Petition for Writ of Certiorari — Klein v. Grievance Committee for the Ninth Judicial District

° Bupreme Court, U.S.

FILED

: 97 1785 Mar 15 998

No.

OFFIGOE OF THE CLENK

In Tire

Supreme Court of the United States

In the Matter of SHMUEL B. KLEIN,

an attorney and counselor-at-law

SHMUEL B. KLEIN,

Petitioner,

-against-

GRIEVANCE COMMITTEE FOR THE

NINTH JUDICIAL DISTRICT,

Respondent.

On Petition for Writ of Certiorari

tc the Court of Appeals of the

State of New York

Petition for a Writ of Certiorari

Shmuel B. Klein, Petitioner, pro se

268 West Route 59

Spring Valley, NY 10977

914-425-2682

Counsel, pro se for Petitioner

Petition for a Writ of Certiorari

Questions Presented for Review

I. (a) The questions presented for review are as

follows:

(1) Whether an attorney disciplinary charge may

be based upon a court order found to violate due

process?

(ii) Whether an attorney disciplinary charge

may be based upon an order which violated the free

exercise clause of the United States Constitution?

(iii) Whether a 5 year suspension from the

practice of law is violative of equal protection?

(b) A list of all parties to the proceeding in the

court whose judgment is sought to be reviewed is as

follows:

For the Petitioner:

Shmuel B. Klein, Petitioner, pro se

268 West Route 59, Spring Valley, NY 10977

914-425-2682

For the Respondent:

Grievance Committee for the ninth judicial district of

the State of New York, by Gloria A. Bunze,

399 Knollwood Road, Suite 200, White Plains, NY

10603

(c) See attached

(d) Citations of the official and unofficial

reports of the opinions and orders entered in the case

by courts or administrative agencies:

None as of this filing.

TABLE OF CONTENTS

Table of Authorities

Statement of the basis for

jurisdiction in this Court

Constitutional provisions, treaties,

Statutes, ordinances, and regulations

involved in the case

Statement of the case setting

out the facts material to consideration

Argument amplifying the reasons relied on

for allowance of the writ

Conclusion

Page

(

19

TABLE OF AUTHORITIES

CASES

Abington School Dist. v. Schempp,

374 U.S. 203, 305 (1963)

Angel v. Bullington, 330 U.S. 183 (1947)

Brown-Forman Co. v. Kentucky,

217 U.S. 563, 573 (1910)

ix Parte Burr, 22 U.S.(9 Wheat.) 529, 530

6 L.Ed. 152 (1824)

Chicago, B. & Q. R.R. v. Chicago

166 U.S. 226 (1897)

French v. Barber Asphalt Paving Co.,

181 U.S. 324, 328 (1901)

F.S. Royster Guano Co. v. Virginia,

253 U.S. 412, 415 (1920)

Ex parte Garland, 71 U.S. 333, 378-79 (1866)

Gilbert v. Minnesota,

254 U.S. 325, 343 (1920)

Hialeah, 508 U.S. at 533-34, 542

Jordan v. Massachusetts,

225 U.S. 167, 176 (1912)

Kovacs v. Cooper, 336 U.S. 77, 95 (1949)

Marsh v. Chambers, 463 US 783, 812

Mayflower Farms v. Ten Eyck,

297 U.S. 266 (1936)

NAACP v Button, 371 US 415, 438

Palko v. Connecticut,

302 U.S. 319, 325 (1937)

Solesbee v. Balkcom,

339 U.S. 9, 16 (1950)

Sherbert v Verner,

374 US 398, 403

Smith, 494 U.S. at 878-79, 879-81, 881-82

Snyder v. Massachusetts,

29! U.S.97, 105 (1934)

In re Snyder, 472 U.S. 634 (1985);

Solesbee v. Balkcom, 339 U.S. 9, 16 (1950)

Stewart Dry Goods Co. v. Lewis,

294 U.S. 550 (1935)

In re Summers,

325 U.S. 561, 568, 65 S.Ct. 1307, 1312

89 L.Ed. 1795 (1945)

In re Summers, 325 U.S. at 566-67,

65 S.Ct. at 131] (1945)

Theard v. United States, 354 U.S. 278 (1957)

Ex parte Virginia, 100 U.S. 339, 346-47 (1880)

West v. Louisiana, 194 U.S. 258, 263 (1904)

USCCAN

139 CONG. REC. 514350-01, 514364

(daily ed. Oct. 26,1993)

S. REP. No. 111, 103rd Cong.,

Ist Sess., at 9 & n.22 (1993), reprinted in 1993

ULS.CLCLALN. 189

12

11

15

IS

(e) A concise statement of the basis for

jurisdiction in this Court, is as follows:

(i) The date of the judgment or order sought

to be reviewed is December 22, 1997.

The New York Court of Appeals which is the

court of last resort in New York State decided

important constitutional questio”:s in a way that

conflicts with the Due Process Clause, the First

Amendment and Equal Protection Clause of the

United States Constitution. The first decision deciding

that there was no right to appeal was dated September

23, 1997. The decision denying a motion for

reargument is dated December 22, 1997.

