Opposition Brief — Falow v. Grievance Committee for the Ninth Judicial District of New York

0 FILED

No. 98-622

i

In The

Supreme Court of the United States

>

October Term, 1998

WILLIAM B. FALOW,

Petitioner,

VS.

NEW YORK STATE GRIEVANCE COMMITTEE

FOR THE NINTH JUDICIAL DISTRICT,

Respondent.

On Petition for Writ of Certiorari to the Appellate Division,

Second Judicial Department of the State of New York

RESPONDENT?’S BRIEF IN OPPOSITION

GARY L. CASELLA

Counsel of Record

GRIEVANCE COMMITTEE FOR

THE NINTH JUDICIAL DISTRICT

Attorney for Respondent

399 Knollwood Road

Suite 200

White Plains, New York 10603

MARYANN YANARELLA (PEt) SPS

Of Counsel

149842 @) Counsel! Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 * (800) 359-6859

~

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TABLE OF CONTENTS

Page

ee ee IS i a a eee es ii

yp Se ee 1]

Sg Br re |

Nien newt a ened eases l

Reasons for Denying the Writ .................... 6

Jurisdiction On Writ Of Certiorari Is Not Warranted

PN Se eh cata aah seed ea ea 4a 4 6

I. Petitioner’s Contention That The Various

Disciplinary Functions Were Combined In

Violation Of Due Process Is Without Merit. .. 7

Il. There Was No Violation Of Due Process When

Special Referee John A. Monteleone Issued His

Findings Without Deeming It Necessary To

Conduct Any Further Hearings. ............ 11

III. There Was No Violation Of Due Process When

Petitioner Was Denied Examination Of The

Contents Of A File Allegedly Maintained By The

Clerk Of The Appellate Division Nor Were

Transcripts In Other Proceedings Used Against

PS ck vinnie vik Ci wichis he A wn da ae 4s 16

IV. The Standard Of Proof In A Disciplinary

Proceeding In New York Is Appropriate To The

I a ia sca bus’ Be G84 Oo 20

i ee ae gk ee abe ae a 23

TABLE OF CITED AUTHORITIES

Page

Cases:

A to Z Assocs. v. Cooper, 161 Misc. 2d 283 (1993) ... 21

Addington v. Texas, 441 U.S. 418 (1970) ........... 21

Ausch v, St. Paul Fire Ins., 125 A.D. 2d 43 (2d Dept.

19G7) .... anh cuesning se 2 8 One 21

Barsky v. Board of Regents, 347 U.S. 442 (1954) .... 17

Belsky v. NYC Transit Authority, 48 N.Y. 2d 908 (1979) :

OPEC C Pee rn OR 1

Cruzan v. Director, Missouri Dept. of Health, 497 U.S.

261 (1990) . «0c i<.i wa pees eas eee 21

D.M.W. Contracting Co. v. Stolz, 158 F.2d 405 (1946),

cert. denied, 330 U.S. 839 (1947) ............... 14

Ex parte Secombe, 60 U.S. 9 (1857) ............... 7

Ex parte Wall, 107 U.S. 265 (1882) ............... 22

Friedman v. New York, 24 N.Y. 2d 528 (1969) ...... 8,9

Friedman v. New York, 397 U.S. 317 (1970) ........ 9

FTC v. Cement Institute, 333 U.S. 683 (1948) ....... 10

In re Feola, 37 A.D. 2d 654 (3rd Dept. 1971) ....... 21

ili

Cited Authorities

Page

In re Friedman, 196 A.D. 2d 280 (1st Dept. 1994), appeal

dismissed, 83 N.Y. 2d 888 (1994), cert. denied, 513

SEE CMTE) bi Gale's aks ¥% Oi « wasn epcaaie Ws ave 20

In re O'Neill, 184 A.D. 2d 75 (ist Dept. 1918) ...... 13

In re Ruffalo, 390 U.S. 544 (1968) ................ 11

Matter of Andrews, 184 A.D. 2d 195 (1st Dept. 1992)

SCCM PCIE GWE als dh 44 oy Who o.6.b:k 6 eass ube ca 21

Matter of Bruce, 162 A.D. 2d 79 (1990) ............ 13

Matter of Bruce, 77 N.Y. 2d 986 (1991) ............ 13

Matter of Capoccia, 59 N.Y. 2d 549 (1983) ......... 11, 20

Matter of Dondi, 63 N.Y. 2d 331 (1984) ........... 11

Matter of Falow, 231 A.D. 2d 201 (2d Dept. 1997) .. l

Matter of Falow, 90 N.Y. 2d 1007 (1997) .......... 1,11

Matter of Falow, 92 N.Y. 2d 806 (1998) ........... l

Matter of Friedman, 196 A.D. 2d 280 (1st Dept. 1994)

DUNMORE ciree ec .Ge ky. . uneaadaecvesds 21

Matter of Mahot, 222 N.Y. 8 (1917) ............... 10

Matter of Mogil, 88 N.Y. 2d 729 (1996) ............ 21

iv

Cited Authorities

Page

Matter of Shea, 271 A.D. 594 (1st Dept. 1946) ...... 12

Matter of Zuckerman, 20 N.Y. 2d 430 (1967) ....... 16

Mildner v. Gulotta, 405 F. Supp. 182 (1975), aff'd, 425

RA Pe CEE iene ac ka sWkbsasd eve eel seeiekae 13, 14

Orbit Holding Corp. v. Anthony Hotel Corp., 121 A.D.

