# Opposition Brief — Friedman v. Grievance Committee

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 516 U.S. 1157

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0714%3A2. Public record. Not legal advice.