Petition for Writ of Certiorari — Berger v. Cuyahoga County Bar Ass'n

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Text

October Term, 1992

SANFORD J. BERGER. et al.

Petitioners

= VS -

CUYAHOGA COUNTY BAR ASS'N

Respondents

PETITION FOR A WRIT OF CERTIORARI

To The Supreme Court of Ohio

BERGER & FERTEL

SANFORD J. BERGER, Fertel's Couns! of Record

ROBERT M. FERTEL, Berger's Counsel of Record

1836 Euclid Avenue, Room 305

Cleveland, Ohio 44115-2234

Phone: (216) 781-5950

Lawyers for the Petitioners

Ross Printing Co. - 1846 Euclid Ave. - Cleveland, OH 44115 - (216) 696-1444

QUESTIONS PRESENTED

1. Is the Supremacy Clause of the Constitution

of the United States violated when a state

Supreme Court assumes initial and primary dis-

ciplinary jurisdiction to act as a "Court of

Review’ as to the reasonableness of a settle-

ment fund division between a federal civil

rights lawyer and his client, which fund arose

from a successful federal civil rights procee-

ding in a federal court?

2 Can a state Supreme Court act as a "Court

of Review" as to the reasonableness of a set-

tlement fund division between a "prevailing

pacty"’ client and his lawyer, in a federal

civil rights proceeding in a federal court,

when there was a client-forced package settle-

ment of the monetary judgment and Section 1988

request for attorney fees?

3. When a federal district court has its own

disciplinary Rules; has not adopted the situs

state's disciplinary Rules, and has not dele-

gated its disciplinary authority to the situs

state, does the involved federal judge have

primary and exclusive jurisdiction to review

the ethical conduct of attorneys who have

successfully litigated a federal civil rights

Suit before him?

4. As to the reasonableness of an attorney-

client contract for division of a settlement

fund in a successfully concluded federal civil

rights proceeding, is the reasonableness of

the division to be solely determined upon the

basis of federal substantive law and federal

ethical standards?

as Is the enforcement of state ethical Rules

by a state, against federal civil rights law-

yers, preempted by federal law when such state

disciplinary proceedings frustrate the pur-

poses and objectives of the federal Civil]

Rights scheme?

6. Does Garman-type preemption deprive a state

Supreme Court of jurisdiction to review, for

disciplinary purposes, the reasonableness of a

settlement fund division between a federal]

iil

civil rights lawyer and his client when such

fund arose from a successful civil rights pro-

ceeding in a federal court?

7. When a "prevailing party" litigant waives

a major portion of the fully compensatory fee

he could have received from the defendant to

fully compensate his lawyer (thereby aborting

an award of attorney fees by the court) does

Section 1988 permit the involved lawyer to

recover all or part of the fee deficiency from

his client?

8. Is a successful lawyer for a "prevailing

party" litigant, in a Section 1983 action, the

alter ego of that "prevailing party’ litigant

under the provisions of Section 1988 so that

the successful lawyer's claim for a reasonable

attorney's fee under Section 1988 is vested,

and cannot be unilaterally waived, diluted or

settled by the litigant?

9. Are the percentages set forth in a contin-

gent fee contract the maximum amount success~

ful federal civil rights lawyers may receive

when their “prevailing party" client unilater-

ally waives a major portion of his Statutory

right to recover a fully compensatory attorney

ee from the defendant?

10. Are federal civil] rights lawyers the alter

ego of federal government attorneys so that

they also enjoy federal official immunity

regarding their representation of a federal]

Civil rights litigant in a federa] court pro-

ceeding?

11. When the Ohio Supreme Court has estab-

lished its own independent, paid, trained,

impartial, objective and accountable lawyer-

policing entity in the form of the "Office of

Disciplinary Counsel," can it then further

delegate lawyer-policing authority to private

clubs throughout the State of Ohio that can

Show favoritism for their own club members

while singling-out unpopular non~club members

for disparate treatment?

12. Are state attorney disciplinary actions

invalid and violative of the Equal Protection

Clause of the Fourteenth Amendment when the

affected attorneys are victims of selective

prosecution by those state disciplinary

authorities?

13. Are federal civil rights lawyers denied

federal constitutional Due Process when they

are deprived of a meaningful opportunity to

have their federal claims heard in a state

disciplinary proceeding plus being denied the

right to sufficiently informed decision-makers?

14. Do the doctrines of res judicata and/or

collateral estoppel apply to state disciplin-

ary proceedings when the complaining client

waived any objections he might have had to the

division of a client-forced settlement fund by

not presenting his objections to the involved

federal judge, in the first instance, and in a

timely manner?

15. Are federal civil rights lawyers denied

federal constitutional Due Process by the lack

of prior notice that their contemplated con-

duct in a federal court proceeding could sub-

sequently be construed as unethical by a state

disciplinary authority:

PARTIES

1989, Sanford J. Berger and Robert M. Fertel.

the Petitioners, were the Respondents in the

The Cuyahoga County Bar Association, the

Respondent herein, was the Relator in those

State court Proceedings.

vil

TABLE OF CONTENTS

Questions Presented i

Parties to the Proceedings Below vi

Index of Authorities xiii

Opinions Below 2

Jurisdictional Statement 2

Constitutional and Statutory Provisions 2

Statement of the Case 3

Reasons for Granting the Writ 19

1. and 2. A state cannot venture into a

foreign jurisdiction for the purpose of

disciplining one of its lawyers on the

basis of the state's belief that said

lawyer engaged in misconduct in that -

foreign jurisdiction. 19

3. The authority and domain of a federal

district judge over his courtroom and

the proceedings therein are sacrosanct,

and a state may not seat itself upon his

bench, in his absence, to review the con-

duct of lawyers who had previously

appeared before him. 22

—

viii

4. In the sense of minding one's own

business: It is the business of a federal

court to apply federal law and standards

in determining the reasonableness of the

fee charged by a successful Civil rights

lawyer in a federal proceeding, while it

is the business of the state to determine

the reasonableness of a lawyer's fee in gq

State proceeding based upon state law and

standards. 23

>. A state may not thwart a federal statu-

tory scheme by immobilizing those federal

actors who would set that federal scheme

Le)

into motion.

6. A state may not cross the border separ-

ating it from federal territory (based upon

the state's own decision that it can cross)

and any intrusion by the state into such

off-limits territory, without right, jus-

tification or invitation, is illegal and

void. 28

7. "A lawyer's time and advice are his

stock in trade." (Abraham Lincoln), and

when a client waives his right to have

someone else pay for his attorney's ser-

vices to him, then he must reasonably pre-

sume that he is personally responsible for

the debt owing his lawyer. 28

8, When services are rendered by a pro-

fessional or tradesman, it 1s their expec-

tancy that they are going to be paid the

reasonable value of those services, and

this is especially true when the guarantor

is supposedly the United States Congress. 32

9. A successful §1983 lawyer is entitled

to receive the reasonable value of his

services under $1988, and a contingent

fee contract is non-controlling when the

client prevents his lawyer from getting

that fee from the defendant. 32

10. If federal civil rights lawyers are

willing to gamble their time and money in

performing services that paid government

lawyers would otherwise be performing;

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suit to a successful culmination only to

then have to spend more than 2,000 hours

in defending himself against after-the-fact

state action (concerning his federal activ-

ities) -- which state action is calculated

to, and does, destroy his reputation,

demean him publicly, and injure him

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immeasurably and irreparably. 4

15. A lawyer who has engaged in federal

court conduct that has not been declared

impermissible by the U.S. Supreme Court is

lenied federal constitutional Due Process,

as he had no prior notice that such con-

duct could be construed as impermissible

by the situs state wherein such federal

court is situated. 50

Conclusion 51

Appendix:

ENTRY of Board of Commissioners on Griev-

ances and Discipline of the Supreme Court

of Ohio (1/4/91) ("Board" hereafter) Al

ENTRY of Board (3/29/91) A3

Xii

Board's Findings of Fact, Co

/ / 7

Law, and Recommendation (5/7,

ENTRY of Supreme Court of Ohio denying

Respondents motion to abstain or, in the

alternative, for extension of time to file

Objections and Brief (6/24/92)

ENTRY of Supreme Court of Ohio denying

Respondents motion to file objections

instanter (7/30/92)

Opinion of Ohio Supreme Court (9/2/92)

United States Constitution:

Supremacy Clause, Art. VI, Cl. 2

Fourteenth Amendment, Sec. 1

)

42 U.S.C. $198!

DR2-106 of Ohio Supreme Court's Code of

Professional Responsibility

DR9-102(B)(4) of Ohio Supreme Court's

Code of Professional Responsibility

Xili

INDEX OF AUTHORITIES

CASES

Alyska Pipeline Service Co. v. Wilderness

society,

1 U.S. 240 (1975) 26

Barr v. Mateo, 360 U.S. 564 (1959) 35

Barry v. Barchi, 443 U.S. 55 (1979) 44

Blanchard v. Bergeron,

489 U.S. 8/ (1989) 30,33

Blonder-Tongue Laboratories v. University

of Illinois Foundation,

402 U.S. 313 (19/1) 49

Blum v. Stenson, 465 U.S. 886 (1984) 30

Boddie v. Connecticut

ZOL U.S. 371 (1971) 4d

Boettcher v. Hartford Insurance Co.,

927 F.2d 23 (CAl1,1991) 51

Brookpark Entertainment, Inc. v. Taft,

951 F.2d /10 (CA6,1991) 39

Brown v. Hotel Employees,

468 U.S. 491 (1984) 28

Burlington v. Dague,

Ueae , 112 S.Ct. 2638 (1992) 2/433

Business Guides, Inc. v. Chromatic

Communications, Inc.,

U.ds [eee eae. 922 (1991) 26

Carey v. Piphus, 435 U.S. 247 (1978) 33

Xiv

Chambers v. Nasco, Inc.,

Usd. » B22 SeOR. 2123 (1991)

Christianburg Garment Co. v. E.E.0O.C.,

434 U.S. 412 (1978)

Cippolone v. Ligget

Cede » 112

t Group, Inc.

5.Ct. 2608 (

Cleveland Board of Education v. Loudermill,

4/0 U.S. 3532 (1985)

Coleman v. Thompson,

U de , 111 S.Ct. 2546 (1991)

Commissioner, I.N.S. v. Jean,

496 U.S. 154 (1990)

County of Riverside v. Rivera,

477 U.S. 561 (1986) £1,

Edmonson v. Leesville Concrete Co.,

U ede — RAL Sots Gert CAPRA)

Evans v. Jeff D., 477 U.S. 717 (1986)

F.D.I.C. v. Moitie, 452 U.S. 394 (1981)

Federal Land Bank of Jackson v. Federal

Intermediate Credit Bank of Jackson,

128 F.R.D. 182 (SD,Miss,1989)

Felder v. Casey, 487 U.S. 131 (1988)

Ferri v. Ackerman, 444 U.S. 193 (1980)

Fidelity Federal Savings and Loan Ass'n

v. De La Cuesta,

458 U.S. 141 (1982)

Fox and Associates Co.,L.P.A. v. Purdon,

44 Ohio St.3d 69 (1989)

Management Ass'n,

Gade v. Solid Wastes

Ct. 2374 (1992) 17,20,25

Ct. 2/20 (1991) 43

Vass si} 2

Gentile v. State Bar of Nevada,

ie . Rae Oe

Golden State Transit

Authority v. City

of Los Angeles,

493 U.S. 103 (1989) 30,31

Hensley v. Eckerhart,

Gol U.S. 424 (1983) 22,30

Howard ». Lyons, 360

U.S. 593 (1959) 35

In Re American Airlines, Inc.,

9/2 F.2d 605 (CAS,

In Re Finklestein,

1992) 22

901 F.2d 1560 (CA11,1990) 51

In Re Kirsh, 973 F.2d 1454 (CA9,1992) 48

In Re Ruffalo, 390 U.S. 544 (1968) 51

In Re San Juan DuPont Plaza Hotel

Fire Litigation,

768 F. Supp. 912 (D,PR,1991) 34

In Re Snyder, 470 U.S. 634 (1985) 23

Independent Ass'n of Flight Attendants

v. Zipes, 401 U.S. 754 (1989) 37

International Paper Co. v. Ouellette,

4/9 U.S. 481 (1987) 29

Irwin v. Veterans Acministration,

498 U.S. , 111 S.Ct. 453 (1990) 37

Kay v. Ehrler,

he FP

Ct. 1435 (1991) 21,30

Xvi

Krause v. Rhodes,

640 F.2d 214 (CA6,1981) 18,34

Link v. Wabash Railroad Co.,

3/0 U.S. 626 (1962) 37

Litton Financial Printing Division v.