SE SUE CR. SO a on ds FH AG AS 21

Ortiz v. Lesser, 83 A.D. 2d 663 (1981) ............. 13

People v. Thompson, 90 N.Y. 2d 615, aff’g, 222 A.D. 2d

TL 6) Ue rr oe amie A BP oo ni ye re 15

Richardson v. Perales, 402 U.S. 389 (1971) ........ 10

Santosky v. Texas, 455 U.S. 745 (1982) ............ 21

Thaler v. Casella, 960 F. Supp. 691 (1997) ......... 10

United States v. Raddatz, 447 U.S. 667 (1980) ...... 14

United States v. Salerno, 481 U.S. 739 (1987) ....... 21

United States v. Vater, et al., 259 F.2d 667 (1959) ... 14

Withrow v. Larkin, 423 U.S. 35 (1975) ............. 10

Cited Authorities

Page

Statutes:

PUMA GC UEP, Ce ise ee esa l

PT SAE 8 ei veh ec cae in dhe ees 13

POS GAO bcc ccccccccnhanitiest aii 8, 13

PT See FED vies tccs caren nt os bonitk eek 8

PE oe noon cv cae heh dL cbcel eee 10

SI er ea oss 4'n.0 0 2 66 SEs Fa veka ES 19

United States Constitution:

Re a i ae 6 EG 17

Rules:

Federal Rule of Criminal Procedure 25(a) .......... 15

United States Supreme Court Rule 10 .............. 6

United States Supreme Court Rule 10.1 ............ 7

vi

Cited Authorities

Page

Other Authorities:

re b g g . PPPUORET ree ee ei ra crs ee s

2B WTC TPES i eekcccccccccctewenbets l

reR pee PEL f = FPPreeTTTe Tres fr: 19

New York State Constitution, Article 6,§ 3 ......... 10

PRELIMINARY STATEMENT

This brief is submitted in opposition to petitioner's

application for a writ of certiorari to review an order of the

Supreme Court of the State of New York, Appellate Division,

Second Judicial Department, dated June 23, 1997 which

sustained eighteen charges of professional misconduct, in toto,

and a nineteenth charge of professional misconduct, in part,

and disbarred petitioner from the practice of law (Petitioner’s

App., la). Matter of Falow, 231 A.D. 2d 201 (2d Dept. 1997).

After a sua sponte examination, based upon arguments

presented by petitioner and opposition by respondent, the Court

of Appeals of the State of New York, by order dated October

23, 1997, dismissed petitioner’s appeal as of right, upon the

ground that no substantial constitutional question was directly

involved (Petitioner’s App., 8a). Matter of Falow, 90 N.Y. 2d

1007 (1997).

The Appellate Division, Second Judicial Department, by

order dated April 21, 1998, denied petitioner’s motion for leave

to appeal (Petitioner’s App., 10a). Similarly, on July 9, 1998,

the Court of Appeals denied petitioner’s motion for leave to

appeal (Petitioner’s App., lla). Matter of Falow, 92 N.Y. 2d

806 (1998).

STATEMENT OF JURISDICTION

Petitioner seeks to invoke the jurisdiction of this Court

under Title 28 U.S.C. § 1257(a).

STATEMENT OF THE CASE

On November 2, 1990, respondent moved before the

Appellate Division by Order to Show Cause, pursuant to

22 NYCRR § 691.4(1)(1), (Petitioner’s App., 37a), for an order

2

authorizing a disciplinary proceeding against petitioner and

suspending him from the practice of law pending the outcome

of such proceeding. Petitioner opposed this application. By

order of the Appellate Division, dated June 10, 1991,

prosecution of a disciplinary proceeding was authorized and

petitioner was suspended from the practice of law pending the

outcome of that proceeding (Petitioner’s App., 54a).

By Order to Show Cause, dated July 8, 1991, petitioner

sought reargument of the order of suspension and urged that

said suspension be vacated or modified. By order of the

Appellate Division, dated August 19, 1991, reargument was

granted and, upon reargument, that branch of the motion seeking

petitioner’s suspension from the practice of law pending the

outcome of a disciplinary proceeding was denied and he was

reinstated to the practice of law (Petitioner’s App., 56a).

On May 6, 1992, a Notice of Petition and Petition were

personally served on petitioner. Said Petition contained thirty

charges of professional misconduct. Petitions were also served

on two other attorneys involved with petitioner regarding the

transactions which served as the bases of the charges against

them. Simultaneously, respondent brought a motion for a joint

hearing with petitioner and the two other attorneys. At the

request of petitioner and the two other attorneys, Answers to

the Petitions were held in abeyance pending the decision on

the joint hearing motion. By order dated November-_9, 1992,

the motion for a joint hearing was denied.

