# Petition for Writ of Certiorari — Leaf v. Supreme Court

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2338%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 941

## Text

_—

9 4 ” ] 6 5 4 io "7 T LE wa

ne
in tHE 36d’ APR 8 1993

SUPREME COURT OF THE UNIT: BGR PESHE ©:

OCTOBER TERM 1992

LINDA A. LEAF,

Petitioner,
vs.

SUPREME COURT OF THE STATE OF
WISCONSIN, BOARD OF ATTORNEYS
PROFESSIONAL RESPONSIBILITY,
GERALD STERNBERG, ROY KORTE,
CHARLES STIERMAN, BRIAN HENDERSON,
LYNNE LEVIHN, and UNKNOWN
INSURANCE COMPANIES,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

Charles L. Ollivier
Attorney for Petitioner
321 North Utica Street
Waukegan, IL 60085-4207
(708) 244-4280

l.

QUESTIONS PRESENTED FOR REVIEW

Can the state demand secret exam-
ination of confidential client
files, even under the auspices of
an attorney disciplinary investi-
gation?

Under Feldman, can an attorney
bring general constitutional
challenges to state bar disci-
plinary rules and regulations in
federal district court?

Can a state court adjudge a fed-
eral plaintiff’s constitutional
issues irrelevant, and determine
them to be meritless without
hearing, and then turn right
around and use preclusion as

a tool to block federal civil
rights litigation on those is-

sues?

PARTIES TO THE PROCEEDING BELOW
In addition to the captioned par-
ties, the parties included Andrew B.

Haynes as plaintiff in the District

Court.
TABLE OF CONTENTS
PAGE
Questions Presented i
Parties To The Proceeding Below 5 |
Table Of Contents . ii
Table Of Cases liv
Opinions Below V
Grounds For Jurisdiction Vv
Constitutional Provisions and Vv
Statutes Involved
Jurisdictional Statement vi
Statement Of The Case 1
Reasons For Granting The Writ
The Decision Below Is Incorrect 9
Public Policy Requires That 29
Certiorari Be Granted
Conclusion 47

ii

TABLE OF CASES

PAGE

Cases Cited:

Democratic Cent. Com. v . Wash. 27
Met. Area Tr. Comn.,

842 F.2d 402 (D.C. Cir 1988)

Edmonson v. Leesville Concrete 24
Co. Inc., 111 SCt 2077 (1991)

England v. La. State Bd. of 22
Med. Exam., 375 U.S. 411,

84 S.Ct. 461 (1964)

D.C. Court of Appeals v. Feldman, 4i,
et al., 460 U.S. 462, 103 S.ct. 24,
1303 (1983) 31

Gray v. Lacke, 27
885 F.2d 399 (7th Cir 1989)

Ivy Club v. Edwards, 19
885 F.2d 399 (3rd Cir 1991)

Ktsanes v. Underwood, 12
560 F.2d 590 (7th cir 1977)

Levine v. Supreme Court of Wis., 48
679 F Supp 1478 (WD Wis 1988)

McCarthy v. Madigan, 48
—US__, 112 S.Ct. 1081 (1992)

Middlesex County Ethics 46

Committee v. Garden State
Bar Association, 457 U.S.
423, 102 S.ct. 2515 (1982)

S43

Painewebber, Inc. v. Farnam, 27
870 F.2d 1286 (7th Cir 1989)

Rogen v. Supreme Court of VA., 48
990 F.Supp. 102 (ED VA 1989)

U.S. v. Napper, 28
887 Fed. 1528 (llth Cir. 1989)

Younger v. Harris, Secee
401 U.S. 37, 91 S.ct. 746 (1971) 39

OPINIONS BELOW

The United States District Court for
the Eastern District of Wisconsin filed
its Decision and Order dismissing for
lack of subject matter jurisdiction on
October 31, 199] (A-I). On November 14,
1991, Petitioners filed their Motion For
Reconsideration; on November 15, 1991,

the court denied that motion (A-4).

iv

GROUNDS FOR JURISDICTION

The judgment sought to be reviewed
was entered by the United States Court of
Appeals for the Seventh Circuit on Novem-
ber 12, 1992, and is reported at 979 F2d
998 (7th Cir 1992). Petitioners’ timely
Petition for Rehearing with Suggestion
for Rehearing In Banc were denied January
8, 1993; the Petition For Writ Of Certio-
rari was filed within ninety days of that
date.

This Court’s jurisdiction is invoked

under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES
INVOLVED

None. All issues involve judicially
created exceptions to federal court ju-

risdiction.

JURISDICTIONAL STATEMENT

Jurisdiction of the District Court
is under 28 U.S.C. sections 1331, 1343,
2201, and 2202; 42 U.S.c. sections 1981,
1983, 1985, 1986, and 1988; and the Con-
stitution of the United States, more
particularly Article Four and the First,
Third, Fourth, Fifth, Ninth, Tenth, Thir-
teenth, and Fourteenth Amendments there-

SO.

vi

STATEMENT OF THE CASE

Petitioner, Linda A. Leaf (a white
female and lawyer), and Andrew B. Haynes
(a black male and Ph.D. consultant), the
plaintiffs below, have been business
associates and personal friends for eigh-
teen years. Leaf was admitted to the
Wisconsin and federal bar in 1975 and has
always been a sole practitioner. Over the
years Leaf openly and consistently adver-
tised for the need for legal reform, and
offered legal, social and business pro-
grams to pursue that goal. The programs
were entitled Law Related Services.