( U.S. _, 111 S.Ct. 2215 (1991) 24

Longshoremen v. Davis, 476 U.S. 390 (1986) 17

Lucky Goldstar v. International

Manufacturing Sales Co.,

636 F. Supp. 1059 (ND,111,1986) 27

Marshall v. Jericho, Inc.,

446 U.S. 238 (1980) 42

Mathews v. Eldridge,

424 U.S. 319 (1976) 45,4/7

McColluch v. Maryland,

1/ U.S. (4 Wheat) 316 (1819) 24

McGill v. Ottawa, |

7/3 F. Supp. 1473 (D,Kan,1991) 34

McKenzie Construction Co. v. Maynard,

758 F.2d 97 (CA3,1985) 34,45

Middlesex Ethics Committee v. Garden

State Bar Ass'n, 45/7 U.S. 423 (1982) 23

Miller v. Fenton, 474 U.S. 104 (1985) 22

New York Gaslight Club, Inc. v. Carey,

44/ U.S. 54 (1980) 21

Newman v. Piggie Park Enterprises, Inc.,

390 U.S. 400 (1968) 414,37

Pacific Gas and Electric Co. v. State

Energy Resource Cons. Dev. Comm.,

461 U.S. 190 (1983) 21

ee ee eee

XVii

Parklane Hosiery Co. v. Shore,

439 U.S. 322 (1979) 49

Pennsylvania v. Delaware Valley Citizens

Council For Clean Air

L768 U.S. 546 (1986) 30

Pennsylvania v. Delaware Valley Citizens

Council For Clean Air, is

483 U.S. /11 (1987) 23, 30cae

Pierce v. Underwood, 487 U.S. 552 (1987) 22

Rosquist v. Soo Line RR,

692 F.2d 1107 (CA/,1982) 34

Salve Regina College v. Russell,

U.S. - BAe SeGks Lan? (1991) 24

San Diego Buidling Trades Council v.

Garman, 359 U.S. 236 (1959) 17,28

Securities Industry v. Clarke,

898 F.2d 318 (CA/,1989) 51

Sperry v. Florida, 373 U.S. 379 (1963) 19

Sprague v. Titonic National Bank,

307 U.S. 161 (1939) 21,22

Supreme Court of New Hampshire v. Piper,

4/0 U.S. 274 (1985) 45

Suter v. Artist M., |

‘e.g , 112 S.Ct. 1360 (1992) 31

Venegas v. Mitchell,

495 U.S. 82 (1990) 13,19,23,29,33,20

Walitalo v. Llacocco,

968 F.2d 741 (CA8,1992) 34

Wayte v. United States,

4/0 U.S. 598 (1985) 42

XVili

Weinberger v. Great Northern Nekoosa Corp

925 F.2d 518 (CA1,1991)

West v. Atkins, 487 U.S. 42 (1988)

Westfall v. Ervin, 484 U.S. 292 (1988)

Wilder v. Virginia Hospital Ass'n,

496 U.S. 498 (1990)

Willy v. Coastal Corp.,

Cups , BAe OsUt. 1076 (1992)

Wisconsin Public Intervenor v. Mortier,

U.S. , i111 5.Ct. 2676 (1991)

Zauderer v. Office of Disciplinary

Counsel, Ohio Supreme Court,

471 U.S. 626 (1985) 41,42,

CONSTITUTIONAL PROVISIONS

Supremacy Clause, Art. VI, Cl. 2

Fourteenth Amendment, Sec. 1

STATUTES

42 U.S.C. §1983 3,4,25,26,29, 32, 36,

42 U.S.C. §1988 6512.36.29 ,80s 004 0%+

RULES

Ohio's Disciplinary Rule 2-106 14,18

Ohio's Disciplinary Rule 9-106(B)(4)

Local Federal Court Rule 2.09 (now 1:5.2)

U.S. Supreme Court Rule 10.1(c)

ee |

= J

Supreme Court of the United States

October Term, 1992

SANFORD J. BERGER, et al.

Petitioners

CUYAHOGA COUNTY BAR ASS'N

Respondent

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of Ohio

Sanford J. Berger and Robert M. Fertel

petition for a writ of certiorari to review

an Order of the Supreme Court of Ohio filed

on September 2, 1992, which concurred in the

findings and recommendations of its Board of

Commissioners on Grievances and Discipline,

(Board), filed on May 7, 1992 whereby the

respondents were suspended from the practice

of law in Ohio for a period of one year plus

being ordered to pay the costs of the discip-

linary proceedings in the amount of $2,117.92.

OPINIONS BELOW

The Opinion of the Supreme Court of Ohio

was filed on September 2, 1992, and appears

in the Appendix at A26-A31.

The FINDINGS OF FACT, CONCLUSIONS OF LAW,

AND RECOMMENDATIONS of the Board, filed on

May 7, 1992, are found in the Appendix at

JURISDICTION

The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. §1257(3). The Opinion

below was entered on September 2, 1992.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

(All appearing in Appendix)

The Supremacy Clause, Article VI, Clause 2,

of the United States Constitution. (A32)

The Fourteenth Amendment, Section 1, of the

United States Constitution. (A32)

42 U.S.C. §1988. (A33)

Ohio Supreme Court's Code of Professional

Responsibility.

DR2-106 (A) and (B). (A34)

DR9-102(B)(4). (A35)

Ohio Supreme Court's Rules for the Government

Eee

of the Bar.

Rule V, Section 11(F)(1). (A36)

STATEMENT OF THE CASE

INCLUDING

THE RAISING OF THE FEDERAL QUESTIONS

Berger and Fertel were licensed to prac-

tice law bythe state of Ohio in 1952 and 1972

respectively, and admitted to practice in

federal court in 1963 and 1974 respectively.

During March, 1981, they associated, and had

unUlemished professional records until 3/7/89.

Ours is a two-man office with only a type-

writer and no help, and since our association

we have specialized in federal civil rights

suits,pursuait to 42 U.S.C. §1983. Together,

we have presented 14 appeals or cross-appeals

to this Court at our own expense. Our first

civil rights appeal, which was accepted by

this Court, was Cleveland Board of Education

v. Loudermill, 470 U.S. 532 (1985).

In 1983, our success in the Sixth Circuit

decision in Loudermill v. Cleveland Board of

Education, 721 F.2d 550 (CA6,1983), brought a

Daniel Gurish (Gurish) to our office with a

$1983 case that had been prepared by another

attorney; summary judgment had been granted

against him, and he asked if we would take an

appeal to the Sixth Circuit Court of Appeals.

Gurish had been a Corrections Officer who had

been discharged for beating a feeble-minded

inmate assigned to his care, and then cover-

ing up the beating in his Duty Report. As

such, the possibilities of his succeeding at

any possible future trial were exceedingly

remote and speculative.

We explained to Gurish that appeals cost

money; cannot be taken on a contingency basis,

and that we charged $200 an hour. Assuring us

that he had resources for the cost of the

appeal, we then appealed to the Sixth Circuit

and the matter was reversed and remanded.

Upon remand, a second Summary judgment was

granted after lengthy opposition, and a sec-

ond appeal had to be taken wherein we were

again successful.

At that point in time, Gurish owed us

$40,000 less $2,500 he had given us. We then

entered into a 50%-50% contingent fee con-

tract for trial representation.

The case went to trial on 7/28/88; and

after five days of trial, the jury returned a

surprise verdict of $100,000. The trial court

then entered its judgment for $100,000 plus

reasonable attorney fees. Our filed Motion

for an Award of Attorney Fees, with suppor-

ting schedules, asked for $191,000 thereafter.

After a one-day hearing before a Magistrate

on 2/3/89 (wherein our expert testified as to

the reasonableness of our requested fee), the

County made a package offer of $130,000 on or

about 2/9/89 to settle both the appealed judg-

ment anu our attorney fees claims -- which

offer was unacceptable to us, but which we

were ethically obliged to convey to Gurish.

Representing that he was in dire need of

money and could not wait for the appealed judg-

ment to be decided, Gurish demanded that we

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of us, and the other for $30,000 made payable

to us alone.

As we were soon to discover, Gurish wanted

to make sure the money was locked up before he

-enezged on our agreement, and therefore made

no beforehand complaint to either the involved

federal judge or us that the agreement was not

going to be honored by him.

Shortly thereafter, Gurish discharged us

and retained new counsel who filed a dubious

"Motion To Cease And Desist" with the federal

trial court wherein he now claimed that he was

due $100,000 of the settlement fund and the

,000 was our award of attorney fees. We

successfully opposec that Motion, but the

trial court refused to intervene further on

the basis that it ne longer had jurisdiction

as the case had been previously marked "Set-

tled and Dismissed." Gurish took no appeal of

the dismissal of his Motion to the Sixth Cir-

cuit Court of Appeals.

At this point, it is necessary to note that

fe)

the involved federal district court has never

adopted Ohio's Code of Professional Responsi-

bility, nor delegated its exclusive disciplin-

ary authority (to discipline federal practi-

tioners) to the state of Ohio. Rather, it has

its own disciplinary procedures under then

Local Rule 2.09 (now 1:5.2), which both pro-

vide, in part, as follows:

Any member of the Bar of the Court may for good

cause shown, and after having been given the oppor-

tunity to be heard, be disbarred, suspended from

practice for a definite time, reprimanded, or sub-

jected to such other discipline as the Court may

deem proper. Any person aggrieved by the conduct of

any person practicing before this Court (othc than

@ pro se litigant) may file a grievance with the

Clerk.

On 3/7/89, instead of filing a disciplinary

complaint against us with the federal court,

Gurish opted to file a disciplinary complaint

against Berger with the Cuyahoga County Bar

Ass'n (Bar). Therein, he claimed that the

settlement fund division was to be $75,000 to

him and $55,000 to us, and that Berger was:

“Shaking him down!" ... "Strong arming him!

and "I'm being raped by my attorney, and ques-

ie ererncrrnaeerianenmemaeenntiatiiiiiiial

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tion whether he really has my best interest at

hart [sic].

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The Bar s 50 member Grievance Committe

mt,

then conducted an Investigatory Hearing o

Rereer. and ultimately the Bar filed a Com-

plaint against both of us with the Board of

rt)

Commissioners on Grievances and Discipline o

the Supreme Court of Ohio (Board) wherein we

were charged with "charging an excessive fee,

"failing to pay to a client funds which the

client is entitled to receive,’ and two other

charges.

During June, 1989, Gurish sued us in state

court and now claimed that he was entitled to

there

19)

$85,000 of the settlement fund. Wt!

is normally a wait of four years for a civil

case to be called; this case was partially

heard on 5/30/90, and the state trial judge

then pushed both parties t¢ settle. The terms

of said settlement were that Gurish was to

receive $65,000; we were to dismiss Gurish and

his new attorney as defendants in a federal

Sulit we had filed on 1/23/90; Gurish was to

dismiss his complaint against us, and the

terms of the settlement were to be kept con-

fidential. After receipt of Gurish's letter.

the Bar filed an Amended Complaint with a new

Count claiming: "Failure to assist in the in-

vestigation of a Complaint."