By Order to Show Cause dated December 10, 1992,

petitioner sought an order inter alia, dismissing the Petition

against himself and one of the other attorneys. He alleged ex

parte communications by respondent with the Court and that

the Appellate Division maintained a “private file” on him. He

sought depositions of counsel to respondent and court personnel.

3

By Order to Show Cause, dated January 8, 1993, petitioner

sought an order inter alia, vacating the order of June 10, 1991

which authorized the commencement of a disciplinary

proceeding, dismissing ail charges, seeking a copy of an order

to disclose and the papers upon which it was issued and

disclosure to him of what he alleged was a “private file”

maintained by the Appellate Division.

On April 15, 1993, the Appellate Division issued orders

denying in their entirety both applications brought by petitioner

and extending his time to submit an answer to ten days after

receipt of the order denying the first application (Petitioner’s

App., 52a, 60a).

By order dated April 15, 1993, the Appellate Division

referred the issues raised by the Petition and petitioner’s

expected Answer to the Honorable George J. Balbach, a retired

Justice of the Supreme Court, Queens County, to hear and

report, together with his findings on the issues (Petitioner’s

App., 60a). On or about seen 4, 1993, petitioner served his

Answer to the Petition.

On or about May 17, 1993, petitioner made a motion for

leave to appeal to the Court of Appeals based on several of the

same issues raised in his instant appeal. By order dated July 9,

1993, this was dismissed (Petitioner’s App., 62a).

Prehearing conferences before the Honorable George J.

Balbach were held on September 9 and October 25, 1993, at

the offices of respondent. The hearing of the disciplinary

proceeding took place before the Honorable George J. Balbach

at the Richard A. Daranco Courthouse, White Plains, New York.

The hearing commenced on January 25, 1994 and concluded

on December 28, 1995.

4

During the hearing of the disciplinary proceeding,

petitioner brought another motion before the Appellate Division

seeking inter alia the issuance of subpoenae for records

maintained by the Clerk of the Court and for the appearance of

counsel to respondent and court personnel. The motion was

denied by order dated March 3, 1995.

Petitioner’s counsel then served subpoenae on the same

designated individuals causing the respondent to move before

the Special Referee to quash the subpoenae. The Special Referee

granted the motion to quash.

Proposed Findings and Replies were fully submitted to the

Honorable George J. Balbach by April 3, 1996. Due to the death

of the Honorable George J. Balbach, by order dated May 6,

1996, the Petition and Answer in this disciplinary proceeding

were referred to the Honorable John A. Monteleone (Petitioner’s

App., 64a). Petitioner, as is his practice, now falsely and

deliberately accuses the Special Referee of concealing from

the parties that his report would only be based upon his review

of the transcripts and exhibits generated by the previous

hearings. The order clearly put the parties on notice that the

Special Referee was to review the record of the proceedings,

to hold such further hearings, if any, as in his discretion were

necessary to enable him to make findings on the issues raised

by the pleadings and to report his findings on the issues.

(Emphasis added).

By Report, dated August 30, 1996, and received by the

respondent on September 19, 1996, the Honorable John A.

Monteleone issued his findings in this disciplinary proceeding.

On or about September 24, 1996, respondent brought a motion

to confirm, in part, and to disaffirm, in part, the Report of the

Special Referee.

5

Petitioner sought by Order to Show Cause, dated October

15, 1996, to vacate the Report of the Special Referee, to direct

a hearing de novo, and to stay the Committee’s pending motion

to confirm/disaffirm. On or about October 25, 1996, petitioner

brought a cross-motion to affirm/disaffirm the Report of the

Special Referee.

By order dated January 14, 1997, petitioner’s application

seeking to vacate the Report of the Special Referee, to direct a

hearing de novo, and to stay respondent’s pending motion to

confirm/disaffirm was denied. By order dated June 23, 1997,

the Appellate Division sustained Charges 2, 3, 4, 5, 7, 8, 9, 10,

12, 13, 14, 18, 19, 23, 25, 27, 28, 20 and Charge 26 solely with

respect to failing to account for clients’ and third parties’ funds.

Charges 1, 6, 11, 17, 21, 22, 24 and 30 were not sustained.

Petitioner was disbarred from the practice of law, effective

immediately (Petitioner’s App., 66a).

Thereafter, petitioner filed a notice of appeal and motions

for leave to appeal which were denied.

Petitioner claims that his defense was impaired by delay

and the length of the hearings. Any delays in investigating the

complaints of professional misconduct and in prosecuting the

disciplinary proceeding were directly attributable to petitioner.

He provided false and misleading answers to the original

complaints, gave false and misleading testimony under oath,

brought on numerous, repetitive and frivolous motions, made

several applications for interlocutory appeals, initiated federal

actions and sought numerous adjournments during the hearing

of the disciplinary proceeding.

6

REASONS FOR DENYING THE WRIT

JURISDICTION ON WRIT OF CERTIORARI IS

NOT WARRANTED IN THIS MATTER.

