Petition for Writ of Certiorari — Cohen v. Hurley (No. 84)

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Supreme Court of the United States

Octdber Term, 1959

No. QY a |

In the Matter of

ALBERT MARTIN COLLEN,

: Petitrouer,

Vis ;

DENIS M. HUN EY,

; > Ite spowde ni.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

AND THE SUPREME COURT OF THE STATE OF

NEW YORK, APPELLATE DIVISION, SECOND DE-

PARTMENT, JOINTLY OR IN THE ALTERNATIVE:

Trrepenke Krexpt.

. : Counsel far I he fifioner

1) Broad Street

New York 3» N.Y,

. _—

is :

<> - » Mm Cast Pease Ts s. Heckman St. \.Y¥.—-BEebman 3.2005

—____SUBJECT INDEX

esi PAGE

‘Crrations To Oprsions BeLow .......... 05 Jane at 1

JURISDICTION .:...... POET Te ree ee seenees . 2

Question PRESENTED ...........:eeecceeecess oe 2

d CoNSTITUTIONAL Provisiox [xvotven ees wus waa eee 2

SPATEMENT ...cccccss P= Wise eee 3 -

Reasons For GRANTING THE WRIT .......-.....00005 e

Porxt I—The question presefted is similar to the

_ question presented by* Konigsberg va. State Bar

of California, in which this Court recently granted

Ce ee Peer ee eT er Ty 7.

Porst II—The Court below has aida the question

presented in a way that is inconsistent in principle

with decisions of this BAUS cuvevcaucedes deers y.

Porst I1I—The decision below conflicts with recent

, decisions of the Supreme Court of Florida coseee ° 13

Point IV—This Court has been wens Sane recep-

tivé to cases in*which bar authorities have de-

prived attorneys or applicants of their rights .... 14

Post V—The question presented has not been re-

solved by this Court’s decisions in cases inv olving

public a SeCuskkevsereakeaeeanen ae’ 15

, Point V I—There are 38 attorneys whose rights to

4 practice will effectively be determined by the out-

come of this case and numberless attorneys and |

others who will one day feel its impact .......... 18 -

CONCLUSION .......000: eaewes Sravieicdeeines eae ee

+ e ; ; ' PAGE

APPENDIX:

ae A—Opinions-of Appellate I Division, ‘Second —De-

ans B—Grant of ve of Disbarment by Appellate

‘ , Division peinaceewabcaaeee base weueass Secure 44

(—Opinions of Court of Appeals of New York .. 47

D—Amended Remittitur of Court of Appeals eas 63

E--Order of Disbarment ...... eeesepcevescctce , OB.

. TasLe or AvTHORITIES

Anonymous v. Baker, 360 U. S. 287 ............. «. 3,10

. Beilan v. Board of Education, 357 U. } ae 14, 15

Cammer ‘v. United States, 350 U. S. BS aap wena a are 15, 17

Carter, In re, 177 F. 2d 75 (DiC. Cir), cert. denied :

Es GE Ua had vase lee tosskhcaesh weenrunaes 10

Carter, In re,.192 F. 2d 15 (D.C. Cir. ), dort. denied

WU is Mec okahaccacccceuucunces. aaeauce 8, 10

Florida v. Sheiner, 112 So. 2d 573 v.02. ees tee eee 14

Garenne, Bs waree.-7h OW. © Gabe. «x oc ws csccccenece 10,16

Goldsmith v. Board of Tax Appeals, 270 U. S. 117.. 10,15

Holland, In re, 377 Ill. 346, 36 N,E. 2d 543 ........ 14 {

Integration Rule of the Florida Bar, In re, 103 So.

SUE 406 cin use Ge dale cd tie an euss suk ena receeuik 13

Konigsberg v. State Bar of California, 353 U. S.

BE Scutiks O55 a cau Kei ee ceeonans 7, 8, 10, 13, 14, 15, 16

Konigsberg -v. ‘State Bar of California, 52 Cal. i oa

769; 5 a P. 2d 777, cert. granted 362 U. 8.910. 7,8

“iii

. PAGE

Laughlin v.-Wheat, $5 F. 2d 101 (D.C. Cir.) ..... ee

Lerner v. a) £ ee Ree eee 6k ee

~ Levy, Application of, 348 U.S. 978, reversing 214

F. 2d 331 (5th ME aecctusetuecenceacedceuedass 15

Los Angeles County Pioneer Society. Matter of, 217

eh Fk 8 ee ee ere 10

Nelson ait-Globe v. County of.Los Angeles, 362 U.S.

D svovecteuns Ucesensbecen bub eoukesese sade saats 1)

Parker v. Lester, 227 F. 2d 708 (9th Cir.) ......... 10, 16

‘Quinn v. United States, 349 U.S. eS ng “Wh

Robinson, Ex parte, 86 U. S. 505 ............0.. .» 1018 .

Schware v. Board of Bgr. Examiners, 353 U. S. ,

OO cnc deta ken alan en nace caee 10, 12,15

Secomb, Ex parte, 19 How. (U.S.) 9.2... 000.000. 15

Sheiner v. Florida, 82 So. 2d 657 ....... Veaeeeceee 13

Slochower v. Board of Education, 350 U.S.551. 14

Summers, In re, 325 U. S. 561 .°....... 22.2003. y- -15

UUmann v. United States, 350 U.S. 422 ............ l4

United Public Workers v. Mitchell, 330 U.S. 75 .... 17

United States v. Hicks, 37 F. 2d 289 (9th Cir.) .... - 10

. b

> *.

' IN THE

| Baieme Court nf the United Bate

P _ October. Term, 1959

. 2 ap.

_ dn the Matter. of

ALBektT Martin Cones, $

Petitioner,

Be .

Denis M. Hurtey,

a Respondent.

»™

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

AND THE SUPREME COURT OF THE STATE OF

NEW YORK, APPELLATE DIVISION, SECOND DE-

PARTMENT, JOINTLY OR IN THE ALTERNATIVE

Petitioner, Albert Martin Cohen, respectfully prays: for -

a writ of certiorari to review’ the final judgment of the

Court of Appeals of New. York, affirming an order of the

Appellate Division, Second Department, permanently dis- ~~

barring petitioner from the practice of the law.

Citations to Opinioris Below. ~——

The majority, coneurring and dissenting opinions of the

Appellate Division, Second Department are reported in. Of

A. D. 2d 436; 195 N. Y. S. 2d 990, and are printed as Ap- —

pendix A hereto, infra, pp.. 20-43. The Appellate Divi-

sion’s stay of its order of disbarment pending final .judg-

ment by the Court of \pre vals of New York is reported

in.10 A. D, 2d 581; 196 N. Y. S. 2d 277, and is printed as

Appendix B heretd; tnt ra, pp. 44-46. The majority und dis-

seuting opinions of the Court of Appeals of New York ate

not yet offieially reported and are printed as Appendix .C

hereto, infra, pp. 47- 62. The Court of Appeals’ remitfitar

to the Appellate: Division is not officially reported ‘and is

printed as Appendix D hereto, infrg, pp-63-64. The order

of disbarment, dated December 31, 1959 is printed as Ap-

pendix E hereto, infra, pp. 65-67).

