Petition for Writ of Certiorari — Heilprin v. Wisconsin Board of Attorney's Professional Responsibility

Supreme Court, U.S.

rte Bp

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

RICHARD A. HEILPRIN,

Petitioner,

Vv.

WISCONSIN BOARD OF ATTORNEY'S

PROFESSIONAL RESPONSIBILITY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF WISCONSIN

JOHN H. BOWERS®

214 West Mifflin Street

Madison, Wisconsin 53703

(608) 256-9031

- MICHAEL RILEY and

ALAN G. B. KIM, JR.**

411 West Main Street

Madison, Wisconsin 53703

(608) 257-4715

*Counsel of Record

**Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

i. IS THE DUE PROCESS CLAUSE OF THE

14TH AMENDMENT VIOLATED WHEN AN ATTORNEY IS

DISCIPLINED FOR VIOLATING A PORTION OF HIS

"ATTORNEY'S OATH" WHERE THE LANGUAGE OF

THAT PORTION IS VAGUE, AMBIGUOUS AND DOES

NOT SET FORTH REASONABLE AND ASCERTAINABLE

STANDARDS OF PROFESSIONAL CONDUCT?

2. DID THE WISCONSIN SUPREME COURT

VIOLATE THE DUE PROCESS CLAUSE OF THE 14TH

AMENDMENT WHEN THEY REVOKED PETITIONER'S

LICENSE TO PRACTICE LAW BASED SOLELY ON

GROUNDS WHICH PETITIONER HAD NOT BEEN

INFORMED OF AND_ HAD BEEN GIVEN NO

OPPORTUNITY TO DEFEND AGAINST?

PARTIES TO THE PROCEEDING

Attorney Richard A. Heilprin, 905 15th

Avenue East, Seattle, Washington, 98112,

appeared on his own behalf.

Attorney Michael Riley; Atterbury,

Riley, Luebke and Pretto, S.C., 411 West

Main Street, Madison, Wisconsin, 53703,

appeared on behalf of Mr. Heilprin.

Attorney Kitty Brennan; Murphy &

Brennan, 1334 Milwaukee Avenue, Post Office

Box 308, South Milwaukee, Wisconsin, 53712-

0308, appeared for the Board of Attorney's

Professional Responsibility.

Timothy L. Vocke, Referee, Reserve

Judge, State of Wisconsin, Post Office Box

1416, Rhinelander, Wisconsin, 54501.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ]

PARTIES TO THE PROCEEDING 11

TABLE OF AUTHORITIES V

REFERENCE TO THE OFFICIAL AND Vil

UNOFFICIAL REPORTS DELIVERED

IN THE CASE

STATEMENT OF GROUNDS ON WHICH THE 1

COURT'S JURISDICTION IS INVOKED

STATEMENT OF THE CASE 1

ARGUMENT 8

Ls THE COURT SHOULD GRANT 8

CERTIORARI AS THE WISCONSIN

SUPREME COURT HAS DECIDED

AN ISSUE IN A WAY THAT

CONFLICTS WITH DECISIONS OF

THIS COURT

Il. THE DEPRIVATION OF ADEQUATE 10

NOTICE AND AN OPPORTUNITY TO

DEFEND IS A DENIAL OF DUE

PROCESS

A. The Attorney's Oath 10

Proscribing "Offensive

Personality" is

Unconstitutionally Vague,

in that it Fails to Set

Forth Reasonable and

lil

Ascertainable Standards of

Professional Conduct

B. Petitioner Was Denied 14

Due Process of Law When

the Lower Court Revoked

His License to Practice

Law Based Solely on

Grounds Which He Had

Not Been Informed of and

Had Been Given No

Opportunity to Defend

Against

Ifift. THE COURT SHOULD PROTECT 24

PETITIONER'S RIGHT TO

PROCEDURAL DUE PROCESS AND

GRANT THE WRIT OF CERTIORARI

CONCLUSION 2

Ne)