In 1986 four grievances against Leaf
were filed with the Wisconsin Board of
Attorneys Professional Responsibility
(hereafter: BAPR) which included many
allegations of improper acts by Haynes.
Leaf and Haynes responded to all of

BAPR’s questions. The case sat dormant

until 1989 when Leaf received a BAPR
letter demanding that she produce nine
years of client records of clients other
than the four complaining witnesses; nine
years of business records: nine years of
personal tax returns; nine years of busi-
ness tax returns; and nine years of
Haynes’ records (to be produced by Leaf;
A-75). An attorney, defendant Stierman,
the chairperson of the local BAPR inves-
tigating committee, had appointed himself
as the investigator on Leaf’s case and
directed the issuance of this demand
which was signed by other BAPR personnel.
A few years earlier this Same attorney
had been Opposing counsel on a major case
of Leaf’s which was concluded successful-
ly on behalf of Leaf’s client (A-92).
Some of the alleged misconduct violations
against Leaf pertained to activity in

that case.

Although the disciplinary rules
grant an accused attorney an absolute
right to request that a different inves-
tigator be appointed once an attorney is
given notice as to who is the investiga-
tor, and the rules require that notice
must be given, Leaf was never informed
that Stierman appointed himself the in-
vestigator (A-92).

Leaf and Haynes filed suit in feder-
al district court on March 14, 1989. In
Count I of the complaint Leaf challenged
the constitutionality of Wisconsin SCR
21.14 and 22.24 (gag rule) which make it
a misconduct violation for an attorney to
make public, including informing her
clients, about any BAPR activity prior to
the filing of a formal disciplinary com-
plaint.

The factual allegations of the Count

I gag rule count related to a grievance

made by an Opposing counsel in a 1988

estate case. By letter to the Wisconsin
Supreme Court Leaf sought permission to
communicate with her clients regarding
the actions of the Opposing counsel. She
was denied permission (A-35, 37, 69). No
disciplinary charges were filed against
Leaf regarding this estate case grievance
and the investigation was closed at the
time Leaf filed her federal suit. Due to
this gag rule the affected clients stil]
do not know of the secret state inquiry
into their case. In Count I Leaf sought a
declaratory judgment that the gag rule
was unconstitutional.

In Count II Leaf and Haynes sought
damages and an injunction for violations
of their civil] rights, based on racial
and sex discrimination, by the arbitrary
and capricious interference with Leaf’s

law practice and Haynes’ business activi-

ties, inter alia. Count III was between

Leaf and Haynes and all of the defen-
dants, adding Henderson and Levihn, both
lawyers, for a racially motivated con-
Spiracy to violate Leaf’s and Haynes ’
Civil rights. Henderson and Levihn were
alleged to have filed a spurious multi-
million dollar state lawsuit against Leaf
and Haynes for the sole purpose of embar-
rassing and humiliating them (A-51). The
Suit contained scandalous allegations of
sexual assault and false imprisonment
against Leaf and Haynes. It was dismissed
for lack of prosecution before this fed-
eral suit was filed; no summons had been
served (A-90).

The district court on April 28,
1989, abstained the entire lawsuit under
Younger. However, the court did recognize
that not all of Leaf’s and Haynes’ claims

were cognizable in the state proceeding

(A-II). In response to the court’s inqui-
ry, the state, representing all defen-
dants except Henderson and Levihn prom-
ised the court that Leaf would be able to
raise her constitutional Claims in the
course of the BAPR proceedings.

Formal disciplinary charges were
issued against Leaf by BAPR in October,
1989. During the discovery and trial
process whenever Leaf attempted to raise
her constitutional claims against the
disciplinary rules and process and her
Civil rights-claims against BAPR offi-
Clals she was told that those issues were
irrelevant. She was never allowed to
discover or present evidence on those
claims.

The Wisconsin Supreme Court adopted
all of the referee’s findings of fact and
recommendations, and Suspended Leaf for

Six months from the practice of law. The

Wisconsin court affirmed, without expla-
nation, that Leaf’s constitutional claims
had no merit and are unsubstantiated. The
findings included that Leaf was guilty of
non-cooperation with a BAPR investiga-
tion, a misconduct violation, because
she refused to provide the records de-
manded in the 1989 letter.

Leaf and Haynes then returned to
federal district court in November, 1991.
A proposed Amended Complaint (A-55) in-
cluded all of the original claims and
added new ones. The new claims were: 1. a
constitutional challenge seeking declara-
tory and injunctive relief to the disci-
plinary rules under which the 1989 letter
demand was issued as being an unreason-
able search and seizure (as to Leaf’s
clients, business associates, and her-
self) and a violation of both the attor-

ney/client privilege and the right of

Leaf’s clients against self-incrimina-
tion; 2. a constitutional challenge seek-
ing declaratory and injunctive relief to
the stated Wisconsin policy that the
attorney disciplinary rules and proce-
dures are not bound by federal constitu-
tional rights except for the attorney’s
right against self-incrimination: 3. a
constitutional challenge seeking declara-
tory and injunctive relief to the BAPR
nebulous “pattern of practice" policy; 4.
a claim seeking declaratory and injunc-
tive relief and damages for the violation
of the constitutional and Civil rights of
Leaf and Haynes prior to and concurrent
with Leaf’s disciplinary hearing; 5. a
claim seeking declaratory and injunctive
relief and damages for a racially moti-
vated conspiracy to violate the constitu-
tional and civil rights of Leaf and

Haynes; and, 6. a claim for damages for

8

failure to prevent the constitutional
violations and the conspiracy to commit
said violations.

