# Petition for Writ of Certiorari — Heilprin v. Wisconsin Board of Attorney's Professional Responsibility > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1180%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 506 U.S. 972 ## Text 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, 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1180%3A1. Public record. Not legal advice.