_ Jurisdiction.

_ The judgment of the Court of Appeals of New York was

entered on April 1, 1960. The jurisdiction.of this Court is

invekca under 28 U.S. ©. See. 1257. (3).

Questions Presented

Ww hether a state may, consistent with the. due esti of

law guaranteed by the Fourteenth Amendment to the

United States C onstitution, ‘permanently disbar an attorne Vv

in the absence of: any ev idence of professional, misconduct

or bad character, but solely because he refused, in good

faith and relying on. the advice of competent counsel, to

answer questions before a general judicial inquiry ini re-

liance ow his privilege against self-incrimination.

Constitutional Provision Involved —

etc XIV, United States Constitution, Section. 1,

( ‘lause 2 2: ,

‘nor shall any State deprive any person of

- liberty, or property without due process of law

Aad

“-«

Statement

— On January 21, 1957, the Appellate Division, Saini De-

. partment, ordered a general judicial ingpiry (hereinafter

called the ‘*Inquiry’’) intoesolicitation ayd related practice

in the County of Kings, New York (®. 23-28). From ‘March

1957 to June 1958 the Inquiry’s staff examined. informally

about 2,500- persons. See Anonymous v. Baker, 360 U. S.

287, 292. Subsequently, petitioner, in response to subpoenas

served upon him, appeared before the Inquiry on October

* 28, 1958 before. Mr. Justice Arkwright and on May a, 1959

hefore Mr. Justice Baker (R. 29, 37).

During the course of his interrogation, petitioner was

assured by the Inquiry. that he had not been called as a.

prospective defendant or respondent (R. 30, 43); that the ~

‘Inquiry was not an adversary proceeding (R. 43); and that,

he was not being charged with having committed any of

the illegal practices with which the Inquiry was concerned

‘R. 42). However, he was. informed by. theAnquiry’ = in-

terrogator that, ‘* . . we have information that indicates

your participation’ in professional misconduct . . < °° (R.

43), and the-nature of many of the questions asked con-

. vexed the suggestion that statements adverse to petitioner:

had.been made by one or more of the numerous unidentified!

: witnesses’ prev iously examined by the Inquiry’s staff.

Nev ertheless, no evidence of petitioner’s professional mis-

conduct was ever produced, no further deseription of the

. allegedly adverse information was ever prov ided, and no

soureé was ever identified, Thus, petitioner had no op-

portunity to confront or cross-examine his alleged accusers.

This was the character of the proceeding in which peti-

tioner heeded his counsel's advice to invoke his constitu-

‘\ a

- 4 x os a

i : : ‘

tional privilege against’ self-incrimination,* Indeed, ander

these adverse circumstances, petitioner’ answered a number

of. questions and indicated a willingness to’ answer. more,

but yielded to his éGunsel’s' admonition to refrain from"

doing so lest he waive his constitutional privilege. Thus, at

R. 58, : : , |

Toe; “Mr. Price: I told you not to answer. Yon said

you wanted to answer, -so go ahead and answer.,.~

The Witness: “I have to take-my counsel’s advice.

If I answer it, you said it may be deemed a waiver.

Mr. Price: That is why I said. make tie -same

answer. e- 2 4: ‘ |

‘The Witness: Well, then specifically. upon my

eounsel’s advice, the answer is the same.’’ 7

itis conceded that petitioner's assertion of the privilege

was neither contumacious nor contemptuous, but was in

good faith (Appendix A, infra, p. 20).

Notwithstanding petitioner’s unblemished record of

thirty-seven year's at the bar, respondent, the Inquiry’s .xt-

torney, petitioned the Appéllate Diyision on July 9, 1959, °

to discipline petitioner solely for his refusal to waive his

privilege against se]f-incrimination by testifying (R. 7, 19).

No charges were niade onthe basis of the allegedly ad-

verse evidence which respondent claimed to-possess.. In his

brief before the Appellate Division, respondent indicated

that it was cheaperSand quicker to proceed is he did than.

to incur the ‘‘expenditure of time, energy and money’’ (Re-~~ -

* In the course of the Inquiry, petitioner for the same reayon refused ‘

to produce certain records demanded by a subpoena duces tecum.

The issues. raised by this refusal have been treated throughout

these ‘proceedings as identical to those raised by the refusal to

testify. : . ‘

‘

e ’ ae

spondent’ 's Brief; p. 20) that wou'd be entailed in proving.

a case of professional’ miseonduct based on this alleged

evidence, Accordingly, no hearing was held on the charges .

of professional , misconduct intimated by respondent, and -

the sole issue before the Appellate’ Division was whether

the uncontested fact ‘that’ petitioner had refused to waive

his constitutional privilege by testifying warranted disci-

plinary action. '

Petitioner; on July 31, 1959, in his Answer to’ Respon-

’ dent’s Petition, explicitly asserted that disciplinary action -

would violate his rights under the due process-clausé of the

Fourteenth Amendmént to the United States onstitution.

Thus the Answer stated in part (R. 84-85) :— - =

9 “Respondent, Alleges. Affrmatively :—

“that the impusition of any ‘discapline upon

respondent for asserting said privilege against self-

incrimination would be a denial to him of due process’

in violation of his rights under . . . the 14th Amend-

- ment of the Constitution of the United States...”

, “The right to practice law is a right of liberty and

property protected by. the Fourteenth Amendment.

to the Constitution of the United States.*’

The Appellate Division, Second Department, one justice

dissenting, rejected petitioner’s contention and held that

his refusal to answer, even though Based | on his reliance, in

good faith and on advice of competent cour el, on his con-

&titutional privilege against self-incrinrination, constituted

professional misconduct warrauting permanent disbarment

(Appendix A,. infra, p. 20). The order of disbarment

_ was entered on December 31, 1959 ( Appendix E, infra, p

. 65). On January 21, 1960,-the court, expressly stating that

constitutional questions were involved in this.case, granted | o

* petitioner’s motion staying the disbarment order pending

appeal and final determination of the‘issues by the Court

of Appeals (Appendix B, infra, p. 44).