(iv) The statutory provision believed to confer

on this Court jurisdiction to review on a writ of

certiorari the judgment or order in question is Rule 10

of this Court in that the New York Court of Appeals

decided an important constitutional question in a way

that conflicts with the Due Process Clause, First

Amendment and Equal Protection Clause of the

United States Constitution and so far departed from

the acceptable and usual course of judicial proceedings

as to call for an exercise of this Court’s supervisory

powers and that the state court of last resort decided

an important federal question in a way that conflicts

with relevant decisions of this Court.

(v) Notifications required by Rule 29.4(b) are

not applicable as there is no statute in question.

f) The constitutional provisions, treaties,

statutes, ordinances, and regulations involved in the

case are as follows:

(i) First Amendment of the United States

Constitution: Congress shall make no law respecting

an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech,

or of the press: or the right of the people peaceably to

assemble, and to petition the government for a redress

of grievances.

(i1) Fifth and Fourteenth Amendments of the

United States Constitution guaranteeing due process

and Equal Protection;

(iii) The Fourteenth Amendment clause of the

United States Constitution as it binds the States and

has been held to contain implicitly not only the

standards of fairness and justice found within the Fifth

Amendment's clause but also to contain many

guarantees that are expressly set out in the Bill of

Rights. See also French v. Barber Asphalt Paving Co.,

I81 U.S. 324, 328 (1901).

(g) A concise statement of the case setting out

the facts material to consideration of the questions

presented ts as follows:

This Petition for a Writ of Certiorari seeks

review of a state-court judgment which denied a right

to appeal of the New York Court of Appeals, the

court of last resort in New York, from the Appellate

Division, Second Department, the Court of first

impression, notwithstanding the fact that the order

underlying the suspension was vacated by the United

States Court of Appeals for the Second Circuit, as it

was found to have been in violation of the Due

Process clause. See page 13 of the appendix.

The stage in the proceedings, both in the court

of first instance and in the appellate »urts, is

6

completed as the motions were denied. See page |

and 3 of the appendix.

Federal Constitutional questions sought to be

reviewed were raised initially by motions to dismiss in

the court of first impression (the New York Supreme

Court Appellate Division) and then as a motion for

Leave to Appeal in the Court of last resort in New

York State, the New York Court of Appeals. Both

motions were denied. See pages 1, 3 and 13 of the

appendix.

(h) A direct and concise argument amplifying

the reasons relied on for allowance of the writ is as

follows:

No attorney disciplinary charge can be based

upon orders that violate due process, or the First

Amendment and Equal Protection.

Your petitioner was suspended from the

practice of law based upon an order found to violate

due process. See page 13 of the appendix.

After the suspension order was cnicred, the

United States Court of Appeals for the Second Circuit

reversed an order upon which the Suspension order

was based, because that underlying order violated "due

process". It is therefore urged that this Court grant

this petition as no attorney suspension order can be

based on any order actually found to violate due

process.

‘[T]he profession of an attorney is of ‘

great importance to an individual, and the prosperity

of his whole life may depend on its exercise". Ex

Parte Burr, 22 U.S. (9 Wheat.) 529, 530, 6 L.Ed. 152

(1824).

Discipline or disbarment of an attorney

presents a case or controversy within the meaning of

Article III of the Constitution, because it has concrete

adverse effects on the attorney that can be rectified by

further judicial action. This Court has adjudicated

numerous attorney disciplinary matters. E.g., In_re

Snyder, 472 U.S. 634 (1985); Theard v. United States,

354 U.S. 278 (1957); Ex parte Garland, 71 U.S. 333,

378-79 (1866).

This Court explicitly has held that state court

bar admissions and bar disciplinary decisions present

"cases or controversies” under Article IIL. In In re

Summers, 325 U.S. 561, 568, 65 S.Ct. 1307, 1312, 89

L.Ed. 1795 (1945), the Supreme Court held that it had

jurisdiction to review a state supreme court's denial of

admission to that state bar because that denial

involved a case or controversy. The Court stated:

"Where relief is thus sought in a state court against

the action of a committee, appointed to advise the

court, and the court takes cognizance of the complaint

without requiring the appearance of the committee or

its members, we think the censideration of the petition

by the Supreme Court, the body which has authority

itself by its own act to give the relief sought, makes

the proceeding adversary in the sense of a true case or

controversy." Id. at 567-68, 65 S.Ct. at 13] 1-12. The

Court emphasized that ‘[t]he form of the proceeding is

not significant. It is the nature and effect which is

controlling.” Id at 567. 65 S.Ct. at 13] I.

Bar disciplinary actions, and disbarments are

-ssentially judicial in nature and thus present a case or

ontroversy under Article III. See Summers, 325 U.S.

t 566-67, 65 S.Ct. at 1311 (1945) ("A case arises

ithin the meaning of the Constitution, when any

uestion respecting the Constitution, treatise or laws

P the United States has assumed “such a form threat

the judicial power is capable of acting on it.”").

Although a State “is free to regulate procedure

of its courts in accordance with it own conception of

policy and fairness unless in so doing it offends some

principle of justice so rooted in the traditions and

conscience of our people as to be ranked as

fundamental.” Snyder v. Massachusetts, 291 U.S. 97,

105 (1934); West v. Louisiana, 194 U.S. 258, 263

(1904): Chicago, B. & Q. R.R. v. Chicago, 166 U.S.

