Opposition Brief — Heilprin v. Wisconsin Board of Attorney's Professional Responsibility

a a ee ETO

:

ane

Wea

BEST AVAILABLE COPY!

%

i

$i

i

éupremc ourt, U.S.

FILED

(3) OCT 16 1992

In The aa

Supreme Court of the United States

October Term, 1992

¢

RICHARD A. HEILPRIN,

Petitioner,

Vv.

WISCONSIN BOARD OF ATTORNEYS

PROFESSIONAL RESPONSIBILITY,

Respondent.

¢

Petition for a Writ of Certiorari

to the Wisconsin Supreme Court

+

BRIEF OF THE RESPONDENT IN OPPOSITION

TO THE PETITION FOR WRIT OF CERTIORARI

¢

JAMES E. DOYLE

Attorney General

State of Wisconsin

WARREN D. WEINSTEIN

Assistant Attorney General

State of Wisconsin

Counsel of Record

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-3793

Counsel for Respondent

QUESTIONS PRESENTED

1. Was the revocation of petitioner's license to

practice law a violation of the Due Process Clause of the

Fourteenth Amendment when the complaint filed with the

Wisconsin Supreme Court alleged that petitioner directed

sexually explicit and suggestive comments and questions

to two women clients during office conferences in the

course of the attorney/client relationship, those facts were

proved, but the Wisconsin Supreme Court revoked

petitioner's license based on the standard of conduct

enunciated in State v. Heilprin, 59 Wis. 2d 312, 207 N.W.2d

878 (1973), rather than the "offensive personality" standard

of the attorney's oath?

2. Is the standard of conduct for which petitioner's

license was revoked so vague as to be unconstitutional? —~

ii

TABLE OF CONTENTS

Page

GIRS PRC EES 66s vee cenuseseawekuasanns i

See AER i sw ck ee eee eee 1

DEST d Ge Eee GD: 6s wa bee bee eee wan een 2

REASONS FOR DENYING THE WRIT ............... 4

I. THE DECISION OF THE WISCONSIN

SUPREME COURT DOES NOT

VIOLATE THE DUE PROCESS

CLAUSE OF THE 14TH AMENDMENT

OF THE UNITED STATES

CAMPER UEEEEE. ss can eeeuaohe Vices + % 4

Il. NEITHER “OFFENSIVE

PERSONALITY” NOR THE STANDARD

OF CONDUCT IN STATE v. HEILPRIN

IS SO VAGUE AS TO BE

LIDWAA UA RRUSEIMIEIES sk peck eae bance 8

CRIA © kk aleV eh ea eae eee ee ae eos 10

CASES CITED

Arnett v. Kennedy,

ge S| eee ree we eee 9-10

Attorney Grievance Commission

v. McBurney,

282 Md. 116,

ee OM ae eee eee 5

Colten v. Kentucky,

8: Be Peer rere re fe err 9, 10

lil Page

Disciplinary Proceedings

Against Heilprin,

168 Wis. 2d 1,

Ge We. We BOG (IGOR) 2... eee 1, 3-4

Ex parte Secombe,

ee Gee Ch RO.) OCIBGT) 2 ce ewe eee 8

In re Farmer,

242 Kan. 296,

gf aa 5

In re Ruffalo,

GE ES re Ae

In re Wright,

131 Vt. 473,

scar a ay ead acale «ca 8-8 5

Koontz v. Glossa,

Pee eae oe ceee Gat. TOBE) 2g ww cc eens. 7

State v. Heilprin,

59 Wis. 2d 312,

a fe 2 >: i, 3, 7, 8, 10

United States Civil Serv.

Comm'n v. National Ass'n

of Letter Carriers,

ee eee 8-9

Zauderer v. Office of

Disciplinary Counsel,

oe I re 6

iv Page

CONSTITUTIONAL PROVISIONS

18 a ee Re re ee ee er i, 4, 7, 10

RULES CITED

po Se Peer ee ee ree ere Tee 2, 3, 4, 7,9

oe | ee ee ee ee ee 2

See dc dene ee rn as hceeecee eens 3, 4, 7

ed: Se a ee ee ay ee nae 4

No. 92-329

In The

Supreme Court of the United States

October Term, 1992

e

RICHARD A. HEILPRIN,

Petitioner,

We

WISCONSIN BOARD OF ATTORNEYS

PROFESSIONAL RESPONSIBILITY,

Respondent.