APPENDIX 32

iv

TABLE OF AUTHORITIES

Page(s)

Case Law: Federal

Connally v. General Const, <a

WOO U.8. SEG CGI) 6c yk-oe 6h dwo ks 13

Ex Parte Garland,

4 Wall. 333, 380 (1866)...... 26-27

Fuentes v. Shevin,

407 U.S. 67 24 2 gS er eee Lv

in Re Oliver,

eae UB. S57 CIOMB) co ccc Sc cccn 26

In Re Ruffalo,

e900 U8. SO4 11967) ick ooo ac ee 24-27

Shelley v. Kraemer,

gee USS. i Pa co ee ae a 10

Case Law: State

Disc. Proc. Against Heilprin,

168 Wis. 2d 1, 482 N.W.2d

isan Oe Be | aE eee 15

Disc. Proc. Against Heilprin,

59 Wis. 2d waa, 207? HY. 2eé

Ore CEPT etc vanes Oakes 6-8, 15-20

2)

,

tatutes

~

2

otate

“-—

+

,%

i.

V

REFERENCE TO THE OFFICIAL AND UNOFFICIAL

REPORTS DELIVERED IN THE CASE

Disciplinary Proceedin

s Against Heilprin

Disciplinary Proceedings Against Heilprin

Report and Recommendation of Referee

Case No. 90-0503-D, filed April 24

1992.

,

Qs

168 Wis. 2d 1, 482 N.W.2d 908 (i992).

,

,

STATEMENT OF GROUNDS ON WHICH THE COURT'S

JURISDICTION IS INVOKED

The judgment petitioned for review was

entered on May 5, 1992. The statutory

provision relied upon which confers

jurisdiction to review said judgment by

writ of certiorari is 28 U.S.C. § 1257

(1988). The constitutional provision

involved in the case and relied upon by

petitioner is the Due Process Clause of the

U.S. Cons. amend. XIV, § 1, "...nor shall

any State deprive any person of life,

liberty, or property without due process of

LOW. «a ™

STATEMENT OF THE CASE

This petition for review arises from

a disciplinary proceeding against Richard

A. Heilprin, commenced by the filing of a

Complaint and Order to Answer in the

Supreme Court of Wisconsin on March 12,

—

990. The Complaint and Order to Answer

were filed by the Board of Attorneys

Professional Responsibility of the State of

Wisconsin.

The complaint alleged that Mr.

Heilprin, then an attorney licensed to

practice law in Wisconsin, had violated WI

SCR 20:8.4(g) (then WI SCR 20.04(1)) of the

Wisconsin Code of Professional

Responsibility by engaging in "offensive

personality" contrary to the Attorney's

Oath, WI SCR 40.15 (then WI SCR 40.13).

(See Appendix.) The alleged violations

occurred in separate instances involving a

Mrs. Tate and a Mrs. McSherry. Both Tate's

and McSherry's complaints were consolidated

in the Board's complaint and were

respectively enumerated as the First and

Second Causes of Action.

Both the Tate and McSherry portions of

the complaint were based solely upon the

"offensive personality" language found in

the Attorney's Oath. That language states

that an attorney shall "abstain from all

offensive personality." WI SCR 40.15 (then

WI SCR 40.13). WI SCR 20:8.4(g) (then WI

SCR 20.04(1)) prohibits that conduct by

reference, stating that ag FS) is

professional misconduct for a lawyer

to...(g) violate the attorney's oath."

Both causes alleged that Mr. Heilprin

had made inappropriate sexual comments to

the women during their individual office

conferences with him. The complaint also

alleged that Mr. Heilprin had represented

a client which allegedly resulted in a

conflict of interest in violation of WI SCR

20:1.7(b) (1988) (then WI SCR 20.24(1)) and

WI SCR 20:1.8(}) (1988) (then WI SCR

20.26(1)).