226 (1897): Jordan v. Massachusetts, 225 U.S. 167, 176

(1912).

The power of a State to determine the limits of

the jurisdiction of its courts and the character of the

controversies which shall be heard in them and to

deny access to its courts is also subject to restrictions

imposed by the contract, full faith and credit, and

privileges and immunitics clauses of the Constitution.

11

Angel y. Bullington, 330 U.S. {83 (1947).

No agency of the State, or of the Officers o,

agents by whom its powers are exerted, shal] deny to

any person within its jurisdiction the equal protection

of the laws. Whoever, by virtue of public position

under a State government, deprives another of

Property, life, or liberty, without due Process of law, or

denies or takes away the equal protection of the laws,

violates the constitutional] inhibition; and as he acts in

the name and for the State, and is clothed with the

State’s power, his act is that of the State.” Ex parte

Virginia, 100 U.S. 339, 346-47 (1880).

It is now the settled doctrine of this Court that

the Due Process Clause embodies 4 system of rights

based on moral Principles so deeply imbedded in the

traditions and feelings of our people as to be

deemed fundamental to a civilized Society as conceived

by our whole history. Due Process is that

which comports with the deepest notions of what is

fair and right and just.” Solesbee v. Balkcom, 339 U.S.

9, 16 (1950) (Justice Frankfurter dissenting). Due

process is violated if a practice or rule ’offends some

principle of justice so rooted in the traditions

and conscience of our people as to be ranked as

fundamental.” Snyder v. Massachusetts, 291 U.S.

97, 105 (1934).

The suspension of my license to practice law,

based upon an order found to have violated the "due

process clause" should be reviewed by this Court.

Your petitioner was also suspended based upon an

order which sanctioned him for insisting on his First

Amendment Right to practice his religion by bringing

13

a motion to arbitrate before a Rabbinical] Court.

In Sherbert v Verner (374 US 398, 403) this

Court stated that an lacidental burden on the right to

free exercise of religion may be justified by a

“compelling state interest in the regulation of a subject

within the State’s constitutional power to regulate’ "

(citing NAACP y Button, 37] US 415, 438). The

compelling state interest js dispute resolution. Seeking

arbitration before a Rabbinical Court cann>t be a

basis to Suspend an attorney, especially when the

matter was submitted to arbitration before the

Rabbinical Court.

In Marsh v. Chambers, 463 US 783, 812 "even

when the government is not compelled to do so, by

the free exercise clause, it nay to some extent, act to

facilitate the Opportunity of individuals to practice

their religion.” | should not be suspended for insisting

upon my First Amendment rights to arbitrate before a

Rabbinical Court.

Religion is not only among fundamental rights,

bat is a “preferred” right of the "highest order." See

139 CONG. REC. 514350-01, 514364 (daily ed. Oct.

26,1993) (statement of Sen. Hatch) ("religious liberty

... is the most fundamental liberty any human being

can claim ... Even the most scorned in our society,

prison inmates, have a legitimate interest in religious

liberty.") ; S. REP. No. 111, 103rd Cong. , Ist Sess., at

9 & n.22 (1993), reprinted in 1993 U.S.C.C.A.N. 1892

(citing cases) see also Gilbert v. Minnesota, 254 U.S.

325, 343 (1920) (Brandeis, J., dissenting) (Fourteenth

Amendment guarantees more than the liberty to

acquire and enjoy property); Palko v. Connecticut, 302

U.S. 319, 325 (1937) (per Cardozo, J.) (Bill of Rights

made applicable to the states to preserve principles of

15

justice "so rooted in the traditions and conscience of

Our people as to be ranked as fundamental"); Kovacs

Vv. Cooper, 336 U.S. 17, 9S (1949) (Frankfurter, J.,

concurring) (fundamental liberties are those “of the

individual which history has attested as indispensable

conditions of an open as against a closed society’)

Abington School Dist. v. Schempp, 374 U.S. 203, 305

(1963) (Goldberg, J., concurring) ("The First

Amendment's guarantees, as applied to the States

through the Fourteenth Amendment are to be read

logether . . . to promote and assure the fullest possible

scope of religious liberty and tolerance for all and to

nurture the conditions which secure the best hope of

attainnient of that end.").

The most "exacting scrutiny" of government

actions in four instances - when government

regulation: (1) is not neutral, Le. tarpets religious

‘ed See ee?

conduct or believers either facially or as applied in |

particular instances, Hialeah, 508 U.S. at 533-34,

Smith, 494 U.S. at 878.79; (2) is not generally

, ay =.

applicable, te., selectively burdens religious exercise,

* =

Hialeah, 508 U.S. at 542; Smith, 494 U.S. at 879-81;

(3) creates system of individualized government

assessment of the reasons for the relevant conduct,

following individualized exemptions from a general

requirement, Hialeah, 508 U.S. 537; Smith, 494 U.S. at

884; or (4) burdens religious freedom in conjunction

with other constitutional rights, Le., a

hybrid situation, Smith, 494 U.S. at 881-82.

In each of these four instances, the government

action “is invalid unless it is justified by a compelling

interest is narrowly tailored to advance that interest."