As mentioned, on 1/23/90, we filed a fed-

eral action seeking declaratory and injunctive

relief against the Bar, the Board, and the

Ohio Supreme Court, as well as monetary claims

against the Bar, Gurish and his new lawyer.

That suit was ultimately dismissed, appealed

to the Sixth Circuit, argued on 9/25/92, and

decision is awaited at this time. That decis-

ion will probably also find its way to this

Court.

There was then a hearing before a three-man

Panel from the Board on 4/19/91: the Board

approved the Panel's FINDINGS OF FACT, CONCLU-

SIONS OF LAW AND RECOMMENDATIONS more than a

year later when they were certified to the

Ohio Supreme Court on 5/7/92 (A7-A23), and by

Order of the Ohio Supreme Court on 9/2/92

(A26-A31), we were both suspended for one year

plus paying costs.

Note however, par. 19 of the Board Panel's

Report, at Al/7, wherein the Panel discusses

the federal suit for no reason other than to

prejudice us with the entire Board and the

Ohio Supreme Court.

It should also be noted that Berger (as a

judicial candidate) brought a federal civil

rights suit against the Ohio Supreme Court in

1984 wherein he challenged the "gagging" of

judicial candidates. The favorable language in

the resultant Opinion, 598 F. Supp. 69

(SD,Ohi0,1984), now controls judicial cam-

paigns in Ohio. Currently, Berger was nomin-

ated as a candidate for Judge of the Court of

Appeals for Cuyahoga County, Ohio on 6/2/92.

After his suspension, and although it was not

a part of their delegated authority, the Bar

filed a Protest against Berger with the County

Board of Elections on 9/14/92, Berger's name

was stricken from the ballot on 9/17/92, and

the Bar-endorsed candidate took the office by

default on 11/3/92.

We initially raised our federal constitu-

tional and statutory claims, orally and in

writing, with the Bar's Grievance Committee,

and the Bar never responded.

On 11/7/90, we filed our Motion To Dismiss

the disciplinary Complaint against us for lack

of jurisdiction based upon three theories: (1)

Federal preemption; (2) Supremacy Clause pro-

hibition, and federal official immunity. That

Motion was overruled by Fred Oremus, the Board

Chairman, on 1/4/91, (A1-A2). His ENTRY hol-

ding, in effect, that the jurisdiction of the

state of Ohio to discipline its licensed law-

yers for claimed federal court misconduct was

“beyond question," and that a hearing panel

would determine the reasonableness of our

requested fee by applying the law "[i]ncluding

the terms of 42 USC §1988 as interpreted by

the U.S. Supreme Court. Venegas v. Mitchell,

110 S.Ct. 1679(1990)."

On 2/8/91, we filed a second Motion To

Dismiss the Amended Complaint with the Board.

On page 6, we claimed that there was no U.S.

Supreme Court precedent that our requested fee

was unreasonable; and accordingly, we could

not be disciplined for charging a ‘clearly

excessive fee." On page 8, we claimed that (as

non-Bar members) we were the victims of selec-

tive prosecution, and attached Exhibits that

disclosed that active Bar members escaped Bar

disciplinary proceedings. (See comment at

A5-A6).

This second Motion To Dismiss was overruled

by the Panel Chairman on 3/29/91. (A3-A6). It

was specifically held that "[t]he Ohio Supreme

Court may sanction an Ohio lawyer for miscon-

duct that grows out of federal court action."

(A5). The 3/29/91 Entry then goes on to say

that the state of Ohio has the right to review

a federal court proceeding and apply federal

standards rather than their ow n deter-

mining if there has been a violation of hic

ethical standards y conduct occurring in a

federal court proceeding ae

On 4/11 l we file our \nswer to. the

Amended Complaint and raised our federal con-

Stitutional and statutoryclaims as Affirmative

Defe

Stat

that

denc

tors

nses. Also raised at the 4/19/91 hearing.

ollowing the Panel hearing of 4/19/91, we

utory defenses. Therein, we also claime

e regarding the eight (8) mandatory fac-

- . ‘ t Nps Nr f/f \ 49/7 Cc : °

of Ohio’ s DR2-106(B), at A34-A35, which

would give rise to the conclusion that DR2-

106(A) had been violated with respect to our

having charged a clearly excessive fee.

fee was consistent with the purposes of §1988;

was

). We further claimed that our requested

reasonable under the 8 factors of Ohio's

DR2-106(B), and that the charge of failing to

-_—

Sa)

-E ] c eT a : : ;

disburse funds "|w]lhich the client is entitled

to receive."|], Ohio's DR9-102(B)(4), (A35),

was inconsistent with Ohio law and federal

On 5/11/92, the Ohio Supreme Court issued

permitting us to file

—

—ZI

ae)

—/

Objections thereto by 6/1/92. In response, we

filed our 5/28/92 Motion To Abstain or in the

alternative Motion For Extension Of Time To

ections and Brief. Therein, we asked

the Ohio Supreme Court, as the final decision-

maker, to rule upon our prior 11/7/90 and

2/8/91 Motions To Dismiss the Complaints and

Amended Complaints filed against us by the Bar

with the Board, and to refrain from acting

until our substantial federal constitutional

and statutory claims were decided by the Sixth

Circuit Court of Appeals. Our alternative

Motion was for the purpose of providing us

with a meaningful opportunity to respond to

the charges against us.

Said requests for rulings (regarding our

federal constitutional and Statutory preemp-

tion claims and the Court's jurisdiction) were

then repeated in our 6/17/92 Response Brief to

the Bar's Brief Opposing our Motion To Abstain.

Both of our Motions were then denied by the

Ohio Supreme Court on 6/24/92, (A24), with no

ruling on our two Motions To Dismiss.

On 6/26/92, we filed our Motion To File

Additional Objections Instanter, and tendered

those Additional Objections. Therein, we again

noted that we had presented prior Objections

in our two Motions To Dismiss; our Post-Panel

Hearing Brief of 5/18/91, and our 5/28/92 and

6/17/92 pleadings before the Ohio Supreme

Court, and requested oral argument "[on] the

complex legal issues involved." The first sen-

tence of those Additional Objections said:

For wnatever reasons, the May 7, 1992 Findings of

Fact and Conclusions of Law of the Board of Commis-

Sioners on Grievances and Discipline of the Supreme

Court of Ohio are one-sided, misleading, slanted,

erroneous—and replete with errors.

Those Additional Objections comprised nine

(9) pages of detail regarding the claimed

eee

biasness of the Board's Report. Additionally,

we again raised federal preemption of the type

involved in San Diego Building Trades Council

v. Garman, 359 U.S. 236 (1959); advised of

this Court's aecision in Gade v. National

Solid Waste Management Ass'n, _U.S._,__, 112

92), concerning the preemp-

8.Gt. 2376,2366 (3

tion of federal standards over state standards

and that it is mandatory for a state Supreme

Court to decide a Garman-type preemption claim

when raised, and that such preemption renders

a state court judgment void ab initio as set

down in Longshoremen v. Davis, 4/6 U.S. 390,

392 (1986).

On 7/30/92, our Motion To File Additional

Objections Instanter was denied, (A25), even

though said Motion was unopposed.

Since the commencement of the attack upon

us by the state of Ohio in March, 1983, we

have expended more than 2,000 hours in attemp-

ting to defend ourselves; we have not been

able to undertake requested representations of

victims of “-imed civil rights violations,

and have been unable to perfect appeals of

meritorious civil rights cases to the Sixth

Circuit. As such, the current suspension is

almost after-the-fact, as the state has vir-

tually put us out of the business of civil

rights litigation for the 3% years preceding

the current suspension.

A careful reading of the Board's Findings,

etc. (A7-A23), will disclose that there is no

enumeration of the required federal factors

(such as set forth in Krause v. Rhodes, 640

F.2d 214,220 (CA6,1981) ) or the required

State factors (as contained in DR2-106(B))

that would give rise to the conclusion that a

"clearly excessive fee'

had been charged.

REASONS FOR GRANTING THE WRIT

1.and 2. A STATE CANNOT VENTURE INTO A FOREIGN

JURISDICTION FOR THE PURPOSE OF DISCIPLINING

ONE OF ITS LAWYERS ON THE BASIS OF THE STATE'S

BELIEF THAT SAID LAWYER ENGAGED IN MISCONDUCT

IN THAT FOREIGN JURISDICTION.

Insofar as the federal court system is con-

cerned, it is a foreign jurisdiction that the

state of Ohio dare not trespass into.

In Venegas v. Mitchell, 495 U.S. 82,90

(1990), the question as to the extent of the

federal courts' authority to supervise contin-

gent fees was left open, but no mention was

made as to state supervision of contingent fee

contracts in a federal proceeding. As pre-

viously discussed on pp.13-14, supra, Ohio

took the position that it could review a prior

federal court determination. (Al and A3).

However, such state conduct constitutes the

type of review of a federal court determina-

tion that was condemned in Sperry v. Florida,

373 U.S. 379,385 (1963). At p.42 of Sperry, it

}

land

(rr

nerearter,

‘

rc?

a federal court proceeding:

A lone line of cases by his Court discus-

ses federal field preemption; the high Con-

gressiona priority of the federal civil

rights statutory scheme, and the need to in-

uce private lawyers to obtain judicial enfor-

cement of the federal civil rights laws. See

Pacific Gas & Electric Co. Vv. State Energy

Resource, etc. . 4 t l t owe LyYU.Z2U3 \ 1983 - Kay

v. Ehrler, _U.S._,_, 111 S.Ct. 1435,1437

1991); Newman v. Piggie Park Enterprises, J390V

»S. 400,402 (1968); New York Gaslight Club,

nc. v. Carey, 4 Dea 4,63 (1980); County

of Riverside v. Rivera, +/ i U.o. 961,577

1986), and Pennsylvania v. Delaware Citizens

sounc) 1 For Clean Air, 485 U.o. 11.720 1987

In our case, the nvolved federal judge

refuse to intervene after the case had been

arked as "Settle anc Dist ssed,' but an at-

torneyv fee dispute between an attorney and his

client is collateral to the merits of the

Triconic

Nation-

al Bank, 307 U.S. 161,170 (1939), so that he

did have jurisdiction even after the final

entry. Willy v. Coastal Corp., _ Urew 5»

li2 S.Ct. 1076,1080 (1992). He should have

helped us, and avoided all that has happened.

3. THE AUTHORITY AND DOMAIN OF A FEDERAL DIS-

TRICT JUDGE OVER HIS COURTROOM AND THE PRO-

CEEDINGS THEREIN ARE SACROSANCT, AND A STATE

MAY NOT SEAT ITSELF UPON HIS BENCH, IN HIS

ABSENCE, TO REVIEW THE CONDUCT OF LAWYERS WHO

HAD PREVIOUSLY APPEARED BEFORE HIM.

The ethical standards adopted, and _ how

applied, are matters of federal law. In Re

American Airlines, Inc., 972 F.2d 605,610

(CA5,1992). It is also the involved judge who

ls in the best position to resolve issues that

emanate from litigation that he has been in-

volved in. Pierce vy. Underwood, 487 U.S.

952,559 (1988), Citing Miller v. Fenton, 474

U.S. 104,114 (1985); Hensley v. Eckerhart, 461

U.S. 424,437 (1983) and Commissioner, I.N.S.

v. Jean, 496 U.S. 154, » 110 S.Ct. 2316,2320

(1990).

Although Middlesex Ethics Comm. v. Garden

State Bar Ass'n, 457 U.S. 423,432 (1982), held

that a staté has an important interest in the

regulation of its attorneys; and such holding

was based on the power of the state Supreme

Court to establish ethical standards, never-

theless, the ethical standards for federal

court lawyers are matters of federal law. In

Re Snyder, 472 U.S. 634,645 n.6 (1985).