¢

Petition for a Writ of Certiorari

to the Wisconsin Supreme Court

S

BRIEF OF THE RESPONDENT IN OPPOSITION

TO THE PETITION FOR WRIT OF CERTIORARI

S

INTRODUCTION

The respondent, Wisconsin Board of Attorneys

Professional Responsibility, respectfully requests this

Court deny the petition for writ of certiorari requesting

review of the May 5, 1992, decision and order of the

Wisconsin Supreme Court, revoking the petitioner's

license to practice law in Wisconsin, Disciplinary

Proceedings Against Heilprin, 168 Wis. 2d 1, 482 N.W.2d

—- 908 (1992), for directing sexually explicit and suggestive

comments and questions to two women clients during

office conferences in the course of an attorney/client

relationship.

4

STATEMENT OF THE CASE

Respondent filed a complaint against the petitioner

alleging that on two occasions with different female clients

petitioner had directed sexually explicit and suggestive

comments to them in office conferences during the course

of the attorney/client relationship. In the case of

Mrs. Tate, one of the clients, the petitioner directed

sexually explicit comments to her on two occasions and

made such comments in her presence on a third occasion.’

In the case of Mrs. McSherry, the second client, on two

occasions petitioner directed sexually explicit comments at

Mrs. McSherry.” A third count also alleged that petitioner

had represented a client in a conflict of interest situation.

Respondent maintained that directing sexually explicit

comments to female clients violated the attorney's oath

which admonishes attorneys to refrain from "offensive

personality." Wis. SCR 20:8.4(g) states:

It is professional misconduct for a

lawyer to:

(g) violate the attorney's oath.

Respondent also maintained that the conflict of interest

allegation violated Wis. SCR 20:1.7(b).

On March 12, 1990, petitioner filed his answer and

a motion to dismiss. Petitioner raised a number of

affirmative defenses, including that the "offensive

personality” standard of the attorney's oath was vague and

‘ The specifics of the Tate complaint are set forth in the

report of the referee (P-Ap. 73-76).

2 The particulars of the comments to Mrs. McSherry appear

in the report of the referee (P-Ap. 79-80).

therefore unconstitutional. He also denied specifically that

he had made the comments alleged to the two female

clients.

Pursuant to Wisconsin Supreme Court rules, the

Wisconsin Supreme Court appointed a referee to hear

evidence and submit a report. The referee heard evidence

in a two-and-one-half-day trial, decided preliminary

issues including the challenge that the "offensive

personality" standard of the attorney's oath was

unconstitutionally vague. The referee _ specifically

addressed in his report the issue of credibility between

petitioner and the two female clients. The referee found

for the petitioner on the third count.

The Wisconsin Supreme Court revoked the

petitioner's license on the basis of Wis. SCR 20:8.4(f) rather

than (g). Rule 20:8.4(f) provides:

It is professional misconduct for a

lawyer to:

(f) violate a statute, supreme court

rule, supreme court order or supreme court

decision regulating the conduct of lawyers.

Petitioner had previously been disciplined, in part upon

sexual comments and touching of female clients. State v.

Heilprin, 59 Wis. 2d 312, 207 N.W.2d 878 (1973). The

Wisconsin Supreme Court observed in the present case:

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 we

oo.

enunciated in 1973 in a case involving this

same attorney, Disciplinary Proceedings Against

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

There, the court suspended Attorney

Heilprin's license for... his having talked

obscenely, made indecent’ gestures,

indecently exposed himself and made

indecent sexual proposals to two women

clients.

Disciplinary Proceedings Against Heilprin, 168 Wis. 2d at 2,

482 N.W.2d at 908. The Wisconsin Supreme Court ordered

petitioner's license to practice law in Wisconsin revoked

and entered further orders concerning the payment of costs

and notification of clients and courts as~ provided in

Wis. SCR 22.26.

REASONS FOR DENYING THE WRIT

I. THE DECISION OF THE

WISCONSIN SUPREME COURT

DOES NOT VIOLATE THE DUE

PROCESS CLAUSE OF THE 14TH

AMENDMENT OF THE UNITED

STATES CONSTITUTION.