On October 31, 1991, without motion
or hearing the district court dismissed
the entire lawsuit reasoning that all of
the claims were inextricably intertwined
with the Wisconsin court’s decision (A-
1). Leaf and Haynes appealed to the Sev-
enth Circuit, which affirmed the dismiss-
al of all of Leaf’s claims but reversed
the dismissal of Haynes’ claims (A-7).

Leaf and Haynes petitioned the Sev-
enth Circuit for rehearing with sugges-
tion for rehearing in banc. The Seventh

Circuit denied the petition (A-29).

REASONS FOR GRANTING THE WRIT

The Decision Below Is Incorrect

As a result of groundless presump-

9

tions, the courts below improperly com-
mingled Leaf’s civil rights and constitu-
tional claims into a unidentified group-
ing. The factual allegations for the
Count I gag rule claim involved a disci-
plinary investigation of Leaf in which no
charges, and hence no disciplinary trial,
were ever brought. It was a closed inci-
dent at the time of the initial filing of
the federal lawsuit.

Leaf’s Henderson and Levihn claim
pertains to Henderson’s filing of a state
lawsuit against Leaf which was ultimately
dismissed for lack of prosecution.

Since, since Henderson and Levihn,
like Haynes, were not parties in the
state disciplinary trial against Leaf,
they were not involved in the state ac-
tion and the claims involving them could
not be raised. The panel below erred in

Claiming that the gag rule count and the

10

Henderson and Levinn count were inextri-
cably intertwined.

The district court correctly ini-
tially found issues in plaintiffs’ origi-
nal suit that were not cognizable in the
state disciplinary action. But when Leaf
returned to the district court, it re-
fused - without explanation - to address
those issues in denying federal jurisdic-
tion to plaintiffs. The district court
held no hearing or inquiry to determine
which federal claims and constitutional
issues were determined by the state court
or could have been raised in the state
action. Indeed, despite their burden of
proof, the federal defendants brought no
motion and presented no evidence. The
district court just presumed plaintiffs
out of court. The fundamental unfairness
of this decision is highlighted by its

application to plaintiff Haynes.

ll

In the gag rule count, Count I, Leaf
was barred by BAPR and the Wisconsin
Supreme Court from advising her clients
in a then pending estate case of a disci-
plinary complaint made Dy the opposing
counsel in the case. Her Clients are
Still unaware of the secret state conduct
affecting their rights and interests
because Leaf is still under the gag rule.

Leaf sought permission from the
Wisconsin Supreme Court, via letter, to
inform her clients of the actions of
Opposing counsel in the making of a com-
plaint against her in their case. The
Wisconsin court refused. Leaf’s gag rule
count challenges the constitutionality of
this disciplinary rule. The facts are
almost identical to the facts in Ktsanes

v- Underwood, 560 F.2d 790 (7ta Cir

1977), just substitute bar "disciplinary"

rule for bar "admission" rule, where the

12

federal plaintiff had sought waiver of a
bar admission rule; the Seventh Circuit
ruled the constitutional challenge could
be brought in federal court.

Although the state in its brief
filed in the court below falsely argued
that Leaf’s gag rule challenge was raised
in her disciplinary proceedings, Leaf’s
motion for sanctions clearly spells out
the procedural and historical distinction
between Leaf’s gag rule count from Leaf’s
other counts (A-132). The state never
filed a response to the sanctions motion.
The panel’s decision summarily denied
Leaf’s sanctions motion without any find-
ings or explanation.

Abstention does not accomplish what
it is designed to (a state ruling may
clarify or resolve the constitutional
issues) if the federal plaintiff cannot

even raise federal constitutional chal-

13

lenges in the state proceeding. It merely
delays the inevitable federal action
following the state proceeding and post-
pones the possible vindication of the
federal plaintiff’s constitutional
rights.

The decision below was incorrect in
its factual finding by presuming that
Leaf’s claims were decided by the Wiscon-
Sin court. As demonstrated by the record,
Leaf’s constitutional claims were deemed

irrelevant and she was prevented from

discovering and presenting evidence on
them.

Initially, in order to trigger ab-
stention, the state promised the district
court that Leaf could raise her constitu-
tional claims in any state disciplinary
proceedings. However, when Leaf tried to
raise those Claims, she was rebuffed, as

demonstrated by the record (from tran-

14

p 14, ln 17:

Mr. Roethe: "The only objection that
is valid to your duty to cooperate is
that this information might tend to in-
criminate me under the fifth amendment."

p 16, ln 14:

Mr. Roethe: "..+Haberman specifi-
cally found there is no constitutional
right not to testify or to produce re-
cords."

p 27, In 1:

Referee Regez: "Well, we’re not
going into constitutional questions."