Following the complaint's filing, the

Board did not add or seek to add additional

violations or charges against Heilprin.

The Honorable Timothy Vocke was

appointed Referee and an Answer and a

Motion to Dismiss incorporating several

affirmative defenses were later filed by

Attorney Heilprin. As one of those

affirmative defenses, Mr. Heilprin argued

that the language proscribing "offensive

personality," which formed the basis for

two of the three charges against him, was

SO vague and indefinite as to fail to put

him or any other attorney on adequate

notice as to what kind of conduct was

prohibited. (See Appendix, "Report and

Recommendation of Referee.")

A final hearing on the charges was

held on March 19, 1991 and continued

through March 21, 1991. The Referee issued

his report and recommendation on April 24,

1991, ruling that no violation occurred

regarding the conflict of interest charge.

Regarding the Tate and McSherry portions of

the complaint, the Referee found that Mr.

Heilprin had made the inappropriate sexual

remarks Tate and McSherry alleged and that

this conduct constituted "offensive

personality" and as a matter of law,

violated the Attorney's Oath. The Referee

dismissed Mr. Heilprin's' constitutional

challenge to the sufficiency of "offensive

personality" as a standard on which to base

discipline as well as his other defenses.

The Referee thereafter recommended Mr.

Heilprin's license to practice be suspended

c.

S

for 18 months. (See Appendix, "Report and

Recommendation of Referee.")

Mr. Heilprin subsequently appealed

from the Referee's report to the Wisconsin

Supreme Court asserting again, in part,

that the “offensive personality" language

of the Attorney's Oath was

unconstitutionally vague and did not

provide an appropriate basis for

discipline. (See Appendix, "Brief of

Appellant.") The court adopted the

Referee's findings of fact concerning

Heilprin's conduct but, contrary to the

Referee's conclusion that such conduct

Violated the Attorney's Oath, summarily

concluded that Heilprin's actions instead

violated a standard of attorney conduct

allegedly set forth in their 1973 decision,

isciplinary Proceedings Against Heilprin,

59 Wis. 2d 312, 207 N.W.2d 878

6

po = i =

(1973) and revoked his license to practice

on that ground. (See Appendix, State v.

Heilprin,") The violation of the alleged

Standard of conduct set forth in Heilprin,

id., was not a basis for any portion of the

charges originally brought against Heilprin

in the Board's complaint nor had it been

raised at any point in the proceedings

prior to the court's decision.

The court chose not toc address the

issue of whether "offensive personality"

constituted an appropriate basis on which

to revoke an attorneys license to practice.

The court felt it unnecessary to address

Mr. Helilprin's vagueness argument and

instead elected to invoke the standard

assertedly set forth in its prior decision

involving Attorney Heilprin, although that

decision had not been alleged or relied

upon by the Board as a basis for this

disciplinary proceeding.

ARGUMENT

Ls THE COURT SHOULD GRANT CERTIORARI AS

THE WISCONSIN SUPREME COURT HAS

DECIDED AN ISSUE IN A WAY THAT

CONFLICTS WITH DECISIONS OF THIS COURT

That portion of the 14th Amendment of

the United States Constitution which

petitioner relies upon prevents a State

from "depriv[ing] any person of life,

liberty or property without due process of

law." U.S. Cons. amend. XIV, § 1. The

proscription against "offensive

personality" contained in the Wisconsin

Attorney's Oath is unconstitutionally vague

and ambiguous because it requires that men

of common intelligence guess at its meaning

and affords no reasonable standard for

agreement as to its application.