Rule 10 of the United States Supreme Court Rules is

entitled “Considerations Governing Review on Writ of

Certiorari” and, in relevant part, states:

1. A review of writ of certiorari is not a matter of

right, but of judicial discretion. A petition for a writ

of certiorari will be granted only when there are

special and important reasons therefor. The

following, while neither controlling nor fully

measuring the Court’s discretion, indicate the

character of reasons that will be considered:

(a) .

(b) When a state court of last resort has

decided a federal question in a way that

conflicts with the decision of another state

court of last resort or of a United States

court of appeals.

(c) When a state court or a United States

court of appeals has decided an important

question of federal law which has not

been, but should be, settled by this Court,

or has decided a federal question in a way

that conflicts with applicable decisions of

this Court.

United States Supreme Court Rule 10.

7

Although Rule 10.1 is not exhaustive, the facts of the instant

matter do not even remotely relate to the “character of reasons”

that this Court will consider for a petition for a writ of certiorari.

The issues involved in the instant matter do not reach the

constitutional dimensions to be addressed by the United States

Supreme Court. Petitioner has continually misstated the facts and

attempted to manufacture issues by couching them in terms of

“due process.” Petitioner’s real objection is that, despite his

strenuous efforts, he has been prevented from completely

obstructing the disciplinary process and is now disbarred.

The New York State Court of Appeals in its decision denying

appeal as of right, clearly apprehended that no substantial

~ constitutional question is directly involved. Both that court and

the Appellate Division have dealt with petitioner’s arguments on

numerous occasions and have correctly determined that the claims

raised by petitioner are meritless. Since none of the arguments

advanced by petitioner involves important questions of federal

law that have not been, but should be, settled by this Court, further

consideration of petitioner’s claims by this Court is not warranted.

PETITIONER’S CONTENTION THAT THE VARIOUS

DISCIPLINARY FUNCTIONS WERE COMBINED IN

VIOLATION OF DUE PROCESS IS WITHOUT MERIT.

This Court has long recognized that it rests exclusively with

the courts, who may be admitted to the practice of law as an

attorney, who may be removed from the practice of law, the

offenses for which an attorney may be removed and the means of

proceeding against an attorney. Ex parte Secombe, 60 U.S. 9

(1857).

8

The basic statutory framework for the admission and

discipline of attorneys in New York State is found in Judiciary

Law § 90 (Petitioner’s App., 14a). Judiciary Law § 90(7) gives

the Appellate Division the power to appoint any atto’ney to

conduct a preliminary investigation and to prosecute any

disciplinary proceeding. § 691.4 of the Rules of Conduct of

Attorneys (Petitioner’s App., 33a) provides for the appointment

of the grievance committees in the Second Judicial Department.

Petitioner was served with five complaints of professional

misconduct by respondent and was given the opportunity to

submit answers to each. He did so, and in each provided false

and misleading information. Thereafter, the investigations

conducted by respondent afforded petitioner several

opportunities to testify regarding his conduct in each of the

real estate transactions underlying the complaints. Petitioner

did so, and provided false and misleading testimony under oath

during his appearances. Following a thorough and lengthy

investigation, respondent determined that there was sufficient

cause to seek authorization from the Appellate Division for

disciplinary proceedings against petitioner and two other

attorneys involved in the underlying real estate transactions.

Based upon the application by respondent and opposition

by petitioner, the Appellate Division reviewed the matters

presented to it to determine whether there were sufficient

grounds for the preferral of charges. Under similar

circumstances, the New York State Court of Appeals decided

that the Court on the Judiciary was not the accuser nor did it

have an interest in the outcome of the case because it reviewed

allegations to determine whether basis existed for preferral of

charges. Far from prejudging the facts, the Court on the

Judiciary merely determined whether as a matter of law there

were facts sufficient to constitute grounds for the preferral of

charges. Friedman v. New York, 24 N.Y. 2d 528, 543-544

9

(1969). This Court dismissed an appeal in that matter for want

of a substantial federal question. Friedman v. New York, 397

U.S. 317 (1970).

The charges against petitioner were preferred by respondent

through counsel designated by the court. The charges were heard

by a Special Referee designated by the court to hear and report.

Again, in Friedman, at 544, the Court of Appeals pointed out

that because charges are preferred by counsel designated by

the court, it cannot be assumed that the court became so

intimately involved with the case as to deprive claimant of an

impartial tribunal.

Further, in Friedman, at 544, the Court of Appeals held

that,

To the extent the Court on the Judiciary sits to

supervise the conduct of the members of the

Judiciary of this State, and iike an administrative

agency which may remove an employee for cause,

where a combination of functions is traditional, so

too that combination of functions may, consonant

with due process, exist in the Court on the Judiciary.

It follows that to the extent that the Appellate Division sits to

supervise the conduct of members of the bar a combination of

functions may exist in that court consonant with due process.

If one were to accept the arguments as presented by

petitioner, almost no administrative or disciplinary system could

pass muster. Most have a combination of functions. This is not

only true of the discipline of attorneys, on both the federal and

state levels, but of the disciplinary systems involving civil

service employees, physicians, real estate brokers, certified

public accountants, notary publics and mortgage brokers, to

name just a few.