Transcript of May 11, 1990, hearing,
p 3, ln 10:

Mr. Roethe: "...Number two, the
Board of Attorneys Professional Responsi-
bility is not on trial here. Bad faith,
BAPR’s policies and procedures; and
BAPR’s investigation is not the issue
here...

---Andrew Haynes is not a party to
these proceedings. His interests are not
involved..."

Transcript of July 18, 1990, hear-
ing, p 52, ln 17:

Referee Regez: "...In other words,
I’m not going to permit this hearing to
develop and degenerate into putting the
Board on trial...

This form (sic) is not for the pur-
pose of trying the Board of Attorneys
Professional Responsibility.”

Leaf’s Interrogatories to BAPR:

Question #30: "Please state al]
procedural safeguards to insure document
requests by Board district investiga-
tions:

15

develop and degenerate into putting the
Board on trial...

This form (sic) is not for the pur-
pose of trying the Board of Attorneys
Professional Responsibility."

Leaf’s Interrogatories to BAPR:

Question #30: "Please state all
procedural safeguards to insure document
requests by Board district investiga-
tions:

a. are for relevant documents only.

b. do not violate the constitutional
rights of respondent attorneys and their
clients; and

Cc. are not otherwise abusive or
ultra vires."

BAPR answer: "Objected to on the
grounds that the information sought in
the question is not relevant nor likely
to lead to relevant information."

(BAPR objected to nineteen of Leaf’s
interrogatory questions regarding BAPR’s
conduct in the same fashion. All objec-
tions were sustained by Referee Regez.)

Trial Denial
Trial transcript, vol 3a, p 453, ln

233

Mr. Roethe: "The Board’s investiga-
tion and the Board’s reports have all
been ruled irrelevant and immaterial in
this proceeding by Your Honor in discov-
ery proceedings, and they are immaterial.
We’re not going to put the Board on trial
here, Your Honor, and that’s your own
words and that’s the law.”

Referee Regez: "That’s CAGE oes"

Trial transcript, vol 3a, p 455, ln

16

17:

Referee Regez: "I think that’s imma-
terial...Because I have ruled that the
Board was not going to be put on trial in
this case..."

Trial transcript, vol 3a, p 469, ln
33

Ms. Leaf: "The offer of proof is,
Your Honor, that the Board has in its
possession stolen documents..."

ln 19:

Referee Regez: "Sustained. I don’t
think it’s material."

Trial transcript, vol 3a, p 511, ln
233

Mr. Roethe: "Same objection. What
the Board’s policies is are is irrelevant
and immaterial."

Referee Regez: "Sustained."

Trial transcript, vol 3a, o S32, in
13:

Ms. Leaf: "Does the Board have a
procedure to identify potential conflicts
of interest between an investigator and a
respondent attorney?"

Mr. Roethe: "Objected to, irrelevant
and immaterial."

Referee Regez: "Sustained."

Trial transcript, vol 4, p 855, ln
6:

(When questioning Diane DeMerchant)
Mr. Ollivier: "...to attack the credibil-
ity of this witness to show that these
were not her ideas and words, but rather
these were manipulated and made by Paul
Dallas."

Mr. Roethe: "It’s all objected to as

17

irrelevant and immaterial."
Referee Regez: "Sustained."

is Trial transcript, vol 4, p 856, ln
~F

Mr. Roethe: "That’s ridiculous, and
it’s irrelevant and immaterial what the
Board new (sic) or believed."

Referee Regez: "Sustained."

Trial transcript, vol 6, p 199, ln
6:

Mr. Roethe: "I’m going to object to
constitutional issues. They do not create
a defense under the rules of professional
responsibility other than. the Fifth
Amendment. "

Trial transcript, vol 6, p 247, ln
12:

Mr. Roethe: "The Board has nothing
to do with this. The Board is not on
trial here. This is irrelevant and imma-
terial."

Referee Regez: "Sustained."

BAPR counsel’s (Roethe) trial brief,
p 10:

"The only constitutional protection
which an attorney has in a misconduct
investigation, proceeding, or prosecution
is the privilege against self-
incrimination."

The above examples certainly do not
cover all of the circumstances in which
Leaf was prevented from effectively,

adequately, and meaningfully raising her

18

constitutional claims.

Although the state made broad claims
to the panel below that Leaf raised her
constitutional claims in the disciplinary
proceedings, the state presented no evi-
dence by citations to the record to con-
tradict the fact that Leaf’s constitu-
tional and civil rights claims were
blocked in that they were ruled irrele-
vant. As proof that her claims were con-
sidered, the state merely quoted from the
Wisconsin court’s decision that Leaf’s
constitutional claims had no merit. Ivy

Club _v. Edwards, 943 F.2d 270, 275 (3rd

Cir 1991). The parties can not be bound
by disputed issues determined irrelevant

by the state court (see: Ivy Club, at

284).
In their Amended Complaint Leaf also
charged that she was denied her constitu-

tional right to access to the courts

19

because of the above scenario. This con-
stitutional claim of deprivation of the
right to access to court, having become
ripe only after her treatment in the
state court, was obviously not litigated
in the state action.