4. IN THE SENSE OF MINDING ONE'S OWN BUSINESS:

IT IS THE BUSINESS OF A FEDERAL COURT TO APPLY

FEDERAL LAW AND STANDARDS IN DETERMINING THE

REASONABLENESS OF THE FEE CHARGED BY A SUC-

CESSFUL CIVIL RIGHTS LAWYER IN A FEDERAL PRO-

CEEDING, WHILE IT IS THE BUSINESS OF A STATE

TO DETERMINE THE REASONABLENESS OF A LAWYER'S

FEE IN A STATE PROCEEDING BASED UPON STATE LAW

AND STANDARDS.

The interests of federalism are not suppor-

ted when the outcome of a federal claim de-

pends upon whether it is made by a state or

federal court. Felder v. Casey, 487 U.S. 131,

151 (1988). If Congress did not intend to

assign to state courts the role of defining

and characterizing the essentials of a federal

cause of action, Felder v. Casey, 142, then

Congress surely did not intend to assign to

state courts the determination as to what con-

stitutes a reasonable fee in a federal civil

rights proceeding.

Permitting state regulation herein risks

the development of conflicting principles con-

cerning what constitutes a reasonable fee,

Litton Financial Printing Division v. NLRB,

Weds 5 5 SEL. S.Ct. 2585, 2929 (1991), and

will create a dual enforcement scheme wherein

the substantive law depends upon the choice of

forum. Salve Regina College v. Russell. U.

a.» #44 SCE. 1217,1222 (1991).

Cippolone v. Liggett Group, Inc., Uses %

—_» 112 S.Ct. 2608,2617 (1992) (plurality op-

inion) stated that since McColloch v. Maryland

17 U.S. (4 Wheat) 316 (1819), any state law

—_ewwO OEE ————

that conflicts with federal law is "without

effect. In that light, any state attorney

ethical standards that are contrary to federal

attorney ethical standards should also be con-

sidered to be “without effect."

5. A STATE MAY NOT THWART A FEDERAL STATUTORY

SCHEME BY IMMOBILIZING THOSE FEDERAL ACTORS

WHO WOULD SET THAT FEDERAL SCHEME INTO MOTION.

Felder v. Casey, supra, 138, discussed

whether a state notice-of-claim statute was

consistent with the goals of $1983, or if it

stood as an obstacle to the full accomplish-

ment of the purposes and objectives of the

federal Act, so as to be preempted thereby.

Query then. Is the state action herein con-

sistent with the goals of $1988? For example,

in Venegas v. Mitchell, supra, 89, the con-

tingent fee contract was upheld on the basis

that it was consistent with the Congressional

purposes of §1988.

Gade v. National Solid, etc., supra, 2386,

found the state activity therein to be pre-

empted, as there was an impermissible effect

upon a federal statutory policy. Moreover,

the determination of the "objective reason-

ableness" o* an attorney's pre-filing conduct

(for the purposes of sanctions under F.R.C.P.

11) creates a real risk of detering the fil-

ing of meritorious cases. Business Guides,

Inc. v. Chromatic Communications Enterprises,

Inc., U.S. , , 111 S.Ct. 922,941 (1991)

(Kennedy, J., dissenting). Herein, by per-

mitting after-the-fact state regulation, also

creates a real risk of deterring the filing

of meritorious §1983 actions.

In Business Guides supra 941, Justice

> > 3

Kennedy recognized that federal fee-shifting

Statutes reflect policy choices by Congress

regarding the extent to which certain types

of litigation should be encouraged or dis-

couraged. Also, Chambers v. Nasco, Inc.,

U.S. yy 111 S.Ct. 2123,2137 (1991), citing

Alyska Pipeline Services, Inc. v. Wilderness

society, 421 U.S. 240, 260-263 (1975).

As noted in Justice Blackmun's dissent in

Burlington v. Dague, _U.S. , , 112 S.Ct.

2638,2644 (1992):

Preventing attorneys who bring actions

under fee-shifting statutes from receiving

fully compensatory fees will harm far more

than the legal profession. Congress inten-

ded the fee-shifting statutes to serve as

an integral enforcement mechanism in a

variety of federal statutes -- most not-

ably, civil rights and environmental

statutes

Also, Justice O'Connor's dissent, at 2648.

We were also found guilty of failing to

disburse funds that a client was clearly

"entitled to," but that is inconsistent with

federal standards, as Gurish wasn't "entitled

to'' the disputed funds, as our “retaining

lien" was ethically justified due to his re-

neging on our deal. Federal Land Bank of

Jackson v. Federal Intermediate Credit Bank

of Jackson, 128 FRD 182,186 (SD,Miss,1989)

and Lucky Goldstar Int'l Mfg. Sales Co., 636

mao |

F. Supp. 1059,1064 (ND,111,1986). Nor was it

possible to cash a check with three payees

thereon when one refused to endorse.

6. A STATE MAY NOT CROSS THE BORDER SEPARA-

TING IT FROM FEDERAL TERRITORY (BASED UPON

THE STATE'S OWN DECISION THAT IT CAN CROSS),

AND ANY INTRUSION BY THE STATE INTO SUCH OFF-

LIMITS TERRITORY, WITHOUT RIGHT, JUSTIFICA-

TION OR INVITATION, IS ILLEGAL AND VOID.

In San Diego Building Trades Council v.

Garman, supra, 247, it was held that any

state setion that has the potential for ZOov-

erning federal policy is preempted, and there

is a conflict with federal policy when two

law-making sources are permitted to govern

the same conduct. Also, Brown v. Hotel

Employees, 468 U.S. 491,502 (1984).

7. "A LAWYER'S TIME AND ADVICE ARE HIS STOCK

IN TRADE." (ABRAHAM LINCOLN), AND WHEN A

CLIENT WAIVES HIS RIGHT TO HAVE SOMEONE ELSE

PAY FOR HIS LAWYER'S SERVICES TO HIM, THEN HE

MUST REASONABLY PRESUME THAT HE IS PERSONALLY

RESPONSIBLE FOR THE DEBT OWING HIS LAWYER.

It is illogical that Congress could have

possibly intended that the decision as to

whether or not a successful lawyer (pursuant

to §1988) should get a reasonable fee for his

services is totally within the discretion of

a §1983 client who inevitably becomes greedy,

ungrateful, devious and treacherous when he

no longer needs the services of his lawyer.

Since §1988 is silent as to the rights of

a successful federal civil rights lawyer,

this Court must be guided by the goals and

policies of §1988 in making such determina-

tion. International Paper Co. v. Ouellette,

479 U.S. 481,493 (1987).

Evans v. Jeff D., 475 U.S. 717,729 (1986),

held that a §1983 client can bargain away his

attorney's fees as a guid pro quo for relief

that was equal or greater than he would have

obtained at trial. But, we succeeded on two

pre-trial appeals and at trial.

In Venegas v. Mitchell, 85, an award of a

reasonable fee had been made, and the issue

was whether a contingent fee contract in

excess of the award could be enforced. But

our client aborted our right to have the

federal district court determine the reason-

able value of our services.

Since neither of the above two cases con-

trol our situation, it is our position that

we are the alter ego of the "prevailing party

language of §1988, and have vested rights

thereunder independent of any rights of the

client.

It has been repeatedly said that Congress,

by enacting §1988, determined that there must

be an inducement to attract private counsel,

and that motivating inducement is supposed to

be a "guaranteed" reasonable fee. Hensley v.

Eckerhart, supra, Blum v. Stetson, 465 U.S.

886,897 (1984), County of Riverside v. Rivera

supra, Pennsylvania v. Delaware Valley, etc.,

supra, Blanchard v. Bergeron, 489 U.S. 87,96

(1989), and Kay v. Ehrler, supra.

As to vested rights, a federal statute can

contain explicit rights, as well as implicit

rights. Golden State Transit Authority v.

aa cnceaecniiaiacinaesiaimiaiiniiaiiaditeiaiaiia

City of Los Angeles, 493 U.S. 103,112 (1989).

The inquiry then, as to whether §1988 cre-

ates implicit statutory rights, is whether

the attorney's fee provision is intended to

benefit successful civil rights lawyers. If

the answer is "Yes," then the statute creates

enforceable rights, unless it reflects a mere

"congressional preference’ instead of a bind-

ing obligation, or unless the interest is

too vague and amorphous’ so that it is

"beyond the competence of the judiciary to

enforce." Wilder v. Virginia Hpospital Ass'n,

496 U.S. 498,509 (1990). It would seem then,

that the receipt of a reasonable attorney's

fee falls within the realm of a binding obli-

gation, rather than a mere "congressional

preference.’

As such, and unlike Suter v. Artist M.,

‘and its legislative history) contain suffic-

ient statutory guidance for the determination

of a reasonable attorney's fee. Nor can it be

said that the determination of a reasonable

fee for a successful §1983 lawyer is "too

vague and amorphous" so as to be "beyond the

competence of the judiciary to enforce."

8. WHEN SERVICES ARE RENDERED BY A PROFES-

SIONAL OR TRADESMAN, IT IS THEIR EXPECTANCY

THAT THEY ARE GOING TO BE PAID THE REASONABLE

VALUE OF THOSE SERVICES, AND THIS IS ESPE-

CIALLY TRUE WHEN THE GUARANTOR IS SUPPOSEDLY

THE UNITED STATES CONGRESS.

Same argument as 7, supra.

9. A SUCCESSFUL §1983 LAWYER IS ENTITLED TO

RECEIVE THE REASONABLE VALUE OF HIS SERVICES

UNDER §1988, AND A CONTINGENT FEE CONTRACT IS

NON-CONTROLLING WHEN THE CLIENT PREVENTS HIS

LAWYER FROM GETTING THAT FEE FROM THE DEFEN-

DANT.

Implicit in a federal civil rights lawyer's

contract with his client is the implied prom-

ise by the client that if the lawyer is suc-

cessful in representing him then the lawyer

can unimpededly proceed to obtain additional

monies from the defendant.

Burlington v. Dague, 2643, invalidated

contingency multipliers on the basis that

they were inconsistent with this Court's

prior decisions rejecting the contingent fee

model for federal fee-shifting cases, citing

Venegas v. Mitchell, 87, and Blanchard v.

Bergeron, 96.

Our client's case was a dog of a case, as

it only involved a claim of a procedural Due

Process violation, where there is no presump-

tion of monetary damages flowing from the

deprivation thereof. Carey v. Piphus, 435

U.S. 247 (1978). As such, the case did not

involve a substantial chance of a large mon-

etary judgment which would have been suffi-

cient to find counsel -- absent an attorney

fee award. Pennsylvania v. Delaware, etc..

Several lower court non-civil rights cases

have held that the appropriate standard for

determining an attorney's fee from his client

is one of reasonableness under the circum-

ve ee > TT } — me ; + te ma 7.

stances; that such determination is not limi

a; + } f ’ + 3 . - ;

tec LO LIE A iL ¢ \ a f Ont @) ,ent [ € c contract:

+ } + th ; ; — 7, aniate , + } ms + 1 ‘

that - i¢ce¢ “wet.Geé Liiatl lon LoS not A ae / Ge" » <

} + - > + c 4 } +

wnen LNneé e€e€é aryTreeé ent Wa lage, DUT USL

ais¢ COnS1i. de! LNe Nes lrcumsSstance 5 Sul roundad1lns

\? ry ft na th Yr) g 5) ] + rn: ] 4

its CwmiLULLOCHIENL, aiid wnen an ai Cernatlve

: x :

, . 7 ¢ . . . . a

metnod S no expressiy dictated, the custon

) , + } tr } ; tT? + | ;

ary H rocedu S ios & Uoc sete LUCGCUCSLAL metn¢ UU

i , = o y ~ - 4 =

ate

McGill V . Uttawa, 4 rs Supp .14/3,1474

r) | ’ y Y y T>

v ye — ~ " > , + ]

(D,Kan,199]1 in Ke San Juar Dupont Plaza

. 2 os T Sos : 7 . “TTT Q1 O71

Hotel Fire Litigation, 056 F. Supp. 912,921

1). PR 901). mn an 7 a 6

\D,PR,1991); Rosquist v. Soo Line RR, 692

¥ ; 4 ae 44 ‘es 3 »>\ t

| X . ~ - -

r.2d 11¢ a a an Faw © i -P @ B- welnoderever Ve

- + -~+} -y } Cn rr c I i

Great Northerr YeKooSsSa Corp., 925 F.2¢ Las

ae 3. ; ti

c 4 7A 4 10 \s M few a . - . . ~ a. ,

£6 (CAL,LI99Y1); McKenzie Construction Co. V.

