District Rule 4(g), and the similar

language in dozens of other local district rules, logically

derive from the "clear conviction" language of Selling,

which has stood for over three-quarters of a century as

the model to be used by the federal courts in reciprocal

discipline cases. Indeed, most district court rules are

-17-

patterned after the ABA's Model Rules of Federal

Disciplinary Enforcement, which themselves are based on

the passage of this Court's Selling opinion quoted above.

There is, therefore, no "conflict" for this Court to

resolve. The lower courts are consistent in their

approach to the question of reciprocal discipline, an

approach that derives directly from this Court's

established precedent. From a certiorari standpoint, this

case is not unusual or important in any respect. The only

thing unusual about it is that a prominent New York

lawyer has been disbarred through the application of

settled principles to a compelling record of multiple and

serious ethical violations.

Il.

THE SECOND CIRCUIT'S APPROVAL OF

RECIPROCAL FEDERAL DISCIPLINE BASED ON A

STATE DISBARMENT PROVED BY A

“PREPONDERANCE OF THE EVIDENCE"

DOES NOT CONFLICT WITH OTHER CIRCUITS

As an alternative ground for certiorari, petitioner

asserts that the Second Circuit's reliance on a disbarment

proved in the New York state proceeding by a

"preponderance of the evidence" conflicts with other

circuits and should be disapproved. In response to this

argument, we make the following points:

First, this Court, in denying certiorari in

petitioner's state disbarment proceedings, has already

declined to consider whether the "clear and convincing”

standard is mandated in attorney disbarment

proceedings. In re Friedman, 115 S.Ct. 81 (1994).

- 18 -

Second, the "conflict" identified by petitioner is

again manufactured, not real. Virtually all of the circuit

decisions cited by petitioner address the issues of the

burden of proof in original disciplinary proceedings in

federal court. See, ¢.g., In re Medrano, 956 F.2d 101, 102

(5th Cir. 1992) (original discipline proceeding); NASCO,

Inc. v. Calcasieu Television and Radio, 894 F.2d 696 (5th

Cir. 1990), aff'd sub nom Chambers v. NASCO, Inc., 501 U.S.

32 (1991) (same); In re Thalheim, 853 F.2d 383, 390 (5th

Cir. 1988) (same). Not one even addresses, let alone

rejects, the standards in reciprocal discipline cases which

originate in the state courts.

Because this Court is confronted with the

considerably narrower issue of the sufficiency of the

standard of proof in reciprocal disciplinary proceedings,

the only relevant analysis is that set forth in Selling v.

Radford, 243 U.S. 46, 50-51 (1917). Selling requires

rejection of state discipline only when there has been a

clear and convincing failure of due process or proof - or

some other conflict with "the principles of right or

justice." Id. An application of the Selling factors to the

present matter, however, reveals neither constitutional

infirmity nor conflict with "the principles of right or

justice." Id. Indeed, petitioner has enjoyed a plethora of

process throughout all stages of the proceedings, both

state and federal.

Third, petitioner is wrong to suggest that a clear

and convincing standard is mandated by federal law.

"The norm in federal law is the preponderance of the

evidence, even when the claim is fraud and the suit may

visit ruin and disgrace on the loser." In re Palmisano, 70

F.3d 483, 486 (7th Cir. 1995) (upholding the federal

court's reciprocal discipline of an attorney who was

-19-

disbarred by the Supreme Court of Illinois); see also

Herman &%’ MacLean v. Huddleston, 459 U.S. 375, 390

(1982) (upholding the use of the preponderance standard

in SEC proceedings concerning allegations of fraud);

Steadman v. SEC, 450 U.S. 91, 95 (1981) (upholding the

use of the preponderance standard where the sanctions

imposed included an order permanently barring an

individual from practicing his profession).

Fourth, petitioner requests that this Court impose

a heightened standard of proof upon all federal

disbarment proceedings without offering a shred of

empirical evidence that reliance on a preponderance of

evidence standard results in wrongful disbarment of

attorneys from the federal courts. Uniform imposition of

a clear and convincing standard on federal disbarment

proceedings would increase the amount of judicial

resources required to discipline federal practitioners in

reciprocal cases. Thus, in the absence of any

demonstrable need for a uniform, heightened standard

_ Of proof in federal disbarment proceedings, petitioner's

request for such a standard betrays an insensitivity to the

reality of scarce federal judicial resources.