On April 1, 1960, the Court of Appeals, « one judge ¢ dis-

senting, Mirmed the disbarment order below, noting that

petitioner had urged that he had been deprived of his sights

without due process of law {Appendix C, infra, p. 47}. On

April 21, 1960, the Court of Appeals amended its remittitur

to the Appellate Division, Second Department, to state (Aj-

‘pendix D, infra, p. 63) :—

‘*Upon the appeal hereid’there were presented and

necessarily passed upon questions under the Con-

stitution of the United States, viz.: ‘‘The appellant”

asserted that his disbafment based solely upon his

reliance in good faith on his constitutional privilege

against self-incrimination in a non- adversary pro-

ceedin= without any substantive charges of miscon-

duct being made or proven against him at a full heur-

ing where the .right of confrontation and cross-ex-

amination of witnesses and fulleand ample defense

would be available was violative of due. process of ©

law under the Fourteenth Amendment, and that his

disbarment based on his assertion in good faith of

- his constitutional privilége against self-incrimina-.

tion which the Appellate Division held constituted a :

.refusal'to cooperate with the Court and a breach of

the Canons of Ethics violated his guararitees of due -

process ‘of law under the Fourteenth Amendment.’’

The Court of Appeals held that the rights of appel-°

lant under the Fourteenth Amendment Ifad-not been

violated.’’ ‘

¢ REASONS FOR GRANTING THE WRIT —

iia 2

POINT I

The question presented is ‘similar to the question

presented by Konigsberg v. State Bar of California, in

which this Court recently granted certiorari.

After this Court’s decision in Konigsberg v. State Bar

of California, 353 U. S. 252, the Supreme Court of ‘Cali-

fornia held that: the California Committee of Bar- Exam-

-. iners was justified in refusing to recommend Konigsberg

for admission to the bar solely because Konigsberg’s re-

fusal to answer the Committee’s questions ‘‘ revealed a lack

_ of candor which constituted unfitness’. 52 Cal. 2d 769;

344 P. 2d 777. This Court again granted certiorari on

March 7, 1960 so that it might determine whether the action

‘ taken deprived Konigsberg of liberty and property with-

out the due process of law guaranteed by the Fourteenth

Amendment to the United States Constitution (362 U. S.

‘910). Here the Court helow affirmed the disbarment of

petitioner solely ‘onthe ground that his refusal to answer

. the questions put in a gene ral judicial inquiry. breached his °

duty: to ‘‘be candid and frank with the ‘court at all times”’

(App. C). : oo

Thus in Konigsherg v. State Par of California, 52 Cal.

2d 769, 344 P. 2d 777, the court below held that a refusal

to answer, disqualified an applicant for admission to the

Bar, whereas here the court below held that a refusal to

answer is a per se disqualification to.continue the. practice

of the law by one already, admitted. However worthy an°

attorney may be, however unassailable his character, the

California and New York courts would deny him member-

ship i in the Bar solely for refusing to answer que stions. pa

“to him, in reliance upon ( ‘onstitutional guarantees against

self-incrimination.

To be sure, there are differences between Konigsberg v.

State Bar of California, supra, and the instant ease, but

none detracts from the importance of the issue presented

here. Indeed, the differences are all in the direction of

greater importance here. Whereas Konigsberg was denied

admission to the bar, petitioner was disbarred after thirty-

“seven years of practice, during which time’ his integrity

was never questioned. As the Court of Appeals for the

District of Columbia Circuit said in, Jn Re: Carter; 17

F’. 2d 75, 78; vert. denied, 338 U. S. 900:

**An applicant for admission to the bar must sat-

isfy the authorities as to his moral character, and

custom has: established confidential inquiry as an

element pf that procedure, But when he has been

admitted, his removal from practice is a disharment,

about which elaborate procedural requirements-are

thrown. Such removal after admission is not a mere

_ denial of an application for admission.. The seme

is true in respect of licenses to do business i in many

forms. Prior to grant, many processes are ayailable

- for inquiry and information. But, once granted, the

license becomes a right, and due process of law inust

be ‘followed to achieve deprivation.”* -

‘If. there is an important federal question presented by the

denial of. Konigsberg’s application for admission to the

har, @ fortiori the ynestion presented by petitioner’s dis-

‘ barment is vitally import nt. y a ee ‘

. } 7

; ae <

The cases also differ on the ground relied upon as justi-

fication for refusing to answer. Konigsberg ‘refused to

answer on the ground that the inquiries infringed rights

» guaranteed him by the First- and Fourteenth Amendments ;

| petitioner on the ground .that- his answers might tend to

incriminate -him. This difference, too, merely serves to

| emphasize the importance of the question presented here.

If it is vjtal to determine whether a state denies due process

‘of law when it closes the bar to an applicant who reryses

to answer for a reason not yet held privileged, how much

more important it is to determine whether a state denies

due process of law when it disbars fora concededly priv-

— refusal to answer. ee

‘The cases differ in one more redpect. ‘Konigsberg’ Ss re-

fusal occurred in the course of a hearing, the only purpose

of which was to pass on Konigsberg’s - qualifications for

adthission to the bar. Petitioner’s refusal oceurred during

a general inquiry to which he was not a party.

- The potential impact of the decision of the court below

is thus much greater than that of the California court’s

decision. It would seem, for example, to gxtend to an

attorney's refusal to give -evidence before a grand jury.

POINT Il

The Court below has resolved the question pre-

sented in a way that is inconsistent in epee ‘with

decisions of this Court.

It has long been established that the right to practice a

profession or to pursue a,particular line of private employ-

ment is entitled to constitutional wrotection and may not be

taken away except by a proceeding that comports with all

the essentials of procedural due process. E.g., Ex parte

Robinson, 86 U. S. 505,512; Ex parte Garland, 71 U.S

339, 379; Goldsmith v. Board of Tax Appeals, 270 U. S.

117, 123; Parker v. Lester, 227 F. 2d 708, 717 (9th Cir.);

Matter-of Los Angeles County Pioneer Society, 217 F. 2d

190 (9th Cir.) ; In Res Carter, 177 F. 2d 75, 78 (D. C. Cir.)

cert, denied 338 U. S. 900; In Re: Carter, 192 F. 2d 15, 17 °

(D. C. Cir.) cert. denied 342 U.S. 862; Laughlin v. Wheat,

95 F.2d 101 (D. C. Cire); United States vi Hicks, 37 F.2d.

289 (9th Cir.) ; ef. Konigsberg v. State Bar of California,

393 U. 5. 252: Schware v. Board of Bar Examiners, 353 '

U. S. 232, 238. —

; . ‘

These cases make it clear that the mandate of due process

requires a judicial type hearing at which the party whose .

rights are being détermined is fully apprised of the charges

against him and the evidence to support those charges; is

. permitted toyconfront and cross-examine witnesses; and is

affordéd an opportunity: to offer evidence in explanation,

rebuttal or mitigation. Consequently, if, in the absence of

the" judigial inquiry, respondent had sought to have peti-

tioner -disbarred, he would have been obliged to make

‘ ¥ specific charges of professional misconduct, present evi-

dence in. support of those charges, permit petitioner to

cross-examine witnesses and present = of his own,

and, finally, respondent would have ‘had! to sustain the

burden of proving the charges.