. miom m snol 7 ¢ C ] Q7? Cf) A aec " "eer

Maynard, 5 €£.2d Y/,100 (CA3,1985): Kraus

ea A Mk bet Bk

ss = a * } 1 AL _pawe Aan'A

Ve ANOCGCES, OGL Pe£2Q Zig, ZZl LUA Cert. Gen d

a ] C Q¢ 1QR4 Ty + Or nt] , 14 + }

4 OG Vewde oF@ he i O i ° YUSL recen LY WaildilaitC

. ~ es . .

~ _ < . | » jw

V e i£mwoOwuGO « eke ; +. eee Tis, & LWAO ed J .

ahnawmas a £ ieral ¢ + $e . mn? o ea > ae

wherein a redqera. L@C@*Snit ting Statute was

. - ° " ? ’

involved, and it was held that the lodestar

nethod is the only approach that is fair to

all of the parties, and assures that the

lawyer will not be over or under compensated.

10. IF FEDERAL CIVIL RIGHTS LAWYERS ARE WILL-

ING TO GAMBLE THEIR TIME AND MONEY IN PERFOR-

MING SERVICES THAT PAID GOVERNMENT LAWYERS

WOULD OTHERWISE BE PERFORMING; THEN SUCH PRI-

VATE LAWYERS, AT THE VERY LEAST, SHOULD BE

IMMUNE FROM HARRASSMENT BY STATE OFFICIALS

WHILE PERFORMING THOSE FEDERAL DUTIES.

In Barr v. Matteo, 360 U.S. 564 (1959) and

Howard v. Lyons, 360 U.S. 593,597 (1959), it

was held that the scope of absolute official

immunity afforded federal employees is a mat-

ter of federal law "[to] be formulated by the

Courts in the absence of legislative action

by Congress." Federal official immunity is

applicable whenever state action would

"[sjhackle the fearless, vigorous and effec-

tive administration of policies of the

(federal) government." Westfall v. Ervin, 484

U.S. 292,297 (1988).

The question then is whether lawyers for

federal civil rights plaintiffs can be con-

sidered as federal employees for official

immunity purposes? The answer follows.

In Edmonson v. Leesville Concrete Co.,

—L/

fond

Sond

2077,2086 (1991), it was

held that when the government delegates a

function to private parties, such function

retains its governmental character. It is the

function within the governmental system that

determines whether actions of private parties

can fairly be attributed to the government.

Ibid, at 2086, citing West v. Atkins, 487

Although the two cases above dealt with

the issue as to whether the conduct of pri-

vate parties could be considered as state

action" for purposes of a §1983 action, that

same rationale should also be applied in

determining whether our actions can be con-

sidered as actions of the federal government

for federal immunity purposes.

Prevailing federal civil rights plaintiffs

eo aw)

_ JI/

are Congress’ chosen instruments in the en-

forcement of the federal Civil Rights Act,

Newman v. Piggie Park Enterprises, Inc., 402;

Christianburg Garment Co. v. E.E.0.C., 434

U.S. 412,418 (1978) and Independent Associa-

tion of Flight Attendants v. Zipes, 491 U.S.

754,759 (1989), while an attorney acting or

failing to act, in furtherance of litigation

is the party's agent. Coleman v. Thompson,

U.S. , , 111 S.Ct. 2546,2566 (1991); Link

2 r\

v. Wabash Railroad Co., 370 UU.

626,634

(1962) and Irwin v. Veterans Administration,

498 U.S. ; » 111 S.Ct. 453,456 (1990).

Federal civil rights lawyers, in enforcing

the federal Civil Rights Act, are not only

benefitting their own interests, but also the

interests of society as a whole. County of

Riverside v. Rivera, 5/74.

Unlike the attorney in Ferri v. Ackerman,

444 U.S. 193,201 (1980) (which denied federal

official immunity to a federal public defen-

der from a state court malpractice action),

federal civil rights lawyers are not acting

in an adversarial relationship to the U.

government. Rather, they are advancing a

federal statutory policy that otherwise would

have to be furthered by paid federal govern-

ment attorneys -- or in other words, they are

the alter ego of federal government lawyers.

We deal in a fiction and close our eyes

to reality when we think that it is federal

civil rights plaintiffs who are enforcing the

federal Civil Rights Act. That concept is

tantamount to believing that it is Don King

who is doing the fighting in the ring. It is

necessary that one be beaten up with regular-

ity, however, before he can understand how

totally fallacious that concept really is.

A cursory re-examination of the facts in

this case will reveal that it is not our ex-

client who has done any bleeding or has any

scars to show for the battles that were, and

are still, being waged.

11. THE POLICE POWER OF STATE GOVERNMENTAL

ENTITIES CAN NEVER BE DELEGATED TO PRIVATE

CITIZENS OF THAT STATE.

Asked in another manner: can the city of

Cleveland, having a trained, experienced and

accountable police department in existence,

then delegate that identical police authority

to the Ku Klux Klan, the Hell's Angels or the

Black Panthers?

We both feel that we are able researchers;

but when we were unable to find any precedent

on this question, we paid an expert to re-

search Lexis and Westlaw, and he was unable

to find anything. The only conclusion then is

that the concept is so absurd that it has

never been tried by any governmental entity,

excepting the Ohio Supreme Court.

The closest we could come to an answer was

the case of Brookpark Entertainment, Inc. v.

Taft, 951 F.2d 710 (CA6,1991), wherein the

Ohio Department of Liquor Control had found a

liquor law violation by a "nudie bar," but it

also determined that the violation did not

warrant any sanctions being imposed for that

violation. However, Ohio had a referendum law

permitting the voters of the local precinct

wherein the liquor establishment was located

to revoke the bar's liquor license by refer-

endum. In holding that the referendum law

violated the Fourteenth Amendment's Due Proc-

ess Clause, the Sixth Circuit said this:

the Ohio law is not a valid delegation

of legislative power because it allows

voters to permanently close only those

setae t ee that bias hee ae

The concern is that the voters eer "gang

up' to drive out of business a seller of

liquor whom they disliked for reasons un-

related to any plausible public interest.

This is a distinct type of arbitrary ac-

tion that the requirement of fair proce-

dure is designed to prevent, or at least

make less likely to occur.

We remember only too well when Berger was

gang-jumped by approximately 50 lawyers at

the Bar's Roman Holiday Investigatory Hearing;

was denied the right to face or cross-examine

his accuser, and was then only allowed 3 min-

utes for his defense. This may possibly con-

stitute a "fair procedure" in the Bar's eyes,

but it was cowardly in our eyes.

Gangs are the gatherings of cowards and

bullies who endeavor to find the strength in

numbers that they lack individually -- and it

matters little whether they are costumed in

white robes with hoods, brown shirts, leather

motorcycle jackets or three-piece suits --

they attack and judge that which they choose

not to understand or tolerate, while delight-

ing in feeding-frenzies of abusiveness.

It is inherently wrong to delegate police

power to the irresponsible.

12. A PREDICTABLE DANGER OF SELECTIVE PROSE-

CUTION EXISTS WHEN A PRIVATE CLUB OF LAWYERS

IS DELEGATED THE RIGHT TO DETERMINE WHICH

LAWYERS MAY OR MAY NOT BE ALLOWED TO COMPETE

WITH THEM IN THE SAME GEOGRAPHIC AREA.

It is not uncommon for state bar associa-

tions to bring disciplinary actions against

unpopular or unorthodox attorneys. Zauderer

v. Disciplinary Counsel of the Ohio Supreme

Court, 471 U.S. 626,666-667 1n.106 (1985)

(Brennan, J., concurring in part and dissen-

ting in part).

As non-Bar members, we presented evidence

to the Board (A5-A6) that we were being sub-

jected to disparate treatment as contrasted

with active Bar members. But nowhere in the

Board's Findings, etc. (A/7-A23) is there any

mention as to why Bar members had immunity

from local Bar disciplinary proceedings.

Marshall v. Jericho, Inc., 446 U.S. 238,

249 (1980), held that prosecutional discre-

tion is not immunized from federal constitu-

tional Due Process scrutiny if it is moti-

vated by improper factors, or is otherwise

contrary to law.

Further, claims of selective prosecution

are to be determined pursuant to traditional

Equal Protection analysis. Wayte v. United

States, 470 U.S. 598,608 (1985).

As noted on page 18, supra, there was no

mention by either the Board or the Supreme

Court of Ohio as to what federal or state

standards had been violated that would give

rise to the conclusion that an "excessive fee'

had been charged, although Ohio's disciplin-

ary Code (DR2-106(B) ) has established eight

factors to be used as guidelines for the

determination of a reasonable attorney's fee.

Fox and Associates Co., L.P.A. v. Purdon, 44

Ohio St.3d 69,71 (1989).

As such, the failure to follow established

standards creates a situation wherein dis-

criminatory and selective enforcement can

occur. For example, vague standards create a

situation wherein discriminatory enforcement

is a real possibility. Gentile v. State Board

of Nevada, _U.S._, _, 111 S.Ct. 2720,2732

(1991). In other words, whether it be ignored

standards Or vague standards, selective

prosecution is calculated to happen.

13. THE TENETS OF FEDERAL CONSTITUTIONAL DUE

PROCESS ARE NON-EXISTANT WHEN AFFECTED PAR-

TIES ARE ARBITRARILY AND UNREASONABLY DENIED

eT I

A MEANINGFUL OPPORTUNITY TO RESPOND AND BE

HEARD, ESPECIALLY WHEN COUPLED WITH BEING

DENIED THE RIGHT TO A SUFFICIENTLY INFORMED

DECISION-MAKER.

In Zauderer v. Office of Disciplinary

Counsel, Ohio Supreme Court, supra, it was

determined that the Ohio Supreme Court's

disciplinary Rules appear to provide ample

Opportunity for an attorney to respond to the

Board of Commissioner's Recommendations.

However, a state staute or rule may be

held constitutionally invalid when it oper-

ates to deprive individuals of a protected

right, although its general validity is with-

out question. Boddie v. Connecticut, 401 U.S.

371,379 (1971).

Further, federal constitutionai Due Proc-

ess can be denied by a state law, on its face,

Or as applied. Barry v. Barchi, 443 U.S. 55,

66 (1979).

The overruling of our Motion For An Exten-

sion Of Time To File Objections (A24) coupled

with the denial of our Motion To File Addit-

ional Objections Instanter (A25) prevented us

from having a meaningful opportunity to res-

pond -- in violation of federal constitu-

tional Due Process.

Mathews v. Eldridge, 424 U.S. 319,335

(1976), set down three factors to be consid-

ered in determining the federal constitu-

tional Due Process sufficiency of state pro-

cedures.

The first factor is the private interest

involved. In that regard, the right to prac-

Supreme

Court of New Hampshire v. Piper, 470 U.S. 274

tice law is a "fundamental right.'

281 (1985).

The second factor is the risk of erroneous

deprivations pursuant to present procedures

and the decrease of the risk by use of sub-

stitute or additional procedures. In that

regard, McKenzie Construction Co. v. Maynard,

supra, held that a requested attorney's fee

may be “objectively unreasonable," but not so

"clearly excessive’ as to be subject to dis-

ciplinary sanctions, so that the affected

attorney is entitled to a determination in

accordance with the correct legal standards.