Because the state actors (who are
the federal defendants) are members and
agents of the state judiciary, it is
unlikely that an impartial examination of
the plaintiff’s federal claims were made
in state court of state constitutional
misconduct. This is especially true if
the claims of the federal plaintiff in-
volve a state conspiracy by the federal
defendants (members and agents of the
state judiciary) to deprive the federal
plaintiffs of their constitutional right
to a federal trial.

Although the panel below did not

expressly rule that federal district

20

court jurisdiction should not be exer-
cised in cases involving bar disciplinary
rules, that is the result of its deci-
sion. Since bar disciplinary matters will
by their very nature touch on some state
judicial action, under the panel’s analy-
Sis in this case, any constitutional
claims to state bar disciplinary rules
are likely to invoke either inextricably
intertwined or res judicata/collateral
estoppel, and thus prevent federal juris-
diction. This in effect would nullify

District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 103 S.Ct. 13603
(1983). Feldman holds that whether the
state bar action was a judicial proceed-
ing or not, general constitutional chal-
lenges to bar admission rules can be
brought into federal district court.
Therefore, it is inappropriate to apply a

different standard to bar disciplinary

21

rules.

Even if it is argued that litigants
can preserve their federai court juris-
diction by not raising their constitu-
tional claims in the state proceeding
(though inextricably intertwined may
still operate as a bar), Leaf chose to
litigate her federal claims in federal
court and was involuntarily thrown into
state court because of abstention. Eng-

land _v. Louisiana State Bd. of Medical

Examiners, 375 U.S. 411, 84 Sct 461,

(1964) requires her to at least bring
those claims to the attention of the
state court, which she did. It was the
state court actors which deemed those
claims irrelevant in the state proceed-
ing. To allow the state actors, who are
the federal defendants, to reap the bene-
fit of blocking Leaf’s claims in the

state court to bar the claims from a

22

federal forum is a gross injustice and
sets a dangerous precedent: in any civil
rights litigation where the federal de-
fendants are connected with the state
judiciary, by simply ruling that the
federal plaintiff’s claims are irrelevant
in a state action, the claims are defeat-
ed without ever getting to the merits in
either the state and federal actions. In
essence, state actors would be immune
from federal civil rights liability.

If the panel’s interpretation of
Feldman is allowed to stand, all attor-
neys subject to disciplinary actions will
be denied, as a matter of law, the right
of access to the federal courts. Further,
because of the gag rule, citizens have no
knowledge of secret state violations of
their federal rights and, therefore, they
are also denied access to the federal

court. Leaf’s duty to protect her clients

23

constitutional rights allows her standing
on their behalf.

Edmonson v. Leesville Concrete Co., Inc.,

— U.S. __, 111 SCt 2077, 2078 (1991).

Because the panel’s intrepretation
of Feldman blocks Leaf’s constitutional
Challenges to the gag rule and disciplin-
ary investigation rules, Wisconsin now
has a judicially mandated state right to
order attorneys not to advise their cli-
ents of secret state inspections of their
clients’ confidential files.

To interpret this civil rights
complaint as an appellate review of the
state decision would result in the anoma-
ly of no legal procedure to bring consti-
tutional challenges to the attention of
the federal courts, making states the
predominant arbitrator of federal consti-

tutional rights. Under the panel’s inter-

pretation of Feldman, to approach the

24

federal district court is seeking a re-
view of the state court decision. There-
fore, as a matter of law, the determina-
tion of attorney’s constitutional rights
will be confined to the very entity ac-
cused of the unconstitutional acts.
Leaf’s second, third and fourth
counts of the Amended Complaint contain
general constitutional challenges’ to
Wisconsin attorney disciplinary rules and
procedures. Among those challenged is the
rule that subjects an attorney to disci-
pline if the attorney does not "fully"
cooperate with a BAPR investigation. Leaf
asserts that the rule is unconstitutional
because there is no provision for legiti-
mate exceptions or hearing on objections,
such as demands for wholesale production
of nine years of client records. It per-
mits unsupervised and secret government

intrusion into an attorney’s client re-

25

cords in violation of attorney/client
privilege, the client’s right against
self-incrimination, unconstitutional
search and seizure, etc. The disciplinary
process provides no mechanism to object
to any unconstitutional or even criminal

acts without first incurring an automatic

violation.

Simply by bringing any disciplinary
Claim against an attorney, the state may
have secret access to the personal and
confidential files of any citizen who has
hired an attorney. By the panel’s ruling,
an attorney can not object, inform the
client or seek access to the federal
courts to protect federal constitutional
rights of his clients’ or himself.

How can the state court’s superfi-
Cial holding that the federal plaintiffs’
Claims are without merit and "unsubstan-

tiated" be a meaningful decision on the

26

merits, if those same issues were deemed

irrelevant at the trial level? The state

court decision does not specify which
constitutional claims have no merit or

why. Paine Webber, Inc v. Farnam, 870 F2d

1286 1291 (7th Cir 1991). The Seventh
Circuit should not irrebuttably presume
that they are the same constitutional
claims plaintiffs bring into federal
court, especially when the state, charged
with establishing the elements for pre-

clusion (Democratic Cent. Com. v. Wash.