Petitioner moreover asserts that his Due

Process rights’ were unconstitutionally

impaired when the Wisconsin Supreme Court

disciplined him based on an alleged

Standard of conduct which was neither

contemplated nor addressed by the Board,

the Referee or Mr. Heilprin. The Board's

complaint involving Tate and McSherry

alleged only that Heilprin violated the

Attorney's Oath by engaging in "offensive

conduct." It was this issue which was

contested by the parties and decided by the

Referee. It was this issue which afforded

the only grounds for the court's

consideration in reviewing the Referee's

findings of fact, conclusions of law and

disciplinary recommendation. Petitioner

asserts that the court's ex post facto

decision to discipline Heilprin based on

grounds other than those he had been

apprised of and had an Opportunity to

defend against, violated the Due Process

Clause of the 14th Amendment § and is

contrary to the prior decisions of this

Court.

bH

bH

.

THE DEPRIVATION OF ADEQUATE NOTICE AND

AN OPPORTUNITY TO DEFEND IS A DENIAL

OF DUE PROCESS

"The action of state courts in

imposing penalties or depriving

parties of other substantive

rights without providing adequate

notice and Opportunity to defend,

has, of course, long been

regarded as a denial of the due

process of law guaranteed by the

Fourteenth Amendment. Shelley v.

Kraemer, 334 U.S. i, 16, 68 §.Ct.

836 (1948).

A. The Attorney's Oath Proscribing

"Offensive Personality" is

Unconstitutionally Vague, in That

it Fails to Set Forth Reasonable

and Ascertainable Standards of

Professional Conduct

Though the lower court did not address

this issue, petitioner asserts that the

10

constitutionality of the "offensive

personality" language of the Oath was the

proper issue on appeal and hence is

discussed here.

The Wisconsin Attorney's Oath reads in

part that, "I will abstain from all

offensive personality." Such conduct is

incorporated by reference under WI SCR

20:8.4(g) (then WI SCR 20.04(1)) which

states that "[a] lawyer shall not violate

a disciplinary rule or the attorney's

oath." Imposition of discipline based

solely on "offensive personality" does not

comport with the language or the spirit of

the decisions of this Court. The Board

seized upon that language to impose

discipline based upon the broadest possible

language in the Oath and which finds no

equivalent in SCR 20, which sets forth the

Rules of Professional Conduct for

11

Attorneys. The Court's ruling in this case

will determine whether not only Mr.

Hellprin, but any attorney can be subjected

to discipline solely for violating the

broad ASpirational language of a

professional oath which provides no further

guidance as to its intention or reach.

The particular language relied upon by

the Board is couched in terms that are more

appropriate for setting goals than setting

standards. While portions of the Oath may

fairly be viewed as setting forth minimal

standards, that can scarcely be said of the

reference to “offensive personality." The

ambiguity of this standard effectively

deprives attorneys of notice of what

constitutes "offensive personality" despite

the fact that this lack of notice does not

immunize them from punishment should they

be unfortunate enough to act in what a

12

particular court may deem "offensive."

Adequate notice of what conduct is

prohibited ls "a well-recognized

requirement, consonant alike with Ordinary

notions of fair play and the settled rules

either forbids or requires the doing of an

ict in terms so vague that men of common

intelligence must necessarily guess at its

meaning and differ as to its application,

violates the first essential of due process

Of law. Id.

If lawyers are to be judged and found

wanting based upon offensive personality,

what limits are to be set upon that

the use of strong, if not

bH

7)

judgment?

sexually explicit language to be a fit

Subject for discipline? Will the

recounting of jokes which do not meet the

current standards of good taste or

restraint subject the teller to suspension?

Many of us exhibit personal foibles that

may be offensive to others, and most have

taken offense at the speech or conduct of

other lawyers on more than one occasion.

In each instance where offense is given or

taken, are we placed in peril of

discipline? The language of the Oath

provides no guidance on any of these issues

and such an amorphous standard should not

be used to so broadly proscribe and

severely punish conduct.

B. Petitioner Was Denied Due Process

of Law When the Lower Court

Revoked His License to Practice

Law Based Solely on Grounds Which

He Had Not Been Informed of and

Had Been Given No Opportunity to

Defend Against.