10

This Court has also rejected the argument that the

combination of investigative and adjudicative functions does

not, without more, constitute a due process violation. FTC v.

Cement Institute, 333 U.S. 683 (1948); Richardson v. Perales,

402 U.S. 389 (1971); Withrow v. Larkin, 423 U.S. 35 (1975).

Petitioner has attempted through his numerous applications

and appeals to create the “more” through various constitutional

due process claims which have repeatedly been rejected.

Petitioner’s real motivation is that he disagrees with the order

sustaining nineteen charges of professional misconduct and that

he was disbarred for that misconduct.

Petitioner’s blatant misstatement regarding the holding in

Matter of Mahot, 222 N.Y. 8 (1917), to the effect that there is

no appeal as of right in New York State, is an example of such

creativity. Petitioner should be well aware of this since he was

a plaintiff in Thaler v. Casella, 960 F. Supp. 691 (1997) wherein

the court discussed that attorneys are entitled, pursuant to

Judiciary Law § 90(8), as of right to appeal the outcome of a

disciplinary proceeding, subject to the limitations prescribed

in the New York State Constitution dealing with the jurisdiction

of the Court of Appeals. Thaler, at 699. Article 6, § 3 of the

New York State Constitution, in relevant part, gives jurisdiction

to the Court of Appeals in civil cases and proceedings, as

follows:

(1) As of right, from a judgment or order entered

upon the decision of an appellate division of

supreme court which finally determines an action

or special proceeding © herein is directly involved

the construction of the constitution of the state or

of the United States, or where one or more of the

justices of the appellate division dissents from the

decision of the court, or where the judgment or order

is one of reversal or modification.

1]

Petitioner brought an appeal as of right and it was dismissed

by the Court of Appeals as that court determined that no

substantial constitutional question was directly involved. Matter

of Falow, 90 N.Y. 2d 1007 (1997).

THERE WAS NO VIOLATION OF DUE PROCESS WHEN

SPECIAL REFEREE JOHN A. MONTELEONE ISSUED

HIS FINDINGS WITHOUT DEEMING IT NECESSARY TO

CONDUCT ANY FURTHER HEARINGS.

The practice of law in the State of New York is a privilege,

not a right. Matter of Dondi, 63 N.Y. 2d 331 ( 1984); Matter of

Capoccia, 59 N.Y. 2d 549 (1983). An attorney who is the subject

of a disciplinary proceeding which could potentially lead to

his disbarment is entitled to procedural due process, including

a fair notice of the charges and an opportunity to be heard. Jn

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

In the case at bar, petitioner had notice of the thirty charges

of professional misconduct contained in the Petition served

upon him. He was afforded a full and lengthy evidentiary

hearing before the Special Referee George J. Balbach appointed

by the Appellate Division “to hear and report, together with

his findings upon each of the issues.” Petitioner had the

opportunity to refute any evidence produced by respondent and

to cross-examine witnesses against him. He also had the

opportunity to produce witnesses and introduce documents into

evidence on his own behalf.

Following the unfortunate death of the Fonorable George

J. Balbach, by order of the Appellate Division, dated May 6,

1996, the issues raised by the Petition and Answer in this

disciplinary proceeding were referred to the Honorable John

12

A. Monteleone, as Special Referee, to review the record of the

proceedings before the late George J. Balbach, to hold such

further hearings, if any, as in his discretion are necessary to

enable him to make findings on the issues raised by the pleadings

and to report his findings on the issues. (Emphasis added.)

Petitioner made no effort to object to this order or to seek

a hearing de novo immediately following the issuance of the

order of May 6, 1996.

Almost four months later, on August 30, 1996, the

Honorable John A. Monteleone, issued his Report to the

Appellate Division as he apparently did not find it necessary,

in his discretion, to hold further hearings. What is most

significant is that, during that time, petitioner who had

continually and repetitively brought applications during the

disciplinary proceeding, made no request to the Special Referee

or to the Appellate Division for further hearings or to initiate a

hearing de novo.

Petitioner apparently acquiesced in the order until

confronted with the Report of the Special Referee which made

findings against him.

There is no requirement that a successor Referee in a

disciplinary proceeding must rehear the witnesses where the

hearing has been concluded. While the court in Matter of Shea,

271 A.D. 594, 595 (ist Dept. 1946), chose to appoint a

subsequent Special Referee to hold hearings, there is nothing

mandating such a procedure.

The procedure of appointing a Special Referee to hold such

further hearings as he deems necessary, upon the death of the

Special Referee before whom a disciplinary proceeding was

held, is not unique to petitioner’s case. This is the same

13

procedure followed in the Matter of Bruce, 162 A.D. 2d 79

(1990). Mr. Bruce raised the same due process argument before

the New York State Court of Appeals which dismissed his

appeal on the basis that no substantial constitutional question

was directly involved. Matter of Bruce, 77 N.Y. 2d 986 (1991).