Met. Area Tr. Comm., 842 F2d 402, 409 (DC

Cir 1988) and Gray v. Lacke, 885 F2d 399,

406 (7th Cir 1989); interpreting Wiscon-
Sin law), presents no evidence that the
constitutional issues claimed to have no
merit are the same as those brought into
federal court. Therefore, federal subject
matter jurisdiction, which unquestionably

existed when federal suit was first

27

filed, has not been destroyed.

Whether the federal suit fails be-
cause of preclusion or because it is
characterized as a quest for a review of
the state decision, the result is the
same - loss of access to a federal forum
for the purposes of fact finding and
relief. And, when there was no fact find-
ing in the state action because the fed-
eral issues were deemed irrelevant, the
result is no forum at all. To accord the
full bar of res judicata, collateral
estoppel and inextricably intertwined
without explanation or discussion, as the
lower court has done, is to have the
federal court place its imprimatur on
this conspiracy. Because Leaf was denied
any opportunity to litigate her constitu-
tional issues in state court, none of the
issues can be inextricably intertwined.

U.S. v. Napper, 887 F2d 1528, 1534 (llth

28

Cir 1989).

Public Policy Requires That Certiorari

Be Granted

Although it was brought to their
attention, the opinion of the panel below
does not even mention the fact that
Leaf’s federal claims were ruled irrele-
vant in the state disciplinary action.
The integrity of the judicial process
requires that relevant and crucial facts
can not be ignored in the decision mak-
ing. The substance of due process is
betrayed when a court issues a decision
that may look rational and groundéd on
legal principles, but does not relate to
the facts of the case before it; facts
that were either ignored or deliberately
blocked from presentation. The public is
fooled because while the "reasoned" deci-
Sion is published, the factual record is

not.

The quality and honesty of judicial
decisions also affects the general pub-
lic. If judges can ignore the pertinent
facts put before them, what is the foun-
dation for due process and the rule of
law? The message needs to be sent that
courts can not neglect relevant facts to
an issue in order to find against a liti-
gant they may not like.

It is precisely because a state
court has such a strong interest in up-
holding the validity of its own bar dis-
Cciplinary rules and procedures and white-
washing the conduct of its own agents
that an independent forum in the federal
district court should be preserved. But
the broader problem reflected in this
decision is whether state courts can
absolutely close the federal courthouse
doors to any litigant by pretending to

rule “on the merits" of an issue when

30

tional issues. Federal defendants can
thereby deprive federal plaintiffs of
federal district court jurisdiction by
merely claiming to "rule" on the issue in
a state proceeding.

The result and the precedent set by
the Seventh Circuit decision in this case
does not reflect good law or practical
living. Because of the decision’s errone-
ous application of Feldman, the precedent
is set that an attorney will never be
able
to challenge the constitutionality of a
state bar disciplinary rule in federal
district court on the merits.

The unique circumstance of lawyers,
because they are supervised and disci-
plined by state courts (unlike any other
profession), is that any attorney disci-
plinary matters must involve a state

court, usually the highest court of the

31

because they are Supervised and disci-

plined by state courts (unlike any other
profession), is that any attorney disci
plinary matters must involve a state
court, usually the highest court of the
state. Therefore, abstention under Youn-
ger_v. Harris, 401 U.S. 37, 91 Sct 746
(1971) and inextricably intertwined will
usually be claimed to apply to restrict
federal court jurisdiction. If the Feld-
man rule that federal district courts do
have subject matter jurisdiction of gen-
eral constitutional challenges is diluted
or erroneously applied, such as in this
case, the result is that there will be
virtually no right to federal subject
matter jurisdiction.

In practice, the results of the
precedent set by the Seventh Circuit’s
decision is this case could lead to na-

tional judicial disarray as parties jock-

ary rule depends more on parochial whim

than law or merit. Following this prece-
dent, it is difficult to imagine any
circumstance in which a federal district
court would have subject matter jurisdic-
tion of a challenge to an attorney disci-
plinary rule unless the parochial agenda
willed it.

A further unique hardship on lawyers
is that since disciplinary rules are
promulgated by state courts, it leaves
the determination of the constitutional-
ity of a particular disciplinary rule or
practice in the hands of the very body
that created it. The normal checks and
balances intended by the separation of
powers between the branches of government
does not exist in attorney disciplinary
matters.

At first blush the complaints of a

suspended attorney about the disciplinary

33

powers between the branches of government
does not exist in attorney disciplinary
matters.

At first blush the complaints of a
suspended attorney about the disciplinary
rules may seem unimportant and insignifi-
cant. After all, must not the attorney
have engaged in some unethical behavior?
And, isn’t the code of professional con-
duct and rules enforcing it there to
protect the public? So what if attorneys
are second class citizens, as long as the
public is protected and the legal profes-
Sion is held to a high ethical standard?