The lower court denied Mr. Heilprin

due process when they imposed discipline

based on the violation cf a standard not

otherwise raised and defended against in

the prior proceedings. In its opinion,

the court stated:

"We adopt the referee's findings

of fact concerning Attorney

Heilprin's conduct but, contrary

to the referee's conclusion of

law that such conduct violated

the Attorney's Oath, we conclude

that it violated that very

standard of attorney professional

conduct enunciated in 1973 ina

case involving this same

attorney, Disciplinary

Proceedings Against Heilprin, 59

Wis. 2d 312, 207 N.W.2d 878

(1973)." Disciplinary Proceedings

Against Heilprin, 168 Wis. 2d,

482 N.W. 2d 908 (1992).

The court, perhaps mindful of the

Shortcomings of “offensive personality" as

a Standard for discipline, simply abandoned

that standard and substituted an undefined

standard which had not been cited or relied

upon at any point in the proceedings. In

join so, the court deprived Attorney

Hellprin of any notice or meaningful

> 4

UW)

«

Opportunity to defend himself as required

by the 14th Amendment. The violation of

the undefined standard enunciated in

Heilprin, (1973) (See Appendix) was not a

ground upon which the Board's complaint was

based. There is no evidence that either

the Board or the Referee ever asserted that

Heilprin's conduct violated that "standard"

Or that the prosecution of Mr. Heilprin was

in any way based upon it. The decision of

the court to impose discipline upon Mr.

Heilprin based upon a standard which was

never asserted in the course of the

disciplinary proceedings and which Heilprin

was never permitted to address is violative

of fundamental due process requirements.

Regarding the requirements of due

process, this Court has stated that:

"For more than a century the

central meaning of procedural due

process has been clear: Parties

whose rights are to be affected

are entitled to be heard; and in

16

Order that they may enjoy “that

right they must first be

notified...It is equally

fundamental that the right to

notice and an opportunity to be

heard ‘must be granted at a

meaningful time and in a

meaningful manner.'" Fuentes v.

Shevin, 407 U.S. 67, 80 (1971).

In the case at hand, the alleged

violation of the standard of conduct set

forth in Heilprin, (1973) for which Mr.

Heilprin was here disciplined was disclosed

only through the court's decision. Prior

to this, Mr. Heilprin had no knowledge and

had no reason to believe that the charges

against him and the potential for

discipline were to be based on the

violation of an entirely different standard

than that asserted and relied upon by the

Board and defended against by Attorney

Heilprin. Because Mr. Heilprin had no

notice of the charges on which the court

chose to base its discipline, Attorney

Heilprin had no meaningful Opportunity to

defend himself. All of the decisions taken

concerning how to conduct his defense were

rendered meaningless when the court chose

to substitute its own "standard" of conduct

after the fact.

Moreover, the standard of conduct

relied upon by the court and allegedly set

forth in Heilprin, (1973), does not

adequately describe conduct which will or

will not be punished. In that case, the

complaint filed by the Board of State Bar

Commissioners sought the discipline of Mr.

Heilprin for various occasions when he had

created disturbances in a court clerk's

office, threatened and accused the

personnel therein of dereliction and

dishonesty, of making threatening phone

calls and sexual misconduct involving

clients. The complaint specifically sought

18

to punish Heilprin for "“unprofessional

conduct" and he was eventually disciplined

on that ground. Heilprin, 59 Wis. 2d at

The Supreme Court of Wisconsin

affirmed the Referee's findings that

Heilprin had engaged in “unprofessional

conduct" and that his license to practice

should be suspended until he had recovered

from a medical condition which was found to

be the cause of his conduct. The opinion

fails to specifically describe any standard

of conduct that Heilprin violated and which

attorneys should be warned against. The

court merely writes that "conduct of the

type engaged in by Heilprin cannot be

condoned." Id. at 322. The court in its

present decision made no effort to more

specifically define or enunciate_ the

"Standard" on which it relies. This

19

general admonition falls far short of the

certainty and clarity required for a

prohibitory rule to pass constitutional

muster.