Petitioner relies on Judiciary Law § 21 in support of the

proposition that the Special Referee who rendered the Report

should have heard and seen the witnesses. Petitioner’s reliance

is misplaced as Judiciary Law § 21 does not relate to the

Appellate Division’s authority in attorney disciplinary matters.

Judiciary Law § 21 is limited to “a judge other than a judge of

the court of appeals, or of the appellate division.”

Petitioner has continually misrepresented the authority and

role of a Special Referee in a disciplinary proceeding. Special

Referees have no power to determine. Mildner v. Gulotta, 405

F. Supp. 182, 191 (1975), aff'd, 425 U.S. 901 (1975); In re

O'Neill, 184 A.D. 2d 75 (1st Dept. 1918). It is the Appellate

Division, pursuant to Judiciary Law § 90, which is the final

arbiter of the facts and imposes whatever sanction is deemed

appropriate. The Appellate Division is in no way bound by the

findings of the Special Referee and must, itself, review the entire

record. Mildner, at 194-196; Belsky v. NYC Transit Authority,

48 N.Y. 2d 908 (1979); Ortiz v. Lesser, 83 A.D. 2d 663 (1981).

The Appellate Division has not abdicated its responsibility

simply because it has chosen to provide “the opportunity to be

heard” before a Special Referee. For this reason, Special

Referees in attorney disciplinary proceedings are not appointed

to hear and determine. Rather, they are appointed to hear and

report to the trier of fact, the Appellate Division.

14

The court in Mildner v. Gulotta, at 195, recognized that,

The use of masters or referees as advisory

triers-of-fact is a well-established instrument of busy

appellate courts exercising original jurisdiction. The

Supreme Court itself utilizes the practice when

disputed factual issues appear in original actions.

The federal courts have recognized that due process does

not demand under all circumstances that factual determinations

be made by the person hearing the evidence. United States v.

Vater, et al., 259 F.2d 667, 672 (1959).

This Court in United States v. Raddatz, 447 U.S. 667 (1980)

upheld a federal procedural mechanism which permitted a

district court to refer a suppression motion in a criminal matter

to a magistrate and authorized the district court to decide the

motion based on the record developed before the magistrate,

including the magistrate’s proposed findings of fact and

recommendations. The Court concluded that, even when the

motion involved contested credibility assessments and was

dispositive of the case, a de novo hearing before the district

court was not constitutionally required.

A disciplinary proceeding is not a full-blown trial but an

inquest, a gathering of facts concerning the conduct of an

attorney, a subject more likely illuminated by the evidence of

the attorney’s own acts than by what is said or not said by

someone else. Mildner v. Gulotta, at 194. In the case at hand,

even without considering the testimony of witnesses, there was

an abundance of documentary evidence that proved

respondent’s intent and his misconduct.

In D.M.W. Contracting Co. v. Stolz, 158 F.2d 405 (1946),

cert. denied, 330 U.S. 839 (1947) the District Court appointed

15

a master to take testimony upon the issues raised by the

pleadings, to make findings and to report to the court. Before a

report was made, the master died and his successor was directed

to file his report based upon the existing record. The court issued

a final judgment in which it adopted the findings of the master.

The United States Court of Appeals upheld the procedure

followed by the District Court and noted that there was no

provision requiring the court to accept the report. The parties

could file objections to the report, and request that the court

take action upon the report. After a review of the entire record,

the court could adopt the report, modify it or reject it in whole

or part. It was the trial court which made the final determination

of all issues, the report of the master was advisory only and

without effect until the court took action. The federal court

also concluded that the same result accrued whether or not the

parties consented to the reference.

In People v. Thompson, 90 N.Y. 2d 615, aff’g, 222 A.D.

2d 156 (1997), the Court of Appeals reviewed the Appellate

Division decision which held that it was proper for a judge in

the middle of a criminal trial to be substituted for the original

trial judge who had become incapacitated. The rationale

underlying this decision is that it is the duty of the jury to find

the facts and the judge is capable of carrying out the functions

assigned to him such as making evidentiary rulings and charging

the jury. The New York State Court of Appeals affirmed the

order of the Appellate Division and noted that a jury trial before

the same judge does not represent a nonwaivable common-law

right.

Even the Federal Rules of Criminal Procedure provide for

the substitution of a judge in a federal criminal trial when that

judge becomes disabled or dies. Rule 25(a) provides:

If by reason of death, sickness or other disability

the judge before whom a jury trial has commenced

16

is unable to proceed with the trial, any other judge

regularly sitting in or assigned to the court, upon

certifying familiarity with the record of the trial,

may proceed with and finish the trial.

Disciplinary proceedings are civil in nature and all of the

constitutional rights afforded a criminal defendant do not apply.

Matter of Zuckerman, 20 N.Y. 2d 430 (1967). Thus, if a judge

in a criminal trial can be substituted without violating due

process, then surely an attorney’s due process rights are not >

violated when a Special Referee is substituted during a

disciplinary proceeding where the trier of fact, the Appellate

Division, which had original jurisdiction, reviewed the entire

record. Based upon that review, nineteen charges of professional

misconduct were sustained and petitioner’s egregious conduct

caused him to be disbarred.