Instead respondent employed a procedural short-cut that

effectively deprived petitioner of all of these’ safeguards.

Respondent interposed a preliminary inquiry* that was

* The inquiry was a “preliminary ineaihion, without adversary

parties”. ee «. Baker, 360 U. S. 287, 291,

ML i

_ plainly intended to ‘present petitioner with a Hobson’ ~

choice. Without providing pefitioner with any specific

charges, indeed without warning him at all that he would

he called upon to defend himself and afterinforming peti-

tioner that he had not been summoned in the roje of a

: prospective defendant, respondent proceeded to question.

petitioner in a way that clearly -belied this disclaimer.

Eventually. respondent went so far as to inform petitioner

that fhe. Inquiry had information indicating professional —

misconduct on his part. But no such information was pre-

sented and petitioner was left‘in the dark as -t6é the source:

of the information, its nature, and whether any steps had

been taken to test its credibility. Petitioner. was thus given

the option of meeting an undisclosed case against him or

of following fhe dictates of prudence and asserting his

privilege against self-incrimination. When he ‘naturally

followed the advice of his attorney to take the latter course,

respondent seized upon this as a substitute for an affirma-

‘tive demonstration that petitioner had been guilty of pro-

fessional misconduct and instituted disbarment proceed-

ings. 6

If the judgment below is permitted to stand, it will serve

_as a mode! for thosé who would evade constitutional safe-

cuards which this Court has been at great pains to pre-

serve, The new procedure will be simply : summon: the

person whose license to practice law—or ‘any other license

‘for that matter—is sought to be revoked; make vague

‘threats about possessing adverse information so that the

target will be moved to assert his privilege against self-

incrimnination ; then revoke the license because the. licensee

has failed to cooperate with the investigation. In this way

the inconvenience of presenting a case against the intended

. yy

12 owes gi

. = nl .

__————-vietim’can safely be avoided. That this is not an overdrawn

“3 picture of what occurred below is best indicated by respon-

« dent’s statement.in his brief before the Appellate Division

that it was cheaper and quicker to proceed: in this manner |. |

than to incur the “expenditure of time, energy and money "’

that would be nécessary to make a case of professional mis-

conduct against petitioner. te

In dissent in the Appellate Division, Mr. Justice Klein:

feld indicated his belief that the course followed in this case

denied petitioner due process of law. He said:

“If the respondent i is guilty of any violation of the

laws, rules or regulations appertaining to the con-

duct of attorneys, and this is proved in an adversary

proceeding against him after he has had the right to

confront \his accuser, cross-examine witnesses, call

witnesses on his own behalf, and the ebenefit of all

: the other safeguarde of due process, then he may be

disciplined as the court deems proper.. Absent such

* Bi ‘ocoedihgs, the respondent has, been denied his

rights under the. constitution of this state and of the

United States."

And Mr. Justice Frankfurter’s statement. in his cancurring

opinion in Schware vy. Board of Bar Examiners, 303 U.

232, 245, seems previsely in point: ~-

. es Refusal to allow a man to qualify himself for the

° profession on a wholly arbitrary standard or on a

consideration that offends the dictates of veason of-

fends the Due Process Clause. Such is the ease

here.’’

POINT Ill

The decision below conflicts with | recent decisions

of the Supreme Court of F lorida.

h. Sheiner v. Florida, x2 So. 2d 657, the Supreme Court

of Florida reversed a judgment of disbarment based solely

on an attorney's refusal to answer questions on the ground

that the answers might tend to incriminate him. The court

held ;that to disbar an attorney for refusing to answer

because of his’ privilege would deprive him of due process

- of law. The court thus stated (82 So. 2d, at 661) :—

‘*The last cited case [Matter of Murchison, 349

U. S. 133] and the Peters Case [Peters v. Hobby,

349 U. S. 331] are pertinent here for the emphasis

they place on confrontation, cross-examination and

fair trial as ingredients of due process. Confronta--

tion and cross-examination under oath are essential

to due proctSs because. it is the means recognized

” ‘by which wetest the probity of the evidence and

eliminate that which is trumped up or of. doubtful

veracity. The ‘faceless informer’ theory of proof

‘should never be substituted for confrontation and

cross-examination. in a trial where the end result is

to deprive the accused of one of his most ‘precious

assets—-the privilege to practice laws"’

Subsequently, the same cgurt rejected efforts to amend

the rules-dealing with the practice of law. in Florida to

permit disbarment for invoking the privilege against self-

- incrimination. It held that since the innocent may invoke

_ this privilege, ‘‘its exereise may not he considered a breac ‘hi

'. of duty to the court’’. Jn Re: The Integration Rule of the

’ Florida Bar, 103 So. od 873, 875. The Court therein relied

on this Court’s opinions in Konigsberg v. State Bar of ( ‘ali-

a “ ‘-

fornia, 353°C. S. 252; Ullman vy. Enited States, 320 U.S.

~422;,and Slochower v. Board of Educ ation, 300 U.S. dal.

See also Quinn ¢. United States, 349 U.S. 155.

Signific antly, on Max 29, 195 oY, after considering the ap-

plication of this Court's decisions in Lerner v. C asey, 397

~ ULS. 468 and Beilan fer of Education, 397 U.S. 399,° -

upon which the courks below relied heavily, the Supreme

Court of Florida reaffirmed its devision in the. earlier

Sheiner case to frustrate another attempt to disbar Sheiner

for his invocation of the privilege. Florida v. Shi iner, 112

So. 2d 573. Cf. In Re: Holland, 377 Ul. 346, 36 N. BE. 2d 543,

where the Supretie Court of Illinois held on state grounds

that the suspension of an attorney for’ assertion of. the

privilege constituted error, ¢

The position of the Supreme Court of Florida stands as-

‘the direct antithesis of, and in square conflict with, that of

the Court of Appeals of New York in the instant case. It is

just impossible to reconcile the two decisions.

POINT IV

’ This Court has been persistently receptive to cases

in which. bar authorities have deprived attorneys | or

applicants of their rights. —

This Court has repeatedly demonstrated its concern with

the question of fairness in the admission and exclusion of

members of the bar by granting writs of certiorari in such

cases, - E.g., Nonigsherg v. State Bar of California, 353

U. S. 242, cert. regranted, March 7, 1960, 362 1. S. mer

* Prior to its final decision, the Supreme Court - Florida, on July

24, 1958, had ordered further argument limited to the application

- of Beilan and L ermer. .

ew ~~

15 ee ea

_ Schware v. Board of Bar Examiners, 353 U.S, 233; Appli-

cation of Levy, 348 U.S. 978, summarily reversing 214 F.