Hialeah, 508 U.S. at 533 (citing Smith, 494 U.S. at

878-79).

17

Basing a Suspensii upon an order which

violated your petitioner's First Amendment free

exercise of his religion cannot be a basis to Suspend

his license to Practice Law

Purther, the devree of the SUSPENSION Was a violation

of the Equal Protection Clause of the Constitution and

requires this Courts review.

The classification must be reasonable, not

arbitrary, and must rest upon some ground of

difference having a fair-and substantial relation to the

Object of the legislation, so that all persons similarly

circumstanced shall be treated alike.” FS. Royster

Guano Co. v. Virginia, 253 U.S. 412. 415 (1920). See

also Brown-Forman Co. v. Kentucky, 217 U.S. 563.

73 (1910). Use of the latter standard did in fact

result in some invalidations. E.g., FS. Royster Guano

Co. v. Virginia, 253 U.S. 412 (1920); Stewart Dry

—,

Goods Co. v. Lewis, 294 U.S. 550 (1935); Mayflower

Farms v. Ten Eyck, 297 U.S. 266 (1936).

No suspension of the length imposed upon your

petitioner can be found in any reporter for the

conduct alleged. The arbitrary length of the

suspension has no fair of substantial relation to the

object of discipline so that all persons are treated

alike.

CONCLUSION

WHEREFORE, it is respectfully submitted that

the within Petition be in all respects granted.

Dated: March 17, 1998 Respectfully,

Spring Valley, NY F

GO»

Shmuel Klein, pro se

268 Route 59 West

Spring Valley, NY 10950

(914) 425-2682

CERTIFICATE OF SERVICE

STATE OF NEW YORK )

COUNTY OF ROCKLAND)

I, Asmaa Sugqi, affirms under the penalties of

perjury pursuant that I am not a party to this action

and that I am over the age of 18 years old. I have an

Office at 268 Route 59, Spring Valley, New York

10977, and I served the within Petition for Writ of

Certiorari and Appendix on March 18, 1998, by

depositing a three copies thereof in a post-paid

wrapper, placing it in an official depository under the

exclusive care and custody of the United States Postal

Service within the State of New York, overnight mail,

addressed to:

Gloria A. Bunze

399 Knollwood Road

Suite 200

White Plains, NY 10603

"2 {)

jf

eo,

Asmhaa Suqi , 3

Affirmed and subscribed to before me 3/18/98

——. —PrsaslMQ

Notary

> SHIMUEL E. KLEIN ~

Notery Public, State of New York

0 244941210

Quolified in RekudCc unty

Commission Fxehve ? £25/19%

APPENDIX

TABLE OF CONTENTS

dated September 23, 1997

Order from the United MU gic a Se 5

Court of Appeals, Second Circuit

argued September 24, 1997

Order from the Supreme Court

of the State of New York,

Appellate Division: Second

Judicial Department, dated

June 30, 1997

eS RO Se See Se eS

State of New York

Court of Appeals

At a session of the Court, held at

Court of Appeals Hall in the City

of Albany on the twenty second-

second day of December 1997

Present, HON. JUDITH S. KAYE, Chief Judge,

presiding.

In the Matter of Shmuel B. Klein, Mo. No. 1395

an attorney and counselor-at-law.

Grievance Committee for the

Ninth Judicial District,

Respondent,

Shmuel B. Klein,

Appellant.

A motion for renewal and/or reargument to the

Court of Appeals in the above case having been

heretofore made upon the part of the appellant herein

and papers having been submitted thereon and due

deliberation thereupon had, it is

ORDERED, that the said motion be and the

same hereby is denied.

ABA OTE

Stuart M. Cohen

Clerk of the Court

State of New York

Court of Appeals

At a session of the Court, held at Court

of Appeals Hall in the City of Albany on

the twenty-third day of September 1997

Present, HON. JUDITH S. KAYE, Chief Judge,

presiding.

2-25. Mo. No. 1395

In the Matter of Shmuel B. Klein, |

an attorney and counselor-at-law. 2

Grievance Committee for the

Ninth Judicial District, |

Respondent,

Shmuel B. Klein,

Appellant. .

The appellant having filed notice of appeal and

a motion for leave to appeal and for a stay to the

Court of Appeals in the above cause, papers having

been submitted thereon and due deliberation having

been thereupon had, it is

ORDERED, on the Court’s own motion, that

the appeal be and the same hereby is dismissed,

3

without costs, upon the ground that no substantial

constitutional question is directly involved: and it is

ORDERED, that the said motion for leave to

appeal be and the same hereby is denied; and it is

ORDERED, that the Said motion for a Stay be

and the same hereby is dismissed as academic.

Stuart M. Cohen

Clerk of the Court

CORRECTED PER CURIAM OPINION

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 269 August Term, 1997

(Argued: September 24, 1997) (Decided: , 1997)

Docket No. 96-5133

IN RE: MOSES STEIN,

Plaintiff,

SHMUEL KLEIN, |

Plaintiff-Appellant,

V.