III.

THERE WAS NO VIOLATION OF DUE PROCESS WHEN

PETITIONER WAS DENIED EXAMINATION OF THE

CONTENTS OF A FILE ALLEGEDLY MAINTAINED BY

THE CLERK OF THE APPELLATE DIVISION NOR WERE

TRANSCRIPTS IN OTHER PROCEEDINGS USED

AGAINST PETITIONER.

Petitioner was afforded due process and had the opportunity

to cross-examine the numerous witnesses called by respondent.

Petitioner’s references to transcripts of prior testimony by

Howard M. Thaler and Lance H. Falow who were charged in

companion disciplinary proceedings, are not only disingenuous

but deliberate misrepresentations. He has failed in any of his

many attempts to appeal his disbarment to cite any place in the

record of the proceeding where this prior testimony was

admitted.

17

These two witnesses were called by respondent as adverse

witnesses and, when questioned regarding their prior testimony,

they invoked the Fifth Amendment. Petitioner’s attorney made

no attempt to cross-examine these witnesses. Special Referee

Balbach did not admit this prior testimony. In his Post-Trial

Memorandum, petitioner argues that certain charges could not

be sustained without this testimony.

Respondent, in its Proposed Findings and in its Reply to

petitioner’s Post-Trial Memorandum, addressed this issue and

argued the admissibility of this evidence and that these

witnesses had waived their Fifth Amendment privilege by

testifying regarding these matters during respondent’s

investigations. Respondent, however, demonstrated that the

only charge that could not be sustained without this prior

testimony was Charge Thirty. pee

Special Referee Monteleone specifically considered this

prior testimony only in regard to Charge Thirty and sustained

that charge. The Appellate Division did not sustain any of the

charges alleging conspiracy to defraud (Charges One, Six,

Eleven, Twenty-One) including Charge Thirty. By raising this

issue, petitioner clearly demonstrates his machinations in

attempting to create due process questions for review.

Regarding an administrative decision suspending a

physician from practice, this Court has held that such decision

was not subject to a due process attack on the ground that

immaterial and prejudicial evidence was introduced where

nothing sustained the conclusion that the administrative agency

relied upon such evidence. Barsky v. Board of Regents, 347

U.S. 442, 453-456 (1954). It is clear that in petitioner’s case,

such evidence was not admitted or relied upon.

18

Petitioner has continually raised the specter of a “private

file,” which he now designates “files maintained on him or

used by the Appellate Division.” He further claims that

there was material including confidential records, ex parte

communications and ex parte evidence which passed between

respondent and the Appellate Division and that this may have

been used against him.

Petitioner was given the opportunity to review respondent’s

file as reflected in the transcript of October 25, 1993, pp. 34-37.

Petitioner has repeatedly pointed out that it would have no

knowledge as to how files are maintained at the Appellate

Division. Petitioner’s misrepresentations regarding the nature

of these records and his assumptions that they were used against

him, is another example of his creativity in attempting to

fabricate due process issues.

Petitioner was afforded due process. He was served with a

Petition. The charges were heard before a Special Referee who

had access only to the testimony, documents and other evidence

presented by both respondent and petitioner. At the conclusion

of the hearing, a Special Referee rendered a report based solely

on the evidence presented. The entire record of the hearing was

transmitted to the Appellate Division which made an

independent assessment of the evidence, as required.

Petitioner’s real objection is that the Appellate Division found

that the record supported a substantial number of the charges

and further found that his conduct merited disbarment.

Petitioner alleges that respondent sent the file of his prior

disciplinary proceeding in 1979 to the Appellate Division while

a motion for interim suspension was pending. Respondent never

had the file of the prior disciplinary proceeding against

petitioner. a

19

The prior disciplinary proceeding was prosecuted by the

Grievance Committee for the Second and Eleventh Judicial

Districts. Respondent had only some information from that prior

proceeding obtained from the other grievance committee during

the investigation of the complaints which form the bases of the

charges which resulted in petitioner’s disbarment. Such

interchange of information between grievance committees is

specifically authorized by § 691.6(d) of the Rules of Conduct

of Attorneys, Appellate Division, Second Judicial Department.

Respondent did make an application during the

investigation of the complaints of professional misconduct for

an order to disclose pursuant to Judiciary Law § 90(10) in the

form and manner prescribed by the Appellate Division. At that

time there were no parties and no disciplinary proceeding

pending. Petitioner has pugnaciously ignored the statutory

authority for such an order. He also continues to make

assumptions regarding the nature of such application and that

it was later used against him. While disclosure pursuant to

Judiciary Law § 90(10) must be for good cause, such good cause

goes to the merits of the application to disclose and not the

merits of any potential future application or proceeding.

The evidence against petitioner is that which appears in

the record of the disciplinary proceeding at which he was a

participant and at which he was represented by counsel.

Petitioner has repetitively argued that some information may

have been considered by the Appellate Division or the Special

Referee which is outside the record of that proceeding. A review

of the record, the Report of the Special Referee and the decision

of the Appellate Division clearly demonstrate the absurdity of

petitioner’s position.

Petitioner also claims that he was not given the opportunity

to establish affirmative defenses set forth in his answer. This is

20

likewise patently absurd. The issues regarding alleged “private

files” and alleged improper ex parte communications were fully

litigated in motions and applications before the Special Referee

and the Appellate Division, in applications for interlocutory

appeals to the Court of Appeals, and in appeals following

petitioner’s disbarment. Petitioner’s attempts to call as

witnesses, the attorneys for respondent, the attorney for another

grievance committee and a clerk of the Appellate Division were

blatant attempts to inter alia further delay the disciplinary

proceeding, obtain materials with which he and his attorneys

had already been provided, and to possibly disqualify counsel

to respondent by making them witnesses on his behalf.

Petitioner simply disagrees with the rulings of the Special

Referee and the Appellate Division and has attempted to

transpose these into a denial of due process.

IV.

THE STANDARD OF PROOF IN A DISCIPLINARY

PROCEEDING IN NEW YORK IS APPROPRIATE TO

THE INTEREST AT STAKE.

Petitioner argues that as a matter of sound public policy

this Court should require clear and convincing evidence in all

disciplinary cases in order to afford due process. He urges this

in view of what he sees as rampant prejudice against the legal

profession.

The New York Court of Appeals has held that disciplinary

proceedings are to be determined upon a fair preponderance of

the evidence and reasonable inferences to be drawn therefrom.

Matter of Capoccia, 59 N.Y. 2d 549 (1983); Jn re Friedman,

196 A.D. 2d 280 (1st Dept. 1994), appeal dismissed, 83 N.Y.

2d 888 (1994), cert. denied, 513 U.S. 820 (1994).

21

Such charges have long been established based on a fair

preponderance of the credible evidence. Jn re Feola, 37 A.D.

2d 654 (3rd Dept. 1971); Matter of Andrews, 184 A.D. 2d 195

(1st Dept. 1992); Matter of Friedman, 196 A.D. 2d 280 (ist

Dept. 1994); A to Z Assocs. v. Cooper, 161 Misc. 2d 283 (1993).

Indeed, in Matter of Mogil, 88 N.Y. 2d 729 (1996), Mogil

was charged with making misleading and false statements in

connection with the Commission on Judicial Conduct’s

investigation of his misconduct. The Court of Appeals

determined that judicial misconduct was proven by a

preponderance of the evidence.

The cases on which petitioner rely involve the denial of

personal or liberty interests: civil commitment for a mental

disease, Addington v. Texas, 441 U.S. 418 (1970); termination

of parental right, Santosky v. Texas, 455 U.S. 745 (1982);

detention without bail in a criminal case, United States v.

Salerno, 481 U.S. 739 (1987); terminating life-sustaining

treatment to an incompetent person in a vegatative state, Cruzan

v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990).

Furthermore, in petitioner’s case, respondent demonstrated

that, even if it should be determined that the clear and

convincing standard were to apply, this standard requires that

the evidence makes it highly probably that what is claimed is

what actually happened. Ausch v. St. Paul Fire Ins., 125 A.D.

2d 43 (2d Dept. 1987). Orbit Holding Corp. v. Anthony Hotel

Corp., 121 A.D. 2d 311 (1st Dept. 1986), lays out what must

be proven by that standard:

that a representation of a material fact was made;

that such representation was false, and known to be

false by the party making it, or was recklessly made;

that such representation was made to deceive and

22

to induce the other party to act upon it; and that the

party to whom the representation was made relied

upon it to its injury or damage.

Respondent, in its Proposed Findings, demonstrated that

with each charge involving fraud the evidence presented clearly

and convincingly proved these elements.

Petitioner’s public policy argument is, likewise, without

merit. To afford attorneys a higher form of protection than that

afforded to others facing charges in disciplinary systems in New

York would further enhance the suspicion with which the legal

provision is viewed. This is particularly true since fostering of

the attorney/client privilege and protection of a client’s

confidences and secrets often limit the existence of

corroborating evidence. Although, in petitioner’s case there was

overwhelming evidence to sustain the charges, even apart of

the testimony of witnesses.

Petitioner erroneously argues that, since no monetary

damages were shown, no wrongdoing occurred. This is not a

necessary element of proof in an attorney disciplinary

proceeding. The issue is the integrity and fitness of an individual

to practice as a member of the bar not the redress of private

rights. Ex parte Wall, 107 U.S. 265 (1882).

The damage that was amply demonstrated by the various

charges sustained against petitioner was the abuse of the trust

and confidence reposed in respondent by clients, third parties,

courts and other members of the bar. Such misconduct goes to

the very heart of the profession and reflects negatively on

respondent’s fitness to practice law.

23

CONCLUSION

For the reasons stated herein, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

GARY L. CASELLA

Counsel of Record

GRIEVANCE COMMITTEE FOR

THE NINTH JUDICIAL DISTRICT

Attorney for Respondent

399 Knollwood Road

Suite 200

White Plains, New York 10603

(914) 949-4540

MARYANN YANARELLA

Of Counsel