We were deprived of a "fundamental right" by

the total absence of any standards.

The third factor is the governmental in-

terest involved, including any additional

administrative ard fiscal burdens. In answer,

if the state had permitted the involved fed-

eral district court judge to make the initial

determination as to whether or not there had

been a violation of federal ethical standards

as was his right, such procedure would have

decreased (rather than increase) the adminis-

trative and fiscal expenses incurred by the

state of Ohio in these disciplinary procee-

dings. Moreover, there is no state interest

in disciplining federal civil rights lawyers,

who were involved in a federal civil rights

proceeding in a federal district court, when

their conduct was consistent with federal

substantive and/or ethical law, and any state

sanctions should be barred by the Supremacy

Clause of the U.S. Constitution.

Consequently, a consideration of the three

(3) factors set down in Mathews v. Eldridge,

above, leads to but one inescapable conclu-

sion; and that is, we were denied our federal

constitutional Due Process right to a mean-

ingful hearing when the initial determination

of our ethical conduct was determined by the

state of Ohio instead of the involved federal

judge.

Additionally, the mass of federal consti-

tutional and statutory law cited by us at

every stage of the disciplinary proceedings

was meaningless, as the decision-makers were

state law practitioners, not federal ory

tutional law practitioners.

14. A FEDERAL CIVIL RIGHTS LAWYER SHOULD NOT

HAVE TO UNDERGO THE RISKS, RIGORS AND EXPENSE

OF BRINGING A FEDERAL CIVIL RIGHTS SUIT TO A

SUCCESSFUL CULMINATION ONLY TO THEN HAVE TO

(ee re

SPEND MORE THAN 2,000 HOURS IN DEFENDING HIM-

SELF AGAINST AFTER-THE-FACT STATE ACTION |

(CONCERNING HIS FEDERAL ACTIVITIES) -- WHICH |

STATE ACTION IS CALCULATED TO, AND DOES,

DESTROY HIS REPUTATION, DEMEAN HIM PUBLICLY,

AND INJURE HIM IMMEASURABLY AND IRREPARABLY.

In Re Kirsch, 973 F.2d 1454,1461 (CA9,

1992), recently held that the Rules of Pro-

fessional Conduct were never intended to pro-

tect clients who wrong their lawyers. In our

case, our ex-client would never have dared to

file disciplinary charges against us with the

federal judge who heard his case and knew him

intimately.

In F.D.I.C. v. Moitie, 452 U.S. 394,398

(1981), it was held that the failure to ap-

peal from a judgment (overruling of Gurish's

Motion To Cease and Desist), page 7, supra,

provides res judicata and/or’ collateral

estoppel effect to any issue that was decided,

or could have been decided, by such judgment.

Moreover, mutuality of parties (the Bar

instead of Gurish) is not necessary for the

applicability of res judicata if the affected

party had a full and fair opportunity to lit-

igate the issue in a prior proceeding. See

Blonder-Tongue Laboratories v. University of

Illinois Foundation, 402 U.S. 313 (1971) and

Parklane Hosiery Co. v. Shore, 439 U.S. 322,

326 (1979).

As we have learned, when a federal civil

rights plaintiff has the option to file his

gripe with state disciplinary authorities,

then he has tremendous coercive power to not

only defeat his attorney's right to a reason-

able fee, but also finds himself as the bene-

ficiary of a windfall that he was never

entitled to.

15. A LAWYER WHO HAS ENGAGED IN FEDERAL COURT

CONDUCT THAT HAS NOT BEEN DECLARED IMPERMISS-

IBLE BY THE U.S. SUPREME COURT IS DENIED FED-

ERAL CONSTITUTIONAL DUE PROCESS, AS HE HAD NO

PRIOR NOTICE THAT SUCH CONDUCT COULD BE CON-

STRUED AS IMPERMISSIBLE BY THE SITUS STATE

WHEREIN SUCH FEDERAL COURT IS SITUATED.

In paragraph 23 of the Board's Findings,

etc. (A19-A20), the Board concluded, and the

Ohio Supreme Court agreed, that "[the] settle-

ment of Guris' federal claims resulted in a

fund of $130,000 held for the benefit of the

client. Venegas v. Mitchell, 110 S.Ct. 1679

(1990)."

However, as previously argued herein, the

division of that fund must not only further

the compensatory purposes of §1983, but must

also further the Congressional purpose of

1988 in attracting experienced and competent

counsel.

we have also shown that our situation was

distinguishable from that in Venegas v.

Mitchell, so that case is hardly controlling.

Accordingly, there was no prior precedent

from this Court that our requested fee was

contrary to §1988, so that the subsequent

disciplinary proceedings by the state of Ohio

ccnstituted a violation of our federal con-

—————

stitutional right to Due Process due to a

lack of prior notice that such conduct could

possibly be construed as wrongful. In_ Re

Ruffalo, 390 U.S. 544,554 (1968) (White, J.,

concurring). Also, In Re Finklestein, 901

F.2d 1560,1564 (CA11,1990); Securities

Industry v. Clarke, 898 F.2d 318,321 (CA/7,

1990), and Boettcher v. Hartford Insurance

Co., 927 F.2d 23,26 (CA1,1991).

——

CONCLUSION

As explained, there are numerous holes

that now exist in §1988 -- holes which the

Ohio Supreme Court has pushed us into -- and

holes which should be addressed and filled by

this Court if it is felt that a state should

not be allowed to effectively repeal the

existant federal civil rights legislation.

As such, it would seem that the questions

we have presented to this Court fit squarely

within this Court's Rule 10.1(c).

Because of all that has happened, and the

legal arguments offered as to why it never

should have happened, or again happen to some

other civil rights lawyers, it is respect-

fully urged that this petition for a writ of

certiorari be looked upon favorably.

Respectfully submitted,

BERGER & FERTEL

SANFORD J. BERGER, Fertel's Counsel of Record

ROBERT M. FERTEL, Berger's Counsel of Record

1836 Euclid Ave., Room 305

Cleveland, Ohio 44115-2234

Phone: (216) 781-5950

Lawyers for the Petitioners

BEFORE THE BOARD OF COMMISSIONERS

GRIEVANCES AND DISCIPLINE

THE SUPREME COURT OF OHIO

In re: () FILED JAN 4,1991

Complaint against: x CASE NO. 90-61

Sanford Berger and () sical ae

Robert M. Fertel, ()

RESPONDENTS, ()

NTR Y

Cuyahoga County Bar a ENTRY

Association, ()

RELATOR. ( )

The Respondent's motion to dismiss the

complaint filed by the Relator is hereby

overruled.

The Board's jurisdiction over the persons

of the Respondents as Ohio attorneys is be-

yond question. A hearing panel appointed in

this matter will weigh the evidence related

to the subject matter set forth in the com-

plaint and apply the law including the terms

of 42 USC §1988 as interpreted by the U.S.

Supreme Court. See Venegas v. Mitchell, 110

S.Ct. 1679(1990). Respondents are given until

January 25, 1991 to file their Answer.

This

January,

entry is dated this 4th day

1991 and this case is continued.

/:/ Frederick L. Oremus

FREDERICK L. OREMUS, ESQ.

Chairman, Board of Commissioners

on Grievances and Discipline of

[The Supreme Court of Ohio

/s/ JWM

per telephone authority

1-4-91

BEFORE THE BOARD OF COMMISSIONERS

GRIEVANCES AND DISCIPLINE

THE SUPREME COURT OF OHIO

In re: FILED MAR 29, 1991

Complaint against:

Sanford Berger and

Robert M. Fertel,

RESPONDENTS

Cuyahoga County Bar

Association

RELATOR.

Case No. 90-61

ENTRY

a a a ae ee

_—.

Fa a at ce de a a ei i

‘

—

Respondents have moved to dismiss the

amended complaint on the grounds that the

Board has no jurisdiction over the person of

the Respondents and the subject matter.

Respondents Sanford Berger and _ Robert

Fertel are attorneys at law admitted to prac-

tice in the state of Ohio. The law is quite

clear that the Supreme Court of Ohio has jur-

isdiction over its attorneys who are charged

with misconduct, Section 2(B)(1), Article IV,

Ohio Constitution, Cleveland Bar Association

v. Pleasant (1958), 167 Unio St 325, Melling

v. Stralka (1984), 12 Ohio St.3d 105,107. We

overrule the respondents’ motion to dismiss

for lack of jurisdiction over the person.

The subject matter of this proceeding is a

five count complaint charging two Ohio

attorneys with professional misconduct. It is

alleged that respondents' actions amounted to

charging an excessive fee and constituted

conduct involving dishonesty, fraud and de-

ceit and a refusal to pay their clients funds

that were due and owing. It is also alleged

in counts 4 and 5 that respondents did not

cooperate in the bar association's investiga-

tion and, in fact, obstructed it by entering

into a civil settlement in which the com-

plaining party agreed to drop his discipli-

nary complaint and give no further informa-

tion to disciplinary authorities. All these

allegations, if proven by clear and convin-

cing evidence, can demonstrate violations of

the Code of Professional Responsibility.

Therefore, this panel has jurisdiction over

the subject matter of these proceedings.

Although the underlying proceeding that is at

sina ddenaeiaieitieceeneiteal

issue in the excessive fee count is a federal

civil rights action, the Ohio Supreme Court

may sanction an Ohio lawyer for misconduct

that grows out of federal court action.

Therefore, the respondents' motion to dis-

miss on subject matter grounds is’ hereby

overruled. The panel notes that the amount of

reasonable attorney fees awarded a prevailing

party in a §1983 claim is within the powers

granted the U.S. District Court by Congress.

The panel will weigh the evidence on the mat-

ter of an excessive fee charged Gurish guided

by an assessment the district court reached

on what was a reasonable fee under the cir-

cumstances. 42 USC §1988. One factor that the

district court may have considered was the

amount of a contingency fee agreement.

Blanchard v. Bergeron, 109 S.Ct. 939, 946

(1989).

There is also pending a motion by the rel-

ator to strike material contained in the res-

pondents'’ brief concerning the actions of Mr.

Wolf and Mr. Palkovitz. Although the rele-

vance of this material is somewhat unclear at

this stage of the proceeding, the relator's

motion is hereby overruled. These items may

relate to possible defenses or evidence sho-

wing harrassment, bad faith prosecution or

possible retaliation. Therefore, at the pre-

sent time, the relator's motion to strike is

overruled.

This matter is now set for hearing on

April 19, 1991. The respondents are ordered

to file their answer to the amended complaint

on or before April 10, 1991.

This entry is dated this 29th day of March

1991 and this case is continued.

/s/ Thomas G. Knoll

THOMAS G. KNOLL, CHAIRMAN

/s/ JWM

per telephone authority

THE BOARD OF COMMISSIONERS

GRIEVANCES AND DISCIPLINE

THE SUPREME COURT OF OHIO

a () Certified to

Complaint against: ()Ohio Supreme

Sanford J. Berger #0008346 ()Court on 5/7/92

1 ( )

AND 4 |

Robert M. Fertel #0022109 as NO. 90-61

RESPONDENT, ()

Cuyahoga County Bar 4

Association, %

RELATOR. ()

()

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND

RECOMMENDATION OF THE BOARD OF COMMISSIONERS

ON GRIEVANCES AND DISCIPLINE OF THE SUPREME

COURT OF OHIO

A hearing on this matter was held on April

19, 1991 at the offices of the Cuyahoga

County Bar Association, 1228 Euclid Avenue,

370 The Halle Building, Cleveland, Ohio at

10:00 a.m. The Respondents, Sanford J. Berger

and Robert M. Fertel, were present at the

hearing and represented each other. Relator

was represented by Lawrence A. Turbow, Esq.,

24500 Chagrin Boulevard, #101, Beachwood,

Ohio; Ellen S. Mandell, 24500 Chagrin Boule-

vard, #101, Beachwood, Ohio; and Marshall

Wolfe, ESQ «5 1717 East Ninth Street,

Cleveland, Ohio 44114.