ULSTER SAVINGS BANK,

Defendant-Appellee.

ee ee Re ee eR ee RR RRR See ee See

BEFORE: ALTIMARI, PARKER AND KEITH,[*]

Circuit Judges

Appeal from a judgment entered in the United States

District Court for the Southern District of New York

(Charles L. Brieant, J.) on October 29, 1996, affirming

sanctions imposed on appellant by the bankruptcy

court (Stuart Bernstein, U.S. Bankruptcy Judge) on

June 8, 1994. We hold that it was error for the

bankruptcy court to impose sanction without providing

appellant with notice or an opportunity to be heard.

Vacated and remanded.

Shmuel Klein, Spring Valley, NY,

for Plaintiff-Appellant.

(Anthony Carlini, Law Office of Howard C. St. John,

Kingston, NY, of counsel), for Defendant-Appellee.

Per Curiam:

I. BACKGROUND

On March 10, 1994, Ulster moved to have the

automatic stay lifted on the grounds that Stein had not

made any Post-petition payments on his mortgage. In

response to this motion, Klein produced

copies of three uncancelled checks as proof that Stein

had made the Post-petition mortgage payments,

Nonetheless, on March 15, 1994, Judge Bernstein

lifted the Stay, holding that the bank

had made a prima facie demonstration that post-

petition payments had not been made.

The district court found that on May 17, 1994, Stein

and Klein failed to appear at a section 34] meeting

with Bankruptcy Trustee Jeffrey Sapir and United

6

States Bankruptcy Judge Jeffrey Gallet.

Klein contends that they failed to appear because

Stein was ill and that they informed Trustee Sapir that

they would be unable to attend the meeting. Sapir

moved to have Stein’s Chapter 13 petition dismissed

for failure to prosecute and for failure to deposit funds

with the trustee.[1]

On March 31, 1994, Stein moved before Judge

Bernstein to reargue the lifting of the automatic stay.

Judge Bernstein granted this motion and heard

reargument on April 6, 1994. At no time did Klein

inform Judge Bernstein that a motion to dismiss the

petition was pending before Judge Gallet.

At reargument, Klein again produced copies of three

uncancelled checks as proof that the post-petition

mortgage payments had been made. This time, Ulster

conceded that it had received the checks, but

contended that it was not aware of this fact when it

made its original motion to lift the stay. Ulster

explained that when it received the checks, they were

contained in a sealed, self- addressed, stamped

envelope that was mixed among a pile of other

documents that Klein sent to Ulster. Judge Bernstein

stated that he would reimpose the automatic stay if

Stein paid Ulster all

post-petition payments due in full within one week.

The court also sanctioned Klein in the amount of $500

to compensate Ulster for its costs and attorney’s fees.

On April 7, 1996, Judge Gallet granted the motion to

dismiss. Klein did not appear in response to this

motion. He contends that his absence was due to

excessive traffic en route to the court.

On April 26, 1994, Klein filed a second Chapter 13

petition on behalf of Stein. This petition falsely

represented that Stein had

not filed a previous bankruptcy petition within six

years.

Ulster moved for relief from the automatic Stay or

alternatively for dismissal of the petition. On June 8,

1994, Judge Bernstein heard argument on this motion

and dismissed the second petition. Judge

Bernstein found that the second petition--filed just

eighteen days after the first petition was dismissed--

violated 11 U.S.C. § 109(g). 11 U.S.C. § 109(g)

provides:

Notwithstanding any other provision of this section, no

individual or family farmer may be a debtor under this

title who has been a debtor in a case pending under

this title at any time in the preceding 180 days if--(1)

the case was dismissed by the court for willful failure

of the debtor to abide by orders of the court, or to

appear before the court in proper prosecution of the

case.

filed the second petition with "personal knowledge that

the debtor was ineligible to file under Section

109(g)(1) and that the new petition was interposed to

-" Judge Bernstein characterized

Klein’s behavior as

"{making] a mockery of the prior proceedings and

orders which this court has issued." Judge Bernstein

then charged Klein with various acts of dishonesty and

malfeasance in connection with

Stein’s bankruptcy petitions, including: (1) placing the

mortgage payments in a sealed, self-addressed,

stamped envelope and burying the envelope within a

pile of papers; (2) lying about

whether the post-petition mortgage payments had

been made; (3) failing to appear at the section 341

meeting; (4) failing to inform Judge Bernstein, prior to

reargument of Ulster’s motion to lift the

automatic stay, that the trustee’s motion to dismiss the

petition was pending before Judge Gallet; (5) failing to

appear in response to the trustee’s motion to dismiss

before Judge Gallet; and (5) filing a

second petition in violation of § 109(g)(1). Based on

this conduct, and acting pursuant to Rule 9011 of the

Federal Rules of Bankruptcy Procedure, Judge

Bernstein sanctioned Klein $2,500 for abuse of

process.[2]

Klein appealed the imposition of sanctions to the

district court. The district court agreed with Judge

Bernstein that Klein’s filing of the second bankruptcy

petition constituted an abuse of the bankruptcy

process. The court further concluded that Judge

Bernstein did not abuse his discretion in imposing

sanctions. Finally, the court held that it was not error

for the bankruptcy court to impose sanctions without a

hearing. It explained that while Congress expressly

amended Fed.R.Civ.P. 11 in 1993 to require notice

and an opportunity to be heard before the imposition

of sanctions, it did not amend Rule 9011 to include

9

such a requirement.