‘2d 331 (Sth Cir.) ;Jn Re: Summers, 325 U. S. 561, Cf. Ex

parte Garland, 71 U.S. 339; Ex parte Robinson, 86 U.S:

305. a agit |

That concern is- most£appropriate. History is replete

‘with the names of intrepid attorneys who have championed Re

causes w rhich at the time were unpopular in order to per-

petuate the cause of freedom and democracy, The nation

must be assured that,

. the rights and independence of the bar may

be as s scrupulously guarded and maintained by the |

court, as the rights-and dignity of the court itself’. -

Ex parte Secomb, 19 How. (U. S. 9).

As this Court stated in Konigsberg v. State Bar ih Cali-

fornia. 353 U. 8.2 252, 273: ;

a “A bar composed of lawyers of good charac-

ter is a worthy objective but it is unnecessary to

sacrifice vital freedoms in order to obtain that goal.

It is also important both to society and the bar itself

that lawyers are unintimidafed—free to think, speak,

and act as members of an Independent Bar.’

See also Cammer v. ee States, 350 U. S. 399, 406- 407.

POINT Vv

The question presented has not bnew vensived by this

Court’s decisions in cases involving public employees.

The court below relied in part upon this Court’s decisions

in Lerner v. Casey, 357 U. S. 468; Beilan v. Board of Edu-

ration, 357 U. S. 399; and Nelson and. Globe.v. County of

Los Angeles, 362 U. S. 1, decided February 29, 1960. The

”

import of thest cases,.all-decided by ‘a sharply: divided

court,‘is, that j a state may constitutionally discipline a pub-

lic employee paid by publie funds for refusing to ‘ answer

questions relevant to his employment even though the re-

fusal is based upon his privilege against self-incrimination.

. That these cases do not foreclose the question presented

is most clearly ‘indicated by this Court’s later grant. of cer-

tiorari in Konigsberg v. State Bar of California, 362 U.

910, after the California Supreme Court (52 Cal. 2nd 763)

_relied upon precisely 4 the same line of authority relied upon

by the courts below, viz the Lerner and Beilan cases,

Mobeover, this Court has never suggested that a state

possesses the same power over private citizens that it does

over public employees. Quite the contrary, the difference

between the two has long been recognized. For example, in

Er parte Garland, 71 U.S. 339, 378, this Court said:

The profession of an atforney and counselor is

not like an: office created by an Act of Congress,

which, depends for its continuance, its powers, and

\_ its emoluments upon the will of its creator, and the

, possession oF which may be burdened with any con-

te ditions not prohibited by the Constitution.”’

In Saste v. paren 227 F. 2d 708, the Court of Appeals

for the Ninth Cireuit, in holding unconstitutional a security

program whieh ‘summarily: prevented merchant seamen

from carry ing 6n -their vocation, stated (222 F. 2d, at p.

717): | |

“The liberty i follow their chosen eniploy ment is

no doubt a right more clearly entitled to constitu-

tional protection, than the right of a government

employee to obtain or retain-his job. : -Whe plain-:

‘

17.

tiffs here are citizens of the U nited States and the

rights and liberties which they assert relate not to, .

e any public employment present or prospective, but

to their right to pursue: their chosen vocations as

merchant seamen.’

Indeed, this Court in Cmmer v United States, 350 U.S.

299, 406-407, quoted with approval the statement that an

attorney has as Basses a right to the exercise of his pro-

fecclon,”.

‘* | . as the mechanic has to foliow his trade, or

the merchant to engage in the pursuits of commerce |

. The public have almost as deep an interest in

the independence of the bar as of the bench.’’

Nor does an attorney's role as an officer of, the court make

him the equivalent of a public servant. In the Cammer’

ease (350 U. S. at 405) this Court pointed out that, unlike —

other court officers such as. marshals, bailiffs or clerks, *

‘« . . a lawyer is engaged in a private profes- °

sion, important though it be to our system of justice. :

In general, he makes his own decisions, follows his

_own best judgments, collects his own fees and runs

his own business.’ =

Surely United. Phblic Workers v. Mitchell, 330 U. S..

demonstrates the“ distin tive status of public sree ees.

Although that case held that the United States may con-

stitutionally, discharge an employ for taking an active

part in political activities, there can no doubt that it

would be unconstitutional to: digbar an attorney for the

same reason. a | oa os

‘ 18

Kar pty ' POINT VI

‘There are 38 attorneys whose right to practice will

effectively be determined by the outcome of this case |

~ and numberless attorneys and others who will one day

‘feel its impact. |

Petitioner is not the only attorney who was sufficiently

intimidated by the Inquiry to assert his privilege against

. self-incrimination. There were some 38 others (Respon-

dent’s Brief before Appellate Division, p. 20).. This peti-

tion then, although the petition of but one attorney, vitally

affects the professional status of many.

But even if petitioner stood alone today, there can be no

doubt that the principle established by the judgment below

«will create pienty of company for him tomorrow. .On the

narrowest construction of the opinion below, any attorney .,

who refuses to answer questions in reliance on his privilege

against self-incrimination inthe course of an inquiry into

professional activities will hereafter be subject to disbar-

ment. And it may he. that the court below meant to inform

the bar that any member will lose his right to practice if

he relies upon his privilege against self-incrimination no |

matter what the nature of the proceeding.” Indeed, the

court below did not even limit its proscription of refusals

to those based upon the privilege against self-incrimination.

* Whatever the precise scope of the halding below, it is

plain that if it is permitted to stand, we ean look forward

to the day’when states will seek to deny and revoke licenses

in all sorts of occupations because licensees have refused

to cooperate with inquiriés looking into matters relevant

to the licensed occupation. In this connection, it is worth

> LY

rimninliite the enormous range éf state licefising avtivi-

. ties. Are the liv elihoods of physicians, bail bondsmen, hair

dressers, morti¢ians, restaurfnt ow ners, taxicab drivers

and many, many others all to be constitutionally vulnerable

to the kind of arbitrary treatment petitioner has received?

If certiorari is granted in this case, it is to be hoped that -

this Court will never again have to. decide that question.

ae ‘CONCLUSION :

For the foregoing reasons, this petition for a writ

of certiorari should be granted.

_ Respectfully submitted, <

TuroporE KreNnpL

= % Counsel for Petittoner

15 Broad Street

New York 5, N. Y.

_Bexpéck, Justice. ~ '

+ eee

¢ :

APPENDIX A =

Opinions of Appetiate Division, Second Department

Supreme Court, Appellate Division, Second Department, °

‘ -Dee. 31, 1959.

> -

‘In re Avgert Martin Coney, an Attorney, Respondent.

Denis M. Hurley, Petitioner,

a! 2 eee

More than 40 years ago the eminent jurist, Chief Judge

Cardozo, declared : ‘‘Membership in the bar is a privilege

burdened with conditions. A fair private and professional

character is one of them. Compliance with that condition is

essential at the moment of admission; but it is “equally es-

sential afterwards * * *. Whenever the condition i is broker

the privilege is lost. To refuse admission to an unworthy

applicant is not to panish him for past offenses. The ‘exami-

nation into character, like the exainination into learning, is

merely a test of fitness. To strike the unworthy lawyer from

the roll is not to add to. the pains and penalties of crime.:

The examination into character i is renewed; and the test of

fitness is no longer satisfied. F or these reasons courts h: ive.