The Hearing Panel consisted of Charles E.

Brown, Esq., Ohmer Crowell, and Thomas G.

Knoll, the Panel Chairman. For purposes of

the hearing, Mr. Brown presided. Pursuant to

Gov. Rule V, Section 13, no member of the

Panel was a resident of the District from

which the Complaint originated, nor was any

member of the Panel a member of the Probable

Cause Panel that reviewed the matter pursuant

to Section 10(b) of Gov. Rule V. The Com-

plaint and Certificate in this matter were

filed by Relator with the Board of Commis-

sioners on Grievances and Discipline on

October 4, 1990. Subsequent thereto, 9 on

January 17, 1991, the Relator filed its Amen-

ded Complaint and Certificate with the Board

of Commissioners. In response to the Amended

Complaint, the Respondents, on April 11,

—EO

1991, filed their Answer to the Amended

Complaint.

FINDINGS OF FACT

BACKGROUND INFORMATION

1. Respondents, Sanford J. Berger and Robert

M. Fertel, are attorneys, licensed to prac-

tice in the State of Ohio and in the United

States District Court for the Northern Dis-

trict of Ohio, Eastern Division, and _ the

United States Court of Appeals for the Sixth

GLEcuit.

2. Relator, in its Amended Complaint, has set

forth five (5) separate counts, all of which

arise out of Respondents’ representation of

Daniel Guris ("Guris") [sic] in connection

with his claim of wrongful discharge arising

under 42 U.S.C. $1983.

3. Count one alleges the Respondents charged

excessive attorney fees in violation of DR

2-106(A). Count two charges that the Respon-

dents engaged in dishonesty, fraud and deceit

in misrepresenting to their client the attor-

A10

ney fee contracts that were in existence and

that their conduct violated DR 1-102(A)(4).

Count three charges that the Respondents

withheld settlement funds from their client

trom March, 1989 to May 1990 in violation of

DR 9-102(B). Count four charges that Respon-

dent Fertel failed te cooperate with the Rel-

ator's investigation. Respondents are alleged

in Count five to have prevented the grievant

from cooperating withe the pending bar inves-

tigation through litigation in Cuyahoga

County Common Pleas Court and arranging for

the terms of a settlement silencing all par-

ties in violation of DR 1-102(A)(2), (5), (6)

and DR 1-103.

COUNT ONE

4. Respondents were originally consulted by

Guris in December of 1984 in connection with

an action captioned Daniel Guris v. Gerald

McFaul, et al., Case No. 83-3 in the United

States District Court for the Northern Dis-

trict of Ohio, Eastern Division. That lawsuit

brought pursuant to 42 U.S.C. Sec. 1983,

alleged that Guris had been wrongfully ter-

All

minated from his position as a Cuyahoga

County Deputy Sheriff.

9. Prior to consulting with the Respondents,

Guris had been represented in the action

against McFaul by other counsel. Until con-

tacting Respondents, Guris' action had been

unsuccessful and a Summary Judgment had been

granted in favor of the defendants. Berger

and Fertel were retained by Guris to pursue

an appeal of the trial court's decision and

were ultimately successful in persuading the

United States Court of Appeals for the Sixth

Circuit to reverse the trial court's decision

and remand the case for trial. During the

pendency of the appeal, Guris advanced Res-

pondents Five Hundred Dollars ($500.00) for

fees and/or other expenses. Upon remand, the

case was once again decided on summary judg-

ment in favor of the defendants, but was

again reversed in September of 1986.

6. On April 3, 1987, Guris, Berger and Fertel

entered into a fee agreement entitled "Con-

tingency Contract" in which Guris acknow-

ledged the past services rendered by Berger

and Fertel and wherein all parties acknow-

ledged that Guris had paid Respondents the

additional sum of Two Thousand Five Hundred

Dollars ($2,500.00) for representation rela-

tive to the remand for trial. This amount was

Al2

not to be refundable, but was to be deducted

from any award ultimately realized in the

matter prior to the division of such award on

the basis of 60% for Guris and 40% for

Respondents.

7. Approximately one week prior to the final

trial in this matter, in August of 1988,

Berger and Fertel contacted Guris and as a

result of that conversation, entered into a

second fee contract callling for a division

of any award in the matter on the basis of

50% to Respondents and 50% to Guris. Although

none of the parties was able to produce a

written document pertaining to the August

1988 fee contract, there seemed to be no dis-

pute as to existence of an oral agreement in

that regard. At the hearing Guris testified

that at the time he entered into the second

fee contract contract calling for a 50%-50%

fee division, he had forgotten the existence

of the prior agreement relating to a 60%-40%

division; however, the Board was unconvinced

that Guris was mislead in this regard.

8. Upon trial of the Guris claim against

Sheriff McFaul, the Respondents were success-

ful in securing a jury award of One Hundred

Thousand Dollars ($100,000.00) in Guris'

favor.

9. Following the trial, Respondents filed a

A13

claim for Guris as the prevailing party, pur-

Suant to 42 U.S.C. Sec. 1988, requesting

attorney fees of One Hundred Ninety-One Thou-

sand Dollars ($191,000.00) for their repre-

sentation of Guris in connection with the

wrongful discharge matter.

10. During the pendency of the Sec. 1988

proceedings, the issue of attorney fees was

negotiated between the Respondents and the

Cuyahoga County Prosecutor's Office represen-

ting the defendant Sheriff and, at the urging

of Guris, was settled for the sum of Thirty

Thousand Dollars ($30,000.00). Subsequent

thereto, on March 13, 1989, the Cuyahoga

County Commission adopted a resolution auth-

Orizing payment to Guris, Berger and Fertel

in the amount of One Hundred Thousand Dollars

($100,000.00) and an additional payment of

Thirty Thousand Dollars ($30,000.00) in

settlement of attorney fees payable to

Respondents only.

11. In due time, after adoption of the reso-

lution by the Cuyahoga County Commission, two

(2) checks were forwarded to Respondents by

the Cuyahoga County Prosecutor's Office. The

check for $30,000.00, made payable to Berger

and Fertel, was endorsed and negotiated by

them upon receipt. With respect to the check

for $100,000.00, one of the Respondents con-

A14

tacted Guris requesting he endorse the check

and receive a distribution of $50,000.00, a

proposal to which Guris strongly objected

upon his belief that such an arrangement vio-

lated the subsequent 50/50 fee contract and

would result in Respondents receiving aé_ fee

of $80,000.00 against a portion of the jury

award to Guris in the amount of $50,000.00.

Respondents insisted on such a fee of $80,000

and attempted to collect this fee from Guris.

COUNT TWO

12. Count Two arises out of Relator's conten-

tion that the entering into two (2) separate

fee agreements with Guris and the failure to

remind him that the first fee agreement was

entered into, was conduct involving dishon-

esty, fraud, deceit and misrepresentation on

the part of the Respondents. The Relator did

not show by clear and convincing evidence

that the Respondents engaged in fraud or

deceit in getting their client to agree to a

subsequent oral contract to share any recov-

ery on a 50/50 basis. The Respondent lawyers

and their client understood that the final

agreement called for a 50/50 split. (Tr.pi71)

COUNT THREE

13. As a result of his being unable to reach

an accord with Respondents on the issue of

his financial participation in the $130,000

A15

received from the Cuahoga County Prosecutor's

Office, Guris obtained new legal counsel and

on June 9, 1989, filed an action for Declara-

tory Judgment against Berger and Fertel in

the Court of Common Pleas for Cuyahoga County.

14. In response to Guris' Declaratory Judg-

ment action, the Respondents, on June 12,

1989, filed an action against Guris and his

then attorney, which action contained four-

teen (14) separate counts and requested dama-

ges totalling in excess of $2.5 million dol-

lars. All of this litigation was ultimately

resolved by a settlement agreement entered

inot between Guris and Respondents, the terms

of which settlement remain undisclosed by

virtue of the provisions Respondents caused

to be drafted into the settlement Journal

Entry. During the entire period from March

13,1989 through approximately May 30, 1990

(the date of settlement of the Guris v.

Berger and Fertel litigation), the full

amount of the award proceeds remained in Res-

A16

pondents' possession and Guris, despite his

requests, was denied access to even the un-

disputed portion of the funds ($50,000.00).

COUNT FOUR

> Fe On March 7, 1989, Guris filed a Com-

plaint against Respondent Berger with the

Certified Grievance Committee of the Cuyahoga

County Bar Association.

16. On November 20, 1989, an investigatory

hearing was conducted by the Certified Griev-

ance Committee. Respondent Berger attended

and was represented by Fertel.

17. As a result of that hearing, the Certi-

fied Grievance Committee filed a formal Com-

plaint with the Board of Commissioners on

Grievances and Discipline against Respondent

Berger and further determined that the evi-

dence presented implicated Respondent Fertel.

18. Subsequent thereto, an investigatory

hearing was scheduled for February 8, 1990 by

the Certified Grievance Committee and notice

thereof was forwarded to Fertel. Despite this

nr ES SS OUEST

Al?

notice, Respondent Fertel failed to appear at

that hearing.

19. On January 23, 1990, Respondents filed a

Complaint in the United States District Court

for the Northern District of Ohio, Eastern

Division, against the Cuyahoga County Bar

Association, its President, the Certified

Grievance Committee of the Cuyahoga County

Bar Association; the Board of Commissioners

on Grievances and Discipline, the Ohio Su-

preme Court and others, seeking a Temporary

Restraining Order preventing further inves-

tigation by the Certified Disciplinary Com-

mittee of the Cuyahoga County Bar Association

and the Board of Commissioners on Grievances

and Discipline of the disciplinary charges.

On January 26, 1990, the request for Tempor-

are Restraining Order was denied. On Septem-

ber 19, 1991, the U.S. District Court granted

the motions of the defendants (state discip-

linary, agencies) and the complaint was

dismissed.

A18

COUNT FIVE

20. As a part of the resolution of the liti-

gation filed against the parties by each

other, Respondents and Guris entered into, on

or about May 30, 1990, a Journal Entry where-

in it was agreed substantially as follows:

(a) That all litigation existing between

the parties would be dismissed, with preju-

dice;

(b) That the Complaint filed by Guris with

the Cuyahoga County Bar Association against

the Respondents would be dismissed by means

of correspondence prepared by Guris_ and

approved by Respondents;

terms of settlement would be held in stric-

test confidence by all parties; and

(d) That any inquiries made of the parties

by any Bar Association or members of the news

media would be responded to by indicating

only that the matter between the parties had

been resolved.

A19

21. The evidence before the Board was clear

and convincing that the language referred to’

in subparagraphs (b) and (d) of paragraph 20

above was included in the Journal Entry at

the insistence of the Respondents.

22. In furtherance of the terms of the fore-

going Journal Entry, on June 8, 1990, Guris

did forward to the Certified Grievance Com-

mittee for the Cuyahoga County Bar Associ-

ation correspondence requesting that the pro-

ceedings against Respondents be dismissed.

CONCLUSIONS OF LAW

23. The Board finds by clear and convincing

evidence that Respondents conduct in charging

and attempting to recover a fee comprised of

50% of the jury award to Guris ($50,000.00)

plus the entire $30,000.00 received as a

result of the settlement of the attorney fees

motion in violation of DR2-106(A) [charging

an excessive fee]. Afcer reviewing the auth-

Ority by both the Relator and the Respondents,

the Panel concludes that the existing author-

~ A20

ity with respect to 42 U.S.C. Sec. 1988 does

not support Respondents’ contention that the

entire fee award of $30,000 was for the bene-

fit of Respondents only, and in addition to

the contracted-for fee. The effect of the

settlement of Guris' federal claims resulted

in a fund of $130,000 held for the benefit of

the client. Venegas v. Mitchell, 110 S.Ct.