In the 1973 case, Heilprin was found

to have engaged in acts of harassment,

verbal abuse and sexual misconduct. The

court stated that conduct of "th[is]

type...cannot be condoned." Id. The court

did not specify which acts or combination

of acts formed the basis for its decision.

The 1973 case actually focused on a

defense based on medical incapacity and was

clearly not intended to set standards or

conduct. The court's attempt to rely on

the case as providing such standards is

misplaced. The constitution requires fair

notice of acts which are prohibited as well

as clear standards by which persons will be

judged to have engaged in them. The case

relied on, even if timely raised, does not

pass muster.

Moreover, the lower court's reliance

on Heilprin, (1973) is incorrect. Heilprin

involved a disciplinary proceeding based

upon allegations of "unprofessional

conduct." The proceedings were brought

pursuant to sec. 256.28, Wis. Stats (1972),

Attorneys; Admission to Practice. (See

Appendix.) Interestingly, that section

merely outlines the procedures whereby

attorneys were licensed and admitted to the

Wisconsin Bar and did not list duties or

standards of conduct required of those

admitted. The section does not list

general or specific types of conduct for

attorneys to aspire to or to avoid. The

section also omits any type of punishment

or disciplinary proceedings for violations

of the rules of conduct in that day. The

21

Sheer lack of any modicum of rules,

requirements, guidelines or punishments

within the statute upon which the earlier

Heilprin proceedings and standard of

conduct were allegedly _ based, wholly

undercuts the reasoning and propriety of

the recent Heilprin court's reliance upon

it.

Finally, the conduct which Mr.

Heilprin's discipline is based in the

present case is substantially different

than that for which he was disciplined in

Heilprin, (1973). There are no allegations

here of the pattern of threats’ and

harassment which were relied upon in the

earlier proceeding. There was no

contention here of specific sexual conduct

which would be proscribed under’ the

criminal code. The only allegations in the

present case relate to off color and

22

inappropriate remarks. The factual

discrepancies between the two cases further

highlight the impropriety of the court's

application of the Heilprin (1973)

"standard" to the case at hand.

Ultimately, the disciplinary system

must stand the test of fundamental

fairness. There are ample tools at the

system's disposal to accomplish its ends

within those bounds. It is incumbent upon

the system as part of our broader system of

justice to maintain those standards of

fundamental fairness upon which all

citizens rely for protection. An erosion

of those standards in proceedings authored

and governed by the arbiters of fairness in

our system undermines the very foundation

of that system. To permit discipline to be

based on vague standards substituted after

23

the fact would undermine the basic

principle of notice and fair play.

IiIl. THE COURT SHOULD PROTECT PETITIONER'S

RIGHT TO PROCEDURAL DUE PROCESS AND

GRANT THE WRIT OF CERTIORARI

The Referee's report noted that the

Supreme Court of Wisconsin has the

authority to determine who it deems fit to

practice law within the state. Although

the court does have the inherent power to

discipline their attorneys, that power does

not exempt them from the requirements of

the Constitution. This Court has

specifically mandated that a lawyer charged

with misconduct in a disbarment

proceeding is entitled to procedural due

process, which includes fair notice of the

charge. in re Ruffalo, 390 U.S. 544

(1967).

In Ruffalo, an Ohio lawyer was charged

with 12 counts of misconduct by the Ohio

24

Board of Commissioners. At the hearings

before the Board, a 13th charge was added

stemming from testimony given at those

hearings by Ruffalo and one Orlando, whom

Ruffalo had at some earlier point employed.

The Board eventually found Mr. Ruffalo

guilty of seven counts of misconduct,

including the later added charge, No. 13.