But all of that rests on the pre-
sumptions: that the particular attorney
lis guilty of some wrongdoing; that the
disciplinary process is void of politics
Or prejudices; that a disciplinary rule
is for the benefit of the public and

promotes the quality of the profession as

34

opposed to protecting the legal institu-

tional turf, private interests, and sta-
tus quo; that disciplinary rules and
procedures are constitutionally valid;
and, that the same judicial body which
promulgates a rule can fairly evaluate
that rule’s constitutionality and the
conduct of its own agents. For example,
one ‘can legitimately ask: Does the chal-
lenged gag rule operate for the benefit
of the public or to protect lawyers? How
does the gag rule’s forbidding an attor-
ney who is being investigated from tell-
ing anyone, even his own clients, protect
the public? How can the public make an
informed judgment as to the effectiveness
and fairness of the attorney disciplinary
process when the vast majority of disci-
plinary matters are conducted in secret?

Many American citizens would be

stripped of the protection of the Bill of

35

Rights by state and federal judicial
rules forbidding an attorney from notify-
ing his clients of the secret state exam-
ination of their records.

From 1979 to 1992 there was an aver-
age of 1,111 complaints per year of ethi-
cal violations by lawyers made to the
Wisconsin Board of Attorneys Professional]
Responsibility. These complaints to BAPR
resulted in an average of 30.92 formal
actions per year (2.78%). Because of the
gag rule, all of the complaints that were
dismissed were done in secret; 97.22% of
them. The public has little information
on the claimed ethical] violations. More
importantly, the public has no idea of
why the allegations were dismissed in
97.22% of the grievances filed against
attorneys. Furthermore, formal action
(2.78%) does not necessarily mean public

exposure. There is a form of discipline

36

a enaiinemeeee —-——-

called a “private reprimand" which is
just that - private.

Granted, the interest of the states
in regulating lawyers is especially great
Since lawyers are essential to the dis-
tribution of justice, and are officers of
the courts. But the panel’s precedent now
gives the states absolute control of
lawyers and their and their clients’
access to federal district court. It
ignores the reality of the federal inter-
est at stake in the quality of the bar.
Often admission to or discipline from a
State bar precipitates parallel action
from the federal bar. Therefore, the
quality and degree of politicalization
of a state bar membership seeps into the
federal bar, locale by locale.

Making attorneys second class citi-
zens does not promote ethics and morality

within the legal profession. Indeed, it

37

has the opposite effect. It enables those
who are politically well connected and
malicious to ruin attorneys who are crit-
ical of the legal status quo and demand
legal reform.

At the risk of offending the quite
understandable "esprit de corps" of the
judiciary, one of the motives of BAPR is
to keep reform minded attorneys in line
by the abuse of institutional preroga-
tives and ungrounded irrebuttable pre-
sumptions of the correctness of the acts
of its agents.

Deprived of federal subject matter
jurisdiction, the local politicalization
of bar rules and their enforcement pro-
ceed virtually unchecked. While what may
happen to individual attorneys may seem
of little public consequences, but for
this Court’s ruling, attorneys would not

be allowed to advertise because such

38

creation of the independent counsel and
special prosecutor), the state judicia-
ries can not also impartially judge the
conduct of its own agents or the consti-
tutionality of its own rules and regula-
tions. To hold that an attorney has only
the option to apply to this Court by
petition for certiorari for review of the
state decision, statistically denies him
a right to a fair trial on any constitu-
tional issues, and denies this Court of
district inquiry, investigation and de-
termination.

Even if attorneys are second class
citizens, certain fundamental constitu-
tional rights should not be taken away.
An attorney should not be absolutely
precluded by doctrines of inextricably
intertwined, res judicata, collateral
estoppel, or Younger from any federal

district court jurisdiction regarding bar

39

An attorney should not be absolutely
precluded by doctrines of inextricably
intertwined, res judicata, collateral
estoppel, or Younger from any federal
district court jurisdiction regarding bar
matters. After all, these doctrines are
not constitutional principles. One’s
constitutional right to a fair forum
(whether state or federal) on claims of
constitutional and civil rights viola-
tions should not take a back seat to
court created doctrines which are de-
Signed to promote full faith and credit
and judicial economy.

It appears that the district court
and the circuit panel have been so preju-
diced by the antagonistic portrayal of
Leaf and Haynes by the Wisconsin court to
presume her out of federal court. The
panel’s decision comes close to command-

ing a finding that Haynes’ claims are

40

frivolous (even though he has had no
Opportunity to prove them and the court
had no record from the state or district
court), simply because they find them
difficult to believe (A-10). Here the
Wisconsin court has painted legal reform-
ers as criminals, under argumentum ad
hominum (when you can not disprove the
idea, attack the man), which have improp-
erly affected the district court’s and
the circuit panel’s perceptions of Leaf
and Haynes. Without being given the op-
portunity to disprove the falsehoods, the
presumptions should not be allowed.

For example, the circuit panel’s
statement in its decision, adopting the
Wisconsin court’s findings: "Leaf also
represented to four clients that Haynes
was her legal assistant, her assistant or
her legal associate - though there was no

employer-employee relationship between

41

Leaf and Haynes" (Decision, p 2; A-8).
This is misleading. Leaf has never re-
ferred to Haynes as her "legal associ-
ate". More importantly, the Wisconsin
rules of professional conduct do not
require a legal assistant to be an em-
ployee. Official comments to the rule
regarding responsibilities to nonlawyer
assistants state: "Such assistants,

whether employees or independent contrac-

tors, act for the lawyer in rendition of
the lawyer’s professional services."
(emphasis added) But by reporting this
portion of the Wisconsin court’s decision
as an example of Leaf’s alleged miscon-
duct, the Seventh Circuit has set the
precedent that it is a professional ethi-
cal violation for a lawyer to use a para-
legal who is not an employee of that
lawyer.