II. DISCUSSION

be heard before imposing any kind of sanctions" 76

F.3d at 70. In Ames Dep't Stores, Inc., the district

CaS€ even approached a notice and

Opportunity to be heard before the district court

ordered a denial of Skadden’s requested fee." Id.

Although the district court in Ames Dep't Stores, Inc.

did not expressly state that it was sanctioning Skadden,

Arps pursuant to Rule 901 1,[3] we clearly stated in

that opinion that notice and an

Opportunity to respond is necessary prior to the

imposition of "any kind of sanctions." Id. (emphasis

added); see Rounseville y. Zahl, 13 F.3d 625, 632 (2d

Cir. 1994) (Rule 11); Schoenberg vy.

Shapolsky Publishers, Inc., 971 F.2d 926, 936 (2d Cir.

Opportunity to respond--must be afforded before any

Sanction is imposed.").

10

We now expressly extend this holding to cover

sanctions imposed pursuant to Rule 9011. Therefore,

because Klein had no notice or opportunity to be

heard before the bankruptcy court imposed sanctions,

we direct the district court to remand this matter to

the bankruptcy court to give Klein an opportunity to

respond to Judge Bernstein’s charges. A full

evidentiary hearing, however, is

not required. See International Ore & Fertilizer Corp.

v. SGS Control Servs., Inc., 38 F.3d 1279 (2d Cir.

1994) (finding no due process violation where attorney

threatened with Rule 11 sanctions

received no hearing but had notice and opportunity to

respond); see also Big Rapids Mall Assocs. v. Mutual

Trust Life Ins. Co., 98 F.3d 926, 929 (6th Cir. 1996)

(upholding imposition of Rule 9011

sanctions where attorney had notice and an

opportunity to respond by brief and oral argument);

Childs v. State Farm Mut. Auto. Ins. Co., 29 F.3d

1018, 1027 (Sth Cir. 1994) ("Simply giving the

individual accused of a Rule 11 violation a chance to

respond through the submission of a brief is usually all

that due process requires."); cf. Jensen v. hederal Land

Bank, 882 F.2d 340, 342 (8th

Cir. 1989) (remanding case ‘or a hearing where

attorney was not given nc... 2 and an opportunity to

respond before Rule 9011 sanctions were imposed).

Because we are vacating the sanctions order, we need

not reach Klein’s argument that the bankruptcy court’s

imposition of a $2,500 sanction constituted an abuse of

discretion.

Vacated and remanded. {

[*] The | lonorable Damon J. Keith of the United

States Court of Appeals for the Sixth Circuit, Sitting by

designation,

[1] The portion of this finding regarding Bankruptcy

Judge Gallet’s presence at this section 34] meeting is

[2] Judge Bernstein also imposed other fines to cover

Ulster’s expenses in responding to the second

bankruptcy petition. These fines are not at issue in this

appeal,

[3] The case was remanded in part to allow the

bankruptcy court to specify the source of its authority

to impose sanctions. See Ames Dep't Stores, Inc., 76

12

7_-

SUPREME COURT OF THE STATE OF NEW

YORK

APPELLATE DIVISION: SECOND JUDICIAL

DEPARTMENT

8272Z

S/hu

AD2d

GUY JAMES MANGANO, P.J.

LAWRENCE J. BRACKEN

ALBERT M. ROSENBLATT

SONDRA MILLER

WILLIAM C. THOMPSON, JJ.

95-09901

In the Matter of Shmuel B. Klein,

an attorney and counselor-at-law,

Grievance Committee for the Ninth

Judicial District, petitioner,

Shmuel B. Klein, respondent.

DISCIPLINARY proceeding instituted by the

Grievance Committee for the Ninth Judicial District.

The respondent was admitted to the practice of law by

this court on June 29, 1988, under the name Shmue!]

Berel Klein. By order of this court dated January 3,

13

E'S

: 1996, the issues raised in the petition and in the

answer were referred to the Honorable Lawrence

Martin, as Special Referee. to hear and report.

Gary L. Casella, White Plains, N.Y. (Gloria A.

Bunze of counsel), for petitioner.

Shmuel Klein. Spring Valley, N.Y., respondent

pro se

PER CURIAM. The petition contains three

charges of professional misconduct against the

respondent. After a hearing, the Special Referee

Sustained all three charges. The Grievance Committee

How MOves to confirm, and the respondent CrOSss

Moves to disaffirm, the report of the Special Referee.

Charge One alleged that the respondent

engaged in conduct involving dishonesty, fraud, deceit,

or misrepresentation, in violation of Code of

Professional Responsibility DR 1-102(A)(4) (22

14

NYCRR 1200.3{a][4]), conduct that adversely reflects

on his fitness to practice law, in violation of Code of

Professional Responsibility DR 1-102(A)(8) (22

NYCRR 1200.3{a}[8]), and conduct that is prejudicial

to the administration of justice, in violation of Code of

Professional Responsibility DR 1-102(A)(8) (22

NYCRR 1200.3{a][8]), in connection with his handling

of a bankruptcy matter in the United States

Bankruptcy Court entitled In Re Moses Stein, Debtor.