On review, the Ohio Supreme Court affirmed

the conviction based solely on Ruffalo's

violation of charge No. 13 and one other

charge. The Federal District Court, after

ordering Ruffalo to show cause why he

should not be disbarred, found that there

was no misconduct. The Court of Appeals

Similarly ordered Ruffalo to show cause why

he should not be stricken from the roll

based on Ohio's disbarment order. Id. at

545.

25

Relying solely on the Ohio court's

record and findings, the appellate court

held that only charge No. 13 justified Mr.

Ruffalo's disbarment in that court. This

Court reversed the appellate court. L&

held that because Ruffalo had no notice

that his employment of Orlando would be

considered a disbarment offense until after

both he and Orlando had testified, the

procedure against Ruffalo was wanting in

due process.

In deciding the case, the court at p.

550 stated that:

"Disbarment, designed to protect

the public, is a punishment or

penalty imposed on the lawyer,

Ex parte Garland, 4 Wall. 333,

380 (1866) (other citations

omitted)... [and] [hje is

accordingly entitled to

procedural due process, which

includes fair notice of the

Charge. In re Oliver, 333 U.S.

257, 273 (1948)."

26

The Court held that in this case,

Ruffalo had no notice that his employment

of Orlando would be considered a disbarment

offense until after the Board's complaint

was filed and after both he and Orlando had

testified at length. Ruffalo, at 551. The

Court emphatically stated that:

"(T)he charge must be’ known

before the proceedings commence.

They become a trap when, after

they are underway, the charges

are amended on the basis of

testimony of the accused." Id.

This Court concluded that the absence of

fair notice as to the precise nature of the

charges against him deprived Ruffalo of

procedural due process. Id. at 552.

The denial of procedural due process

in the present case is more egregious than

in Ruffalo. The charge against Ruffalo

which ultimately served as the basis of his

appellate disbarment, was brought during

the proceeding following Ruffalo's and

27

Orlando's testimony, Heilprin's alleged

violation of the asserted standard set

forth in Heilprin, 59 Wis. 2d 312 (1973)

was not disclosed as a basis for his

discipline until after the Wisconsin

Supreme Court had made and filed their

decision, giving Heilprin no chance to

defend himself against it. The trap which

snared Mr. Heilprin was more insidious than

that which this Court found unacceptable in

Ruffalo, since the grounds for discipline

were not disclosed until the reviewing

court's decision was released. Mirroring

the failings of the Ruffalo appellate

court, the Wisconsin court failed to take

any additional evidence concerning

Heilprin's alleged violation of this new

standard and relied entirely on the

Referee's findings of fact. Attorney

Heilprin has had no opportunity prior to

,

this time to address these issues or to

offer a defense.

The Wisconsin Supreme Court elected to

discipline Heilprin based on a standard of

conduct which it did not define and which

served no part in the disciplinary

proceedings. In doing so, the court

effectively deprived Mr. Heilprin of the

opportunity to defend himself against

defined and definable charges which is

central to our concept of due process.

CONCLUSION

Petitioner respectfully requests the

Court for a Writ of Certiorari to the

Wisconsin Supreme Court to review that

court's failure to comply with the

procedural due process requirements of the

14th Amendment. The scope of the lower

court's review of this case should have

29

been limited to two matters: 1) Whether

the proscription against "offensive

personality" is unconstitutionally vague

and ambiguous and if not, 2) Whether

Heilprin violated the Attorney's Oath by

engaging in “offensive personality" and

whether the degree of discipline based on

the violation of that standard alone was

appropriate and constitutional.

By avoiding review of the above issues

and basing Heilprin's discipline on charges

previously unknown to him, the court

deprived Mr. Heilprin of notice and any

opportunity to defend himself

against the charges for which he was

disciplined as required by the

Constitution.

30

CI

Respectfully resubmitted this LS day

of August, 1992.

Yf, .

MICHAEL RILEY/and

ALAN G. B. om.

Counsel for Petitioner

31