Petitioner contends that by finding his conduct of

directing sexually explicit and suggestive comments and

questions to two female clients to have violated

Wis. SCR 20:8.4(f) rather than Wis. SCR 20:8.4(g), the

Wisconsin Supreme Court violated due process as first

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

this Court concluded that Ruffalo had been denied due

process in his disciplinary proceeding because the process

in that case was a trap. Ruffalo had been charged with

hiring another to solicit clients. He testified in his own

behalf that he had actually hired an employee of a railroad

to investigate potential cases against that railroad. The

Ohio Supreme Court then disciplined Ruffalo for hiring

someone to perform services in conflict with the interests

of his main employer.

The Court in Ruffalo held that attorneys have a due

process right to know the charge against them so they

could adequately defend themselves. In Ruffalo, the

attorney did not know that the hiring of an investigator to

investigate claims against his main employer was alleged

to have been prohibited conduct. Moreover, the conduct of

hiring an investigator was not the type of conduct which

would be obviously improper to a scrupulous person.

In this case, petitioner had notice of the factual

allegations which the respondent claimed constituted

misconduct. The Due Process Clause requires no more.

Decisions in state supreme court cases bear out the

statement of the Kansas Supreme Court that

The complaint is sufficient where it sets out

the facts which underlie the charges of

misconduct and places the attorney on notice

as to what ethical violations might arise

therefrom. The complaint need not contain

an explicit reference to the _ specific

disciplinary rules which might have been

violated by the attorney.

In re Farmer, 242 Kan. 296, 300, 747 P.2d 97, 100 (1987).

See also In re Wright, 131 Vt. 473, 310 A.2d 1 (1973); Attorney

Grievance Commission v. McBurney, 282 Md. 116, 383 A.2d 58

(1978).

In this case, the conduct that petitioner was found

to have committed was the very same conduct alleged in

the complaint and for which discipline was imposed:

directing sexually explicit and suggestive comments to

female clients. The "charge" did not alter from the

complaint to the hearing to the Wisconsin Supreme Court

decision. Only the reasoning or, as characterized by the

Wisconsin Supreme Court, the conclusion of law changed.

The disciplinary action imposed was imposed for the

conduct charged, albeit under a different theory.

Unlike Ruffalo there was no trap to ensnare

petitioner. He was aware of the alleged factual basis for

the misconduct. The respondent presented evidence that

the incidents had occurred. Petitioner presented evidence

that they had not occurred. The referee resolved the

conflict in evidence against the petitioner. Petitioner was

not disciplined based solely on evidence he presented which

he thought was a defense to the alleged misconduct. He

was disciplined for committing the conduct which the

respondent alleged he had committed. Petitioner knew

that the issue in this case was whether or not he had

directed sexually explicit and suggestive comments to two

of his female clients. He defended on that basis. Although

the Wisconsin Supreme Court used a different "theory"

than the respondent, the difference was simply not

significant from a constitutional point of view.

Nor did petitioner suffer any prejudice as the result

of this change in theory. In Zauderer v. Office of Disciplinary

Counsel, 471 U.S. 626, 655 n.18 (1985), this Court

differentiated Ruffalo because "the variance between the

theory of the Office of Disciplinary Counsel and the Board

of Bar Commissioners had no such prejudicial effect on

appellant." No prejudicial effect is present in this case.

Petitioner does not even suggest how holding that he

violated a standard of conduct that had been enunciated by

the Wisconsin Supreme Court in a case against him in

1973 would have caused him to present a different defense

than he presented.

The definiteness and certainty required by due

process is such definiteness and certainty as will enable a

presumptively innocent man to prepare for trial. Koontz v.

Glossa, 731 F.2d 365 (6th Cir. 1984). A presumptively

innocent man alleged to have committed the acts which

petitioner committed would have prepared exactly the

same whether the initial allegation had been under

Wis. SCR 20:8.4(f), violation of the standard of conduct in

State v. Heilprin, or Wis. SCR 20:8.4(g), "offensive

personality" standard of the attorney's oath.

Nor can petitioner claim he was unaware that this

type of conduct could result in the loss of his license. As

observed by Justices White and Marshall in Ruffalo,

members of the bar can be "assumed to know that certain

kinds of conduct, generally condemned by responsible men,

will be grounds for disbarment." 390 U.S. at 555. All

attorneys should be aware that the type of comments

which petitioner was found to have made to female clients

are improper for members of the bar. Certainly, petitioner,

who had been previously disciplined in part for very

similar conduct, should have been aware that his conduct

could result in his discipline, including disbarment.