1679 (1990).

24. The Panel finds there was insufficient

evidence to sustain a violation of DR1-102(A)

(4) in Count Two and dismisses the same.

25. Further, the Board finds on Count Three

that Respondents’ conduct in failing to pro-

vide Guris with any portion of the award,

even that which was undisputed, for a period

in excess of one year, was in violation of DR

9-102(B)(4) [failing to pay to a client funds

which the client is entitled to receive].

26. Further, the Board finds on Count Four

that Respondent Fertel's failure to appear

before the Certified Grievance Committee of

A21

the Cuyahoga County Bar Association was in

violation of Sec. 5(a) of Gov. Bar Rule V.

The Respondents conduct in dictating terms of

the Cuyahoga County Comnon Pleas Court Jour-

nal Entry on May 30, 19230, requiring Guris to

withdraw his Complaint and further, limiting

his testimony in any disciplinary proceeding

was in violation of their responsibility to

assist in the investigation of a Complaint

and DR1-102(A)(2), (5) and (6) as charged in

Count Five.

From the very onset of this matter, Res-

pondents refused to accept any ethical res-

ponsibility for their conduct in attempting

to collect their legal fees from Guris. A

clearly excessive fee was charged, a client

was denied access to any portion of the

settlement proceeds, and when called upon to

account for their conduct in an ethical in-

vestigation, the Respondents attempted to end

the bar association's inquiry and silence the

complainant forever. The Respondents’ conduct

A22

throughout this proceeding strikes at the

heart of the disciplinary system and the

rules established by the Ohio Supreme Court

to ensure ethical conduct within the profes-

sion.

It is the conclusion of the Pane] that by

reason of Respondents' conduct as described

herein, Respondents should be Suspended from

the practice of law within the State of Ohio

for a period of one (1) year.

RECOMMENDATION

Pursuant to Gov. Bar R. V(18), the Board

of Commissioners on Grievances and Discipline

of the Supreme Court of Ohio considerdd this

matter on April 10, 1992. The Board adopted

the Findings of Fact and Conclusions of Law

of the Panel and recommends that the Respon-

dents, Sanford J. Berger and Robert M. Fertel,

be suspended for one (1) year from the prac-

tice of law in the State of Ohio. The Board

further recommends that the costs of these

proceedings be taxed to the Respondent in any

A23

disciplinary order entered, so that execution

issue.

Pursuant to the order of the Board of

Commissioners on Greivances and Dsicipline of The

supreme Court of Onio, | nereby certify the fore-

yoing Findings of Fact, Conclusions of Law, and

Recommendations as those of the Board.

/s/ Jonathan W. Marshall

JONATHAN W. Marshall, Secretary

Board of Commissioners on Grievances

and Discipline of The Supreme Court of

Ohio

14. “Vv

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ine upreme LUC cs I ni

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WCUY anoza COUTLY Dé i i

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Upon COonsidera mee Ol responden

ahKo — ~ — + > | - e ,

to adstain or, in the alternative,

sion of time to file objections and

[ by the

Court

ams M

> Thomas . . i

T \MA VOT

THOMAS ~. MOYER

ine oUt rel = \ Uurt of n1c

Cuyahoga County Bar 19Y lern

Assoclation, ’ :'

Lo wilt July 3QU, Ig

Relator { )

ase No. 92-905

Case No. 982-906

Sanrord ». Berger

Robert M. Fertel, —

ry CNIRY)

nespondents

}

1] . . .2 al - m as } - Sw . as

YVpon consideration of respondent s motion

to rlie ood }yections instanter,

r a « VND T\T™ “T) j . - °

i a t RDERED by the Court that said

mnt ion bh and Sb eame ic | ashy Joeniedq

motion be, and the same is hereby, denied.

/s/ Thomas J. Moyer

7 ] « 7 i on

THOMAS J. MOYER

Chief Justice

A26

CUYAHOGA COUNTY BAR ASSOCIATION v. BERGER

CUYAHOGA COUNTY BAR ASSOCIATION v. FERTEI

r ‘ ~ ) = a a

serger (1992), 64 Ohio St.3d 454]

preatratank - \onutnull ‘9 J

[Cite as Cuyahoga Cty. Bar Assn. v.

Attorneys at law--Misconduct--One year suspension--

Charging a clearly excessive fee--Refusing to

promptly pay funds to a client which client is

entitled to receive--Neglecting or refusing to assist

the grievance committee's investigation--Circumventing

aq disciplinary Rule through actions of another--

Engaging in conduct prejudicial to the administration

of justice--Engaging in conduct adversely reflecting

on one's fitness to practice law.

(Nos. 92-905 and 92-906--Submitted June

17, 1992--Decided September 2, 1992.)

ON CERTIFIED REPORT by the Board

Commissioners on Grievances and Discipli

the Supreme Court. No. 90-61.

By amended complaint filed January 17,

1991, relator Cuyahoga County Bar Association

charged respondents, Sanford Bs Berger

(Attorney Registration No. 0008346) and

Robert M. Fertel (Attorney Registration No.

0022109) with misconduct, in five counts:

violations of DR2-106(A) (charging a clearly

excessive fee); 1-102(A)(4) (engaging in con-

duct involving dishonesty, Fraud, deceit, or

misrepresentation); 9-102(B)(4) (refusing to

promptly pay funds to a client which client

is entitled to receive); Gov.Bar R. V(5)(a)

(neglecting or refusing to assist the egriev-

ance committee's investigation); DR1-102(A

(2), (3), (6) and 1-103(A) (circumventing a

Disciplinary Rule through actions of another;

engaging in conduct prejudicial to the admin-

istration of justice; engaging in conduct

adversely reflecting on one s_ fitness to

practice law; and failing to report unprivil

eged knowledge of a violation of DR 1-102 to

a tribunal or other investigative authority).

Respondents’ answer to the amended com-

plaint, filed April 11, 1991, denied the

allegations of misconduct and raised affir-

mative defenses. Respondents alleged that the

board lacked subject-matter jurisdiction and

that the charges were not proper because of

federal preempticn and the Supremacy Clause

of Clause 2, Article VI of the United States

Constitution. -

Testimony and other evidence was presented

AZo

at a hearing before a panel of the Board of

Commissioners on Grievances and Discipline of

the Supreme Court. The record reflects that

the charges of misconduct arose from respon-

dents representation of Daniel Gurish in

connection with his claim fo wrongful dis-

charge as a Cuyahoga County deputy sheriff

eo)

, Title 42, U.S.

arising under Section 1°

Code. Respondents obtained a judgment in

favor of Gurish and against Cuyahoga County

Sheriff McFaul in the amount of $100,000.

Thereafter, pursuant to Section 1988, Title

42, U.S.Code, the~court awarded $30,000 as

reasonable attorney fees. At Gurish's urging,

respondents accepted ae total settlement

rt)

The Board o Commissioners of Cuyahoga

County authorized preparation of a voucher

payable to Gurish, Berger and Fertel for

$100,000 and an additional voucher payable

to only Berger and Fertel for $30,000. These

checks were delivered to respondents and the

$30,000 check was cashed by respondents. A

disagreement resulted over the division of

the $100,000 check. Respondents’ contended

they were entitled to the $30,000 in attorney

fees and, in addition, fifty percent of the

$100,000 award, based upon a contingency fee

agreement between the parties. Gurish wanted

fifty percent of the $130,000 “package. As a

result of the dispute, Gurish filed an action

in the Court of Common Pleas of Cuyahoga

County for declaratory judgment as to the

proper division of the $100,000 check. Res-

pondents filed a separate action seeking

damages against Gurish and his new attorney

in the amount of $2,500,0

The two actions were settled on May 30,

1990, on the basis of a split of the $130,000

package, with Gurish receiving $65,000 and

respondents receiving $35,000 (in addition to

the $30,000 attorney-fee check). The agree-

ment required strict confidentiality as to

the terms of the settlement and, in the event

A30

of inquiries by any bar association, an

agreement that the response would be limited

to: “the matters have been resolved."

The hearing panel reviewed the complaint

against respondents and made findings of fact

conclusions of law and a_ recommendation.

Asserting that the respondents’ conduct

Struck at the heart of the disciplinary sys-

tem and ethical rules established by the Ohio

Supreme Court, the panel noted that respon-

dents refused to accept any ethical responsi-

bility for their conduct.

Moreover, the panel concluded that respon-

dents charged an excessive fee, denied a

client access to settlement proceeds, and

attempted to suppress the bar association's

investigation, thus violating DR2-106(A),

9-102(B)(4), Gov. Bar R. V(5)(a) and DR 1-102

(A}(2), (5), end (6). However, the panel

found no violation of DR 1-102(A)(4).

The panel recommended that respondents be

Suspended from the practice of law for one

A31

year. The board adopted the findings, conclu-

sions and recommendations of the panel and

further recommended that costs be taxed to

respondents.

ce A. Turbow, Ellen S. Mandell and

Marshall J. Wolf, for relator.

Robert M. Fertel, for respondent Sanford J.

curiam. Based upon review of the record,

including the exhibits, we concur in the

findings and recommendations of the board.

Respondents, Sanford J. Berger and Robert M.

40)

io)

ae)

49)

09)

| -

19)

Fertel, are ea

practice of law in Ohio for one year. Costs

taxed to respondents.

MOYER, C.J., S

H. BROWN and R

WEENEY, HOLMES, DOUGLAS, WRIGHT,

BONICK, JJ., concu

A32

UNITED STATES CONSTITUTION

}

Supremacy Clause, Article VI, Clause 2,

This Constitution and the Laws of the

United States which shall be made in pursu-

ance thereof; ..., shall be the Supreme Law

of the ‘Land; and the Judges in every State

shall be bound thereby, and any 'hing in the

Constitution or Laws of any State to the

Contrary notwithstanding.

Amendment 14, Section 1

it alla a

All persons born or naturalized in the

United States, and subject to the jurisdic-

tion thereof, are citizens of the United

States and the State wherein they reside. No

State shall make or enforc any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property without due process of law; nor deny

to any person within its jurisdiction the

equal protection of the laws.

Se)

42 U.S.C. Section 1988

(in pertinent part)

In any action or proceeding to enforce a

provision of sections ... 1981 of the Revised

Statutes [42 USCS

§1981-1983, 1985

or title VI of the Civil Rights Act of

.|, the court, in

ce)

Ta)

Besa

—

its discretion, may allow the _ prevailing

party, other than the United States, a reas-

onable attorney s fee as part of the costs.

DR2

DR2-106

ment for,

clearly

(B)

a review

prudence

firm

a reasonable

OF PROFES

rane

excess]

fee

convict

A34

-106 of OHIO SUPREME COURT’

SIONAL RESPONSIBILITY

FOR LEGAL SERVICE

not enter

clearly excessive when, after

lawyer of ordinary

with a definite and

ion that the fee is in excess of

Se.

be considered as in deter-

reasonableness include

the followine:

(1) The

novelty

volved,

the le

client, th

)

employment

the lawyer.

labor required, the

,* of +

L 7”

of the questions in-

requisite o perform

services properly.

likelihood, if apparent to the

the acceptance of the particular

‘-

will preciude other employment by

(3) The fee customarily charged in the

locality for similar legal services.

(4) The amount involved and the results

c } + ] ry ¢ a. . +m? . A ~

.) The time limitations imposed by the

(6) The nature and length of the profes-

sional relationship with the client.

OQ.

(7) The experience, reputation, an

}

ability of the lawyer or pawyers performing

or contingent

149)

ctr

oma

40)

rap

DR9-102(B)(4) of OHIO SUPREME COURT'S

CODE OF PROFESSIONAL RESPONSIBILITY

DR9-102(B) A lawyer shall:

(4) Promptly pay or deliver to the client as

requested by a client the funds, securities,

or other properties in the possession of the

lawyer which the client is entitled to

receive.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.