_ repeatedly said that disbarment is not punishment’? (Mat-

ter of Rouss, 221 N. Y. 81, 84-85, 116 N.'E. 782, 783).

On the ground that respondent, a member of the Bar since

4922, by his conduct has broken the condition, this proceed-

Ing. is brought to declare that he has lost the priv ilege of

membership in the Bar.

Appendix A—Opinions, of Appellate Divisions:

Second Department

The genesis of this proceeding i is a judicial inquiry un-

dertaken by direction of this court. Advised by the Brook-

lyn Bar Association’s petition {presented after its own

inv estigation) of serious abuses and unethicaP practices by’

attorneys in Kings C dunty with respect to theit procure-

ment of negligence cases on a contingent basis and with

respect to their prosecution of such cases, this court in the

exercise of its inherent and statutory pow er and duty (N. Y.

Const. Art. VI, §2; Judiciary Law, § 90; People ex rel. -

Karlin v. Culkin, 248 N. Y. 465, 162 N. E: 487, 60 A. L. R.

851), ordered a judicial inquiry. The inquiry was ordered

with respect to the alleged illegal, corrapt and unethical

practices and with respect to the alleged conduct prejudicial |

to the administration of justice by attorneys. and others

acting in concert with them, in Kings County. The purpose, ,

of the inquiry is to expose all the evil practices with a view

to enabling this court to adopt appropriate measures to

eliminate them and to discipline those attorneys found to

have engaged in them.

The existing conditions i in Kings County as a result of .

the abuses in the handling of negligence cases by attorneys

_is well portrayed by Chief Judge C ardozo in his summary

of the causes leading to the 1928 ‘‘ambulance easing’ in-

_ vestigation (People éx vel Karlin v. Culkin. supra, 248

-X. Y, at page 468, 162 N. E. at page 488). Unfortunately,

the evils of yesterday have returned to plague us today.

In fairness and-in justice to: the legal profession, how-

ever, we state at the outset that the number of ‘lawyers who

appear to be involved iv the alleged unethical practices is

Appendix A—Opinions of Appellate Division,

_ Second sparen .

oy minnie 3 int 3 relation to the total number of honorable practi-

’ tioriers at.the Bar i in Kings County.

During the period 1954 to 1958 inclusive, pursuant to the

ules of this court, the respondent, who apparently spe-

cialized in negligence cases, filed 228 statements as to re-

tainer in his own name and 76 such statements in a firm

name, thus indicating that he and his firm haé@been re tained

ona contingent basis:in a total of 304 negligence cases. He

was duly subpoenaed to testify and to Sroduce his records

with respect to such cases before the Justice designated by

this court. to conduct this judicial inquiry at an additional

Special Term. On the advice of counsel, respondent invoked

his constitutional privilege against self incrimination and- *

refused on that ground to answer ‘pertinent questions and

to produce his records.

It is not disputed that respondent has asserted his con-

stitutional privilege i in good faith. Nor is it disputed that

the questions put and the records soyght come within the

| scope of the i inquiry: and that the information sought to be

elicited would be relevant. Indeed, these facts are virtually

conceded by. the parties to this proceeding.

The petition now presented to the court seeks to disci-

pline respondent, not on the ground that he has asserted his

constitutional privilege, but on the ground that his refusal

to answer relevant. questions and his refusal to produce

relevant records ‘‘are in disregard and in violation of the

inherent duty and obligation of respondent as a member of

the legal profession’’, in that such refusals (a) are ‘‘con-

trary to the standards of candor and frenkness’that are

A ppeniix A—Opinions of Appellate Division,

Second Department

required ° ** ofa lawyer to the Court’, ( b) are ‘‘in defi-

ance of and flaunt [flout] the authority of the Court to

‘inquire into and elicit information within respondent's,

knowledge r-lating to his condact and practices as a law-

yer’, (c) have ‘‘hindered and impeded the Judicial In-

quiry’’ which had been ordered by this court, and (d) have

resulted In respondent's withholding ‘‘vital infosination

bearing upon his conduct, character, fitness, integrity, trust

and reliability as a member of the legal profession”’.

Thus, the sole question for our determination is whether

the respondent, by reason of his refusal to answer relevant

questions and to produce relevant records, may he disei

plined as a lawyer, or, stated differently, does his constitu-

tional privilege against self incrimination shield him, not

_ only from possible criminal prosecution, but also from disci-

plinary action as a ‘member of the Bar for failing in his

duties, obligations and responsibilities as a lawyer to the

court?

This question goes to the heart of a serious and far-

reaching problem confronting the Bar, the courts and the

public. When this question is finally resolved it will affect

the standing at the Bar, not only of this respondent, But of

many other lawyers. who similarly have asserted their con-

stitutional privilege against self incrimination as a basis

for refusing to divulge pertinent information with respect

_ to their practices in relation to negligence cases. The reso-

lution of this question will also determine in large measure

whether this court's supervisory and-regulatory power over

lawyers, and whether this ‘court's plenary power to curb

all evil and unethical practices in the profession of the law,

Appendix A—Opinions of Appellate Division,

Second Department-- ~~

are to be suppressed and subverted, and whether aap court

is to be rendered impotent in the performance of its inher-

ent and statutory duties relating to attorneys and to the

administration of justice.

{1,2} In order to keep in proper perspective the preeise

question to be decided here, it should. be eniphasized that

with respect fo the members of the Bar collectively, this

_ court has the positive affirmative duty, springing both r rom

its ancient plenary jurisdiction over attorneys and from

‘the express statutory delegation of such power, ‘‘to keep

the house of the law in order’’, to compel attorneys ‘*to

submit to an inquisition as to professional misconduct"

to ascertain the existence of practices which are prejudicial

to the administration of justice, to compel the discontinu-

ancé of such practices and to discipline those attorneys who

may have engaged i in them. For the achievement of these

ends this court is empowered to make any rule, to hold any

inquisition, and to require any attorney to attend and to

give evidence under oath. The end and the aim of the inqui-

sition are not punishment, but discipline. And every attor- —

ney, as an officer of the court, has the reciprocal duty to aid

the court, to co-operate with it, to obey its rules and orders,

to respond to all relevant questions put by the court or by

the agency conducting the inquiry on its behalf, and. to :

refrain from doing any aet which might thwart the inquiry

(Judiciary Law, § 90; Gair v. Peck, 6 N. y. 2d 97, 111, 188

N. Y. S. 2d 491, 501; People ex rel. Karlin v. Culkin, 248

N. Y. 465, 470-479, 162 N. E. 487, 489, 492, supra; Queens

County Bar Ass’n v. Dwyer, 254 App. Div. 769, 4 N. Y. 8.