Even assuming that the preponderance of evidence

standard results in more disbarments or sanctions against

attorneys, courts are not obligated to “sacrifice the

interests of litigants to reduce the risk of erroneous

imposition of costs on attorneys; to the contrary, the

interests of litigants deserve the greater protection." In

re Palmisano, 70 F.3d 483, 486-87 (7th Cir. 1995).

Contrary to petitioner's assertion, a high burden of proof

is appropriate only when the costs of error are one-sided.

Id. at 486; see also Herman & MacLean v. Huddleston, 459

U.S. 375, 390 (1982) ("[a] preponderance-of-the-evidence

- 20 -

standard allows both parties to ‘share the risk of error in

roughly equal fashion") (citing Addington v. Texas, 441

U.S. 418, 423 (1979)). Although disbarment is costly for

an attorney, "permitting an incompetent or otherwise

inappropriate person to practice law is costly for clients

and the administration of justice." In re Palmisano, 70

F.3d 483, 486 (1995).

Finally, inviting this Court to impose a heightened

standard of proof on federal reciprocal disciplinary

proceedings overlooks this Court's deference to the

broad discretion accorded to district courts for purposes

of regulating their membership. Frazier v. Heebe, 482 U.S.

641, 645 (1986) ("We begin our analysis by recognizing

that a district court has discretion to adopt local rules that

are necessary to carry out the conduct of its business"); see

also In re Thatheim, 853 F.2d 383, 386 (5th Cir. 1988) ("It

is well-settled that federal district courts are bound by

their own disciplinary rules when proceeding against

attorneys for violation of ethical standards.") (citations

omitted). Moreover, Congress has also provided in 28

U.S.C. § 2071, that district courts may prescribe rules for

the conduct of their business. Jd. The authority provided

in sec. 2071 includes the authority of a district court to

regulate the membership of its bar. Id. (citing 28 U.S.C.

§ 1654). Neither Supreme Court precedent nor federal

statutes place a premium on uniformity of attorney

regulation.

-21-

THE FEDERAL SUSPENSION ORDER IS

WARRANTED EVEN WITHOUT CONSIDERATION

OF THE MOWEN CHARGES

In his final attempt to persuade this Court that his

case is certworthy, petitioner argues that he has been

twice punished for the same conduct - in contravention

of the prohibition against double jeopardy. It is true, as

petitioner indicates, that the state disciplinary order

rested in part on the Mowen charges - filing a knowingly

false affidavit and giving false testimony at a hearing

before a Southern District Court Judge. In re Friedman,

609 N.Y.S.2d 578 (1994). It is equally true, however, that

the Krieger findings, standing alone, were sufficient to

warrant disbarment. Indeed, the Appellate Division, in

rendering its decision, stated: "Any one of these many

serious violations would be ground for removal from the

roll of attorneys." Id. at 586.

The New York Appellate Division in fact sustained

thirteen counts of misconduct against the petitioner. Of

these charges, the Krieger violations alone included

several acts of intentional dishonesty, including the

solicitation of false testimony from a fact witness; the

failure to reveal materially false testimony that petitioner

knew to be untrue; the failure to take appropriate

remedial action with regard to unethical and illegal

behavior of a private investigator; and the approval of

excessive payments of money to fact witnesses. Id. These

charges, many of which were supported by a tape-

recorded conversation of petitioner asking a witness to

-22-

lie, comprise some of the most serious findings of

misconduct.

Thus, even if this Court were to consider imposing

a uniform standard of proof for federal attorney

disciplinary proceedings, this case is inappropriate for

review of that issue. Many of petitioner's ethical

violations were supported by undisputed facts - indeed,

with respect to the Krieger charges, petitioner admitted

several of the essential allegations against him. A

heightened standard of proof would not have been

outcome determinative in this case - especially in light of

the Appellate Division's finding that "there is ample

support for the Special Referee's findings that [petitioner]

is guilty of multiple serious violations of the Code of

Professional Responsibility.” Jd. at 585 (emphasis added).

CONCLUSION

For the foregoing reasons, petitioner's petition for

a writ of certiorari should be denied.

. Respectfully submitted,

Daniel L. Brockett

(Counsel of Record)

Harris A. Senturia

Julie A. Harris

Squire Sanders & Dempsey

4900 Society Center

127 Public Square

Cleveland, Ohio 44114-1304

(216) 479-8500

-and-

Hal R. Lieberman

Chief Counsel

Departmental Disciplinary

Committee

41 Madison Avenue

New York, New York 10010

(212) 685-1000

Attorneys for Respondent

- 24.

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