The Wisconsin Supreme Court did not violate the

Due Process Clause of the Fourteenth Amendment of the

United States Constitution by revoking petitioner's license.

¢

II. NEITHER "OFFENSIVE

PERSONALITY" NOR THE

STANDARD OF CONDUCT IN

STATE v. HEILPRIN IS SO VAGUE

AS TO BE UNCONSTITUTIONAL.

Petitioner contends that the language of the

"attorney's oath" proscribing "offensive personality" is

unconstitutionally vague. The simple answer to this

contention is that the Wisconsin Supreme Court did not

discipline petitioner for "offensive personality;" but, even if

they had or petitioner had claimed before this Court that

the standard of conduct in State v. Heilprin is similarly

vague, it avails him nothing.

Due process does not require that a rule contain an

explicit definition of every term. All that is necessary is

that the rule prescribe general principles so that those

subject to the rule are reasonably able to determine what

conduct is appropriate. Ex parte Secombe, 60 US.

(19 How.) 9, 14 (1857). As this Court observed in United

States Civil Serv. Comm'n v. National Ass'n of Letter Carriers,

413 U.S. 548, 578-79 (1973):

[T]here are limitations in the English

language with respect to being both specific

and manageably brief, and it seems to us

that although the prohibitions may not

“satisfy those intent on finding fault at any

cost, they are set out in terms that the

ordinary person exercising ordinary common

sense can sufficiently understand and

comply with, without sacrifice to the public

interest. "[T]he general class of offenses to

which ... [the provisions are] directed is

plainly within [their] terms... [and they]

will not be struck down as vague, even

though marginal cases could be put where

doubts might arise." United States v.

Harriss, 347 U.S. 612, 618, 74 S.Ct. 808,

812, 98 L.Ed. 989 (1954).

And in Colten v. Kentucky, 407 U.S. 104 (1972), this Court

stated:

The root of the vagueness doctrine is

a rough idea of fairness. It is not a principle

designed to convert into a constitutional

dilemma the practical difficulties in drawing

[rules] both general enough to take into

account a variety of human conduct and

sufficiently specific to provide fair warning

that certain kinds of conduct are prohibited.

Id. at 110.

As pointed out by Justices White and Marshall in

their concurring opinion in Ruffalo, the type of conduct at

issue here is certainly conduct that responsible attorneys

will recognize to be grounds for disbarment. What is

particularly compelling in the present case is that

petitioner consented in 1981 to a private reprimand for

violating the standard of "offensive personality," a violation

of Wis. SCR 20:8.4(g), for just the same kind of misconduct

committed in this case, to wit: asking a female client

explicit questions about her sexual behavior.*

Certainly, petitioner, having already been

disciplined for the same type of conduct, should be aware

that his conduct could result in discipline. This case

presents the same situation as this Court faced in Arnett v.

Kennedy, 416 U.S. 134 (1974), where the petitioner's

contention then boils down to the assertion

that although no constitutionally protected

conduct of ms own was the basis for his

* See the report of the referee (P-Ap. 92).

10

[revocation] on [the board's] version of the

facts, the .. . language in question must be

declared inoperative, and a set of more

particularized regulations substituted for it,

because the generality of its language might

result in marginal situations in which other

persons seeking to engage in constitutionally

protected conduct would be deterred from

doing so.

Id. at 163.

This Court rejected that approach in Arnett and

should reject it here. Since petitioner's own conduct was

of the type which reasonable attorneys should be aware

constitute misconduct, this petitioner's revocation based on

that conduct is not "vulnerable on the ground that [it]

threatens the constitutionally protected conduct of others."

Colten v. Kentucky, 407 U.S. at 111.

¢

CONCLUSION

Petitioner's revocation based on the standard of

conduct set forth by the Wisconsin Supreme Court in State

v. Heilprin did not violate the Due Process Clause of the

Fourteenth Amendment. Néither that standard nor the

"offensive personality" standard of the attorney's oath is

unconstitutionally vague.

| :

11

Therefore, the petition for writ of certiorari should

be denied.

BR\HEILP4RS

Respectfully submitted,

JAMES E. DOYLE

Attorney General

State of Wisconsin

WARREN D. WEINSTEIN

Assistant Attorney General

State of Wisconsin

Counsel of Record

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-3793

Counsel for Respondent