2d 895; Matter of Cherry, 228 App. Div. 458, 464-465, 240

25 ; >

Appendiz A—Opinions of Appellate Division,

Second Department

N. Y. S. 282, 289-290; Matter: of Brooklyn Bar «Ass‘n, 223

pane Div. 149, 151-153, 227 N.Y. S. 666, 669-671; Matter

” of Bar Ass’n of ity of New York, 222 App. Div. 580, 584

587, 227 N. ¥. S. 1; Matter of Flannery, 150 App. Div. 369,

371, 135 N.Y. 5. 612, 614, affirmed 212 N. ¥. 610, 106 N. E.

630).

[3, 4] And with respect to’ any particular ‘member of the

Bar, whenever the occasion demands or whenever his char- -

acter and fitness are called into question, this court like-

wise has the positive affirmative duty to re-examine into

them and to ascertain whether he sfill possesses the requi-—

site character and fitness to continue to be a member of

the Bar. If it finds that he does not, it must disbar him—

not by way of punishment, but ‘‘for the protection of both

the court and the public * * * from the official ministration

of persons unfit to practice.’’ An attorney may: continue

in the practice of the law only so long as he continues in

the possession of the requisite character and fitness (Judi-

ciary Law, § 90; In re Thatcher, C.C., 190 F. 969, 975-977 ;

Matter of Donegan, 265 App. Div. 774, 787-788, 41 N. Y. S.

2d 37, 47, 48; Matter of Rouss, 221 N. Y. 81, 84-85, 116

N. E. 782, supra; In re Durant, 80 Conn. 140, 147, 67 A. -

497). - " . .

We disagree with respondent in his contention that the

purpose of this proceeding is to discipline him *‘because

he has invoked his constitutional privilege against self-

incrimination.’’ Respondent urges, in effect, that his rights

as a citizen to be free from punishment for invoking his

constitutional privilege are being destroyed if, in_his

a 26 ie

Appendiz A—Opinions of en Division,

Second Department

capacity as a lawyer, he may -be disciplined for resorting

to such privilege as a citizen. But his argument overlooks

the undeniable fact that respondent, with “Fespect to his

rights as a citizen and with respect to his obligations as a

lawyer, stands in a dual. position. =’

[5, 6] We agree that respondent's rights as a citizen

may not be withheld or impaired in,a disciplinary proceed-—

ing. No person, layman or lawyer, may be compelled to -

give testimony against himself if; in good faith, he claims

that such testimony may tend to incriminate him, Nor may

any person, layman or lawyer, be ‘compelled to sign a

waiver of immunity from future criminal prosecution. And

. no inference of guilt or misconduct may be drawn from the

exercise of such a constitutional privilege. In any inquiry.

investigation, trial or proceeding the respondent lias every

right to assert his constitutional privilege, in response to

any question, whether it deals with his professional acts

as a lawyer or otherwise. And he cannot be disbarred for

his assertion in good faith of his constitutional privilege.

These principles have been well established by-our highest

courts and we abide by them.

However, we are not dealing here with un attempt to

force respondent to testify despite his assertion. of* his

constitutional privilege against self incrimination or his

refusal to sign a waiver of_igmunity. This is not a typical -

‘Fifth Amendment’’ case” No action is sought to be taken

against respondent because of his beliefs, his affiliations

with subversive groups, or any specific act uf doubtful pro-

priety: The judicial inquiry here deals generally and éssen-

—_—-—4

Appendix* A—Opinions of Appellate Division,

Second Department .

tially with the procurement and the prosecution of negli-

gence cases, and the.questions put to respondent relate only

to’ his practices with rerpect to the 304 statements as to

retainer filed by him and his firm and with respect to the

‘ negligence cases which they embrace.

— Hence, there is involved here ohly the question of whether

respondent in his capacity as a lawyer may be absolved

from all his duties, responsibilitigs and obligations to the

Bar and to the court to help expose and tiproot evil prac-

tices and corruption at the Bar and in the courts with.

respect fo negligence cases. If, as it has been often held,

disbarment is not criminal punishment, then by assertine

his constitutional privilege against self inerimination and —

thus gaining immunity from criminal prosecution or pun

ishment, is the respondent free to flout and destroy the

‘hasie relationship between the lawyer and the court? (an.

he, with impunity, disregard the canons of cthies and cast

to the winds all inquiries into his professional conduct as

a lawyer? Can he disregard his obligation to be frank anel

candid with thé court? Can he negaté his duty to co-operate

with this court to expose the evil and unethical practices

at the Bar and in the.courts!? Can he refuse to assist this

court in its quest to maintain the integrity and morality

of the members of the Bar and to maintain the high stand-

ards of the legal profession! We say, emphatically no.

This court already has expressed its opinion upon the

basic question here posed, namety, whether the attorney's

right as a citizen to assert his constitutional privilese -

against self incrimination, suspends‘his duty.as an attorney

. °

Appendix A—Opinions of dinndiels Divi sion,

Second Department

,and officer of the court to aid the court in its judicial i inquiry

“into unethical practices. .

0 1940, in Matter of Ellis, 208 ra Div. 508, 565-566, 17

.. ¥«8. 2d 800, 807, 808, and ‘i in Matter of Grae, 258 App.

= 576, 17 N. 'y, S. 2d 822, a majority of this court, after

reviewing the authorities, announced this court’s view and

future policy with respect to attorneys who assert their

constitutional] privileges as a ground for refusing to divulge

pertinent information upon a judicial inquiry. Such view

and policy were stated’ as follows (258 App. Div. at page

566, 17_N. Y. S. 2d at page 808): ‘‘If an attorney is sum-

moned .to assist the court by his testimony at its investiga-

tion, instituted to uncover unlawful and unethical practices

impairing the due administration of justice, and he refuses .

to answer the court’s questions on the ground that his an-

swers would tend to incriminate or degrade him, or unless

he is granted immunity, he is guilty of professional mis-

conduct or conduct prejudicial te the administration of

justice and will be disbarred.”’ -

In adherence to such policy this court suspended Ellis

and Grae from the practice of law. But it did so on two

separate and distinct grounds, namely: (1) that their

assertion of their constitutional privilege against self in-

crimination does not exeuse their refusal to testify and to.

div ulge pertinent information; and (2) that their insistence

upon retaining their constitutional privilege of immunit¢

from Prosecution and declining to sigu a written waiver

of such immunity, impeded the investigation and consti-

Auted conduct prejudicial to the administration of justice.