The Wisconsin court’s decision has

42

Leaf’s clients. Since Haynes was not a
party to the attorney disciplinary pro-
ceedings and Leaf was not present when
any of Haynes’ alleged misconduct took
place, it is an affront to due process to
make a factual finding incriminating
someone while at the same time handcuff-
ing the person trying to defend himself.
When allegation after allegation is han-
dled in this manner, it becomes extremely
difficult to unravel, especially when you
are limited to legal issues on appeal and
are deprived of any fact finding forum
whatsoever. A limited presentation of the
errors in the Wisconsin court’s decision
and the Seventh Circuit’s adopted find-
ings is contained in (A-146).

The dilemma is this. If Leaf is
restricted to applying for certiorari to
this Court from the Wisconsin court, she

is deprived of a fair fact finding forum.

43

ings is contained in (A-146).

The dilemma is this. If Leaf is
restricted to applying for certiorari to
this Court from the Wisconsin court, she
is deprived of a fair fact finding forum.
This Court does not hold de novo fact
finding hearings. If Leaf goes into fed-
eral court to try to prove how and why
the conspirators generated the falsehoods
(something she was prevented from doing
in the state action) she is thrown out
for seeking a review of the Wisconsin
court’s decision. Indeed, this is the
very quandary in which the state conspir-
ators intended to Place Leaf (and
Haynes). What greater damage to the repu-
tation of a Wisconsin lawyer then to have
falsehoods of ethical violations adopted
as factual findings by the Wisconsin
court? Leaf is in the undesirable posi-

tion of having to persuade the lower

44

court and now this Court of the correct-
ness of her legal position while not
being able to rebut the factual findings.
The precedent set by the panel’s decision
puts every lawyer, and citizen, in the
same dilemma; depending on whim is not
good law.

With the tremendous increase in the
criminal caseload facing the federal
judiciary in recent years, it is under-
standable that the mistreatment of one
attorney, depicted as evil and unethical,
creates little Sympathy. Good law is not
the only victim of this precedent. Unfor-
tunately, the integrity of the judiciary
also falls victim. The time available to
do justice continues to. shrink even
though many wrongs sought to be redressed
through civil action can be just as dam-
aging to the public as some of the worse

criminal acts.

45

Before exercising abstention, the

court must first consider whether the
federal plaintiff will have an adequate
opportunity to raise its constitutional
Challenges in the state proceeding.

Middelsex County Ethics Committee vy.

Garden State Bar Association, 457 U.S.

423, 102 SCt 2515 (1982). Middelsex holds

that there should be no abstention when
there is a showing of bad faith, malice,
Or harassment on the part of the state
court. What stronger showing of bad faith
then when the state, in order to trigger
abstention, tells the federal court that
the federal plaintiff can raise his con-
stitutional issues in the state action,
but when the federal plaintiff attempts
to assert his constitutional claims in
the state action, he is told that they

are irrelevant.

46

CONCLUSION

The determination of Leaf’s federal
constitutional and civil rights claims
are made by presumption without basis in
fact. The District Court and Circuit
Court both presume that the unsupported
and unexplained one-sentence statement of
the Wisconsin Supreme Court parroting the
referee as to no merit resulted from full
hearing when, as_ shown by BAPR’s own
transcripts, Leaf was not allowed to
raise any constitutional matters; the
irrebuttable presumption that the attor-
ney disciplinary action considered/acted
on a federal claim is clear error and
requires reversal to prevent the setting
of improper constitutional precedent for
all courts. Having denied the federal
plaintiff the opportunity to litigate her

constitutional claims in state court

47

where Leaf was forced to be, the state
Supreme court should not be allowed to
litigate by fiat of unexplained no-merit
ruling on unspecified constitutional
rights.

Federal courts are vested with a
"virtually unflagging obligation" to
exercise the jurisdiction given them

(McCarthy v. Madigani, US 112

ne /

sCt 1081, 1087 (1992). Judicially created
exception to federal jurisdiction are
just that, limited exceptions designed to
accomplish a limited purpose. District
courts have a duty to specifically "win-
now out" claims under such exceptions
from those ripe for federal jurisdiction

(Rogen v. Supreme Court of Virginia, 590

FSupp 102, 108 (ED Va, 1984). This deter-
mination is a question of federal law

(Levine _v. Supreme Court of Wisconsin,

679 FSupp 1478, 1485 (WD Wis 1988)). Any

48

exceptions to federal jurisdiction must
not be imposed absent evidence and hear-
ing proving the need for exception; ex-
ception by presumption violates constitu-
tional rights of due process and access
to the federal courts for federal issues.

For the reasons set forth above,
petitioner Linda A. Leaf, prays that a

Writ of Certiorari be granted.

April 8, 1993 Respectfully submitted,
R LINDA A. LEAF

a fy 4
Pry |
By: (Lahti tl bx
Charles L. Ollivier
Attorney for Petitioner
321 North Utica Street

Waukegan, IL 60085-4207
(708) 244-4280

49

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2338%3A1. Public record. Not legal advice.