The facts underlying Charge One are as follows:

i. In an “Extract of Bench Ruling

Dismissing Chapter 13 Case and Imposing

Sanctions on the Debtor's Attorney"

(hereinafter bench ruling ) dated June 9, 1994,

the Honorable Stuart M. Bernstein, United

States Bankruptcy Judge, found that the

respondent, the debtor’s attorney, engaged in

improper conduct.

2. In the bench ruling, the court found that

the respondent attempted to present an ex

parte order to show cause to the court on or

about March 28, 1994, which the court declined

tO entertain. The object of the order to show

Cause was to reimpose an automatic stay on the

foreclosure sale of the debtor’s home.

3. The court further found that, when the

respondent again Presented the order to show

Cause in the presence of the bank’s attorney on

or about March 30, 1994, he initially contended

that a foreclosure sale of the debtor’s home was

imminent, which was not the case since no sale

had been scheduled.

4. The respondent then represented that

the debtor’s confirmation hearing was

16

scheduled for April 7, 1994, and that it was

necessary to resOlve the stay issue before then.

Based on the respondent’s representations, the

court scheduled the hearing on the debtor’s

motion for April 6, 1994.

5. ‘The court found that the respondent

gave false testimony at the hearing on April 6,

1994, and that the respondent lied to cover his |

office’s mistake in sending three checks for past

due mortgage payments to the bank’s attorneys

rather than to the bank.

6. At the hearing on April 6, 1994, the

court sanctioned the respondent for the

aforementioned conduct, ordering him to pay

$500 to the bank. When the bench ruling was

reduced to writing, some nine weeks later, the

17

respondent still had not Paid the sanction.

7. The court further found that, throughout

the many Proceedings in the Stein bankruptcy

matter, the respondent failed to disclose that

the Chapter 13 trustee had moved before

another United States Bankruptcy Court Judge,

Judge Jeffrey Gallet, to dismiss or convert the

matter pursuant to 11 USC $1307(c)(1), (e)(4)

due the debtor’s failure to appear at a "section

341" hearing and to deposit necessary funds

with the trustee.

&. In the bench ruling the court noted that

the trustee’s motion was returnable on April 7,

1994, the date the respondent represented to

the court as the date of debtor’s confirmation

hearing. On that date, however, neither the

debtor nor the respondent appeared in

18

EEE

response to the trustee’s motion or at the

confirmation hearing. By an order dated April

7, 1994, Judge Gallet granted the trustee’s

motion and dismissed the case.

9. The court also noted that the foreclosure

sale was rescheduled for the end of April 1994.

On April 26, 1994, on the heels of the previous

dismissal and on the eve of the sale, the

agen: on behalf of the debtor, filed a

second bankruptcy petition.

10. The court found that the second

bankruptcy petition constituted an "abusive"

Chapter 13 filing that was not done in good

faith, but to frustrate the legitimate rights of

the bank. The court further found that the

second petition flouted a prior order of the

court granting conditional relief from the stay,

19

caused the bank unnecessary expenses, and

abused the bankruptcy process.

11. = The court also found the respondent

falsely certified, in response to a question on

the second bankruptcy petition, that the debtor

had not filed a bankruptcy petition during the

the second bankruptcy Petition since he had

filed a petition on the debtor’s behalf in

petition was interposed to delay the foreclosure.

12. Based on the aforementioned violations,

the court directed the respondent to Pay, within

30 days, Sanctions in the sum of $3,500; $2,500

20

to the Clerk of the United States Bankruptcy

Court and $1,000 to the bank as compensation

for its expenses, including attorney’s fees.

Charge Two alleged that the respondent

engaged in conduct that adversely reflects on his

fitness to practice law, in violation of Code of

Professional Responsibility DR 1-102(A)(8) (22

NYCRR 1200.3[a][8]), and conduct that is prejudicial

to the administration of justice, in violation of Code of |

Professional Responsibility DR 1-102(A)(5) (22

NYCRR 1200.3{a][5]), in connection with his handling

of a legal malpractice case entitled Eliezer Goldstock

and American Jewish Society for Distinguished Children,

Inc. v. Shmuel B. Klein. The facts underlying Charge

Two are as follows:

i In a decision and order of the Supreme

Court, Rockland County, dated October 6,

1994, the Honorable Anthony A. Scarpino, Jr.,

inter alia, dismissed 10 of the respondent’s

affirmative defenses in the above-entitled

action, finding that either they were not

defenses to the alleged claim or they were

wholly without merit. The court noted that,

despite the plaintiff's challenge, the respondent

failed to making any Showing of merit to the

dismissed defenses.

2. In the aforementioned decision and

order, the court warmed the respondent and

Opposing counsel "that the abusive nature of the

pleadings, correspondence, and conduct in this

action must Stop here. The hyperbole,

harassment, and histrionics will no longer be

tolerated. Failure to heed this warning will

result in sanctions and referral by the Court to

22

the Grievance Committee." The court also

stated that no further motions could be made

without prior court approval.

3. Upon information and belief, Justice

Scarpino was reassigned on or about January 1,

1995, and the matter was transferred to the

Honorable Kenneth W. Rudolph.

4. On or about March 16, 1995, Justice

Rudolph sent the respondent and opposing

counsel a letter in which he stated that the

"stern warning" issued by Justice Scarpino, Jr.,

in his decision and order dated October 6,

1994, had "been ignored and had gone

unheeded".

» Justice Rudolph’s letter also stated that,

despite Justice Scarpino’s order that no further

motions be made without prior court approval,

23

counsel continued the behavior described by

Justice Scarpino as if the prior order never

existed.

6. Justice Rudolph’s letter advised counsel]

that ‘ hearing would be held on March ai,

1995 to determine whether sanctions would be

imposed against them for dilatory and

oppressive conduct in violation of the prior

orders of the court.

fg In a decision and order dated March 29,

1995, Justice Rudolph, inter alia, found that,

"[i}n complete contravention of the prior order

of this Court and in violation of the preliminary

conference order to serve his answer to the

amended complaint the [respondent] has made

an Omnibus Motion to compel arbitration, to

Tenew previous motions to strike, to dismiss

24

plaintiffs’ complaint to the dismiss the action as

to the individual plaintiff, Eliezer M.

Goldstock".

8. In the March 29, 1995, order the court

also found that the omnibus motion included

the respondent’s third motion to compel

arbitration, the two prior applications having

been denied by the same court. Morevover, the

respondent admitted to the court that he had

no legal basis for making such application and

that his request for arbitration was based on

religious laws.

9. The court further found that, when

opposing counsel agreed to a discontinuance of

the action of behalf of the individual plaintiff

pursuant to the respondent's motion (see

subparagraph 7 above), the respondent said, "I

changed my mind, I want him in the action,"

and the respondent did not want that portion of

the relief Tequested. The court Stated, "[T]his

contemptuous response clearly demonstrates

[the respondent’s] intent to harass his adversary

and grind this litigation to a halt in a sea of

frivolous motions."

10. The court further stated that the

respondent’s attempt to revisit the previous

decisions of the court was equally Cgregious.

Despite the court’s admonitions, the respondent

displayed what appeared to be a complete lack

of understanding of the serious Nature of the

Proceedings by submitting a further affirmation

‘nN support of his omnibus motion on March 24,

1995. three days after a hearing ON sanctions

was completed by the court.

26

11. Based on the aforesaid conduct, the

court imposed sanctions of $1,000 against the

respondent, ordering him to pay that sum to

the Lawyers’ Fund of Client Protection of the

State of New York within 20 days and to file

proof of payment with the Clerk of the

Supreme Court, Rockland County, within 10

days thereafter.

12. On or about May 4, 1995, Justice

Rudolph sent the respondent a letter in which

he stated that opposing counsel had been given

permission to file a motion for summary

judgment in response to which the respondent

interposed affirmative defenses previously

dismissed by a prior order of the court. The |

letter further stated that the respondent’s |

correspondence indicated the respondent’s

27

awareness that he Was not to revisit the

Previously dismissed defenses.

7 Charge Three alleged that respondent engaged

in conduct involving dishonesty, fraud, deceit, or

misrepresentation, in violation of Code of Professional

Responsibility DR 1-102(A)(4) (22 NYCRR

misleading Statement in his answer to a complaint of

Professional misconduct. The facts underlying Charge

Three are as follows:

l. On or about March 14. 1995, the

Grievance Committee received a complaint of

misrepresentations regarding his malpractice

insurance or in the course of defending the

aforementioned legal malpractice.

2. In his written answer to the complaint,

dated March 21, 1995, the respondent stated, "I

have never had a malpractice claim and try very

hard not [sic] to avoid them."

3. The respondent, in fact, has had at lease

one additional malpractice claim filed against

him as a third-party defendant in an action

entitled Thanlenberg v. Rosenfeld and

Charles/Charles v. Klein. The third-part

summons and verified complaint were refiled

on or about April 27, 1994, in the Supreme

Court, Rockland County.

At the rehearing conference the respondent

made the following admissions: With regard to

29

Thus, the petitioney’s

Motion to confirm the Special Referee’s report in

Sranted, and the fespondent’s croggs motion to

disaffirm the Special Referee’s report is denied

mitigating factors proffered by the respondent with

regard to Charge Two, including the nature of the

relationship between him and Mr. Goldstock and the

fact the underlying actions was ultimately discontinued

with prejudice.

Under the totality of the circumstances, the

respondent is suspended from the practice of law for a

period of five years.

MANGANO, P.J., BRACKEN, RONSENBLATT,

MILLER and THOMPSON, JJ., concur.

ORDERED that the petitioner’s motion to

confirm the report of the Special Referee is granted;

and it is further,

ORDERED that the respondent’s cross motion

to disaffirm the report of the Special Referee is

denied; and it is further,

ORDERED that the respondent, Shmuel B.

31

es oe

and refrain from (1) Practicing law

in any form, either as principal or agent, clerk or

employee of another, (2) appearing as an attorney or

counselor-at-law before any court, Judge, Justice,

board, commission or other public authority, (3) giving

to another an opinion as to the law or its application

or any advice in relation thereto, and (4) holding

himself out in any way as an attorney and counselor-

at-law.

ENTER

Martin H. Brownstein

Clerk

33