Appendix A—Opinions of ‘Appellate Pivision,

Second Department

Thereafter, in both the Ellis and Grae cases, the Court’

of Appeals | reversed the orders of this Court (Matter of

Grae, 282. N. Y. 428, 26 N. E. 2d 963, 127 A. L. R127

Matter of Ellis, 282 N. Y. 435, 26 N. E. 2d 967). i

reversal, however, was ‘based solely on the second ground

stated. It was held that the attorneys’ refusal to y ‘ield their

constitutional immunity from criminal prosecution in ad-

vance of their testimony and as a condition to permitting -

them to testify at the judicial inquiry, did not impede the

inguiry and is not professiona! misconduct. This conclusion

rested on the express finding of the Court of Appeals that

attorneys Grae and Ellis, time and again, had evinced their

willingness to co-operate, to testify fully and frankly and

to make all their records available if they were not de-

prived in advance of their constitutional immunity from

criminal prosecution by reason of their proffered. testi-

mony. The question as to the right.of an attorney to refuse

to textify in reliance on his constitutional privilege against

self incrimination was not reached by the Court of Appeals.

Obviously, the consideration of that question became un-

necessary because, as stated, both Ellis and Grae were

perfectly willitig to co-operate with the inquiry and to

divulge all relevant information if they had been permitted

to retain their constitutional immunity against future crim-

inal prosecution. ¢

Hence, while this court already has taken the nnequivocal

position that upon a judicial inquiry an attorney, by the,

assertion of his constitutional privilege against self inerim-

ination. cannot avoid his obligation as°a member of the

Bur and as an officer of the court to divulge all relevant

Appendix A—Opinions of Appellate Division,

* Second Department

information in his possession, the Court of Appeals has

not yet definitively passed upon the precise question.

In the light of the respective duties of court and attorney

andn the light of recent decisions, we have now re-exam-

ined this court’s position as expressed in the Grae and

Ellis cases, supra, insofar as it relates to the effect. of an .

attorney’s ass.. ion of his constitutional privilege against.

' self incrimination. After such re-examination we have no

hesitancy in affirming such position, limiting it however

to the effect of the plea against self" incrimiziation. When

so Lifted, the position of this court is not inconsistent with

the position taken by the Court of Appeals in the Grae and

Ellis cases, supra, since, as already stated, in those cases

the Court of Appeals held only that a waiver of immunity

from future criminal prosecution may not be exacted from

an attorney as a condition to permitting him to testify in

a judicial inquiry.

The highly responsible, and at the same .time delicate,

position ofthe lawyer in our society has been well deseribed

‘by Mr. Justice Frankfurter (Schware v. Board of Bar Ex-

aminers of New Mexico, 353 U. S. 232, 247, 77 S. Ct. 7 752,

760, 1 L. Ed. 2d 796) :

*. O4€ ‘ertuinly since the time of Edward k through

all ‘the vicissitudes of seven centuries of Anglo-

American history, the legal profession. has played a

role all its own. The ban has not enjoyed preroga-

tives; it has been entrusted with anxious responsi- *

bilities. One does not have to inhale the self-adula-

tory bombast of after-dinner speeches to affirm that.

all the interests of man that are comprised under

{

Appendix A—Opinions of Appellate Division,

Second Department -

the constitutional guarantees given to ‘life, liberty

and property’ are in the professional keeping of

lawyers. It is a fair characterization of the lawyer's

responsibility. in our society that he stands ‘as a

. shield,’ * * * in defense of right and to ward off

wrong.. From a profession charged with such re-

sponsibilities there must be exacted those qualities

of truth-speaking, of. a high sense of honor, of

granite discretion, of the strictest observance of

fiduciary responsibility, that have, throughout the

> centuries, been compendiously described as ‘moral

character.’ ’’

Mr. Justice Frankfurter also pointed out (353 U. S. at

pages 248-249, 77 S. Ct. at page 761) that it is this ‘‘moral

character’’ which ‘‘has beerthe historic unquestioned pre-

requisite of fitness’? to be a mémber of the Bar, and that to

‘‘a wide and deep extent,.the law depends upon the disci- -

plined standards of the profession and belief in the integ-

rity of the courts’’.

It is fair to say, in view of the fiduciary responsibility

entrusted to the lawyer, that the corruption pr deterivra-

tion of his moral character would undermine the admin-

istration of justice and thus endanger the security of the

State itself. As so aptly said by Chief Justice Charles

* Evans Hughes, the practice of the profession of\the luw

ig 649 OO thy privileged administratian of a publi¢ trust

affording the necessary means by whichtprivate and public

rights are vindicated, private and public wrongs are re-

dressed, and the very basis of civilization is made secure’ *?

(Matter of Williams, D. C., 158 F. Supp. 279, 280).

Appendix A—Opinions of Appellate Division,

Second Department

The courts, and the lawyers as integral functionaries and

officers of the court, are the foundation upon which the ad-

ministration of justice must rest. And, it has been oft re-

peated, the true administration of justice is the firmest

pillar of good government. It is for these reasons,:as in-

dicated by the cited cases, that the courts from time ‘im-

memorial have exercised.plenary and summary jurisdiction

over attorneys, have required thein collectively and indi-

vidually to tonform to the highest standards of rectitude

and have swiftly disciplined them for any departure from

such standards.

{7} When the position of any person is one of trust and

responsibility, one which directly affects the public interest

or the security of the State, and one which consequently —

requires a high degree 6f moral character and fitness, such ‘

person may- be removed from his position if he elects to

assert his constitutional privilege against self inerimination :

as a basis for his refusal to answer relevant questions w hich, *

“seek to determine whether he still possesses such character

and fitness. So the courts recently have held as toa teacher,

# subway conductor and a policeman (Beilan v. nipples

Publie Education, 357 U. S. 399, 78 S. Ct. 1317, 2 L. sige

2d 1414; Lerner v. Casey, 307 U. 8. 468, 78 S. Ct 131], 2

L. Ed. 1423, affirming 2 N. Y. 2d 355, 161 N. Y. S. 2d 7,

affirming 2 A. D. 2d'°1, 154 N. Y. S. 2d 461 [2d Dept.];

_ Matter of Dele hanty, 280 App. Div. 542, 115 N. Y. S. 2d 614,

affirmed 304 N, Y. 725, 108 N, E. 2d 46; Christal v. Police

Commission of San Francisco, 33 Cal. App. 2d 564, 92 P. 2d

416).

It is true that in the four énses\ Test cited a was a

special statate which in effect ‘made compulsory the em-

33 < :

- Appendix ‘A—Opinions of Appellate Division,

. Second Department

ployee’s maintenance of Such character and fitness and

which permitted his discharge when the administrative

ageney by which he was employed ‘determined after a hear- |

ug that he lacked the requisite character and fitness or

that a reasonable doubt exists whether he does. But the

principle on which they were. all decided ‘is the same,

namely: that while the employee is ‘entitled to refuse to

answer any relevant question on the ground that»bis an-,

swer might tend to incriminate him, nevertheless, by reason

of his refusal to divulge the relevant information sought,

the ageney was justific’ ‘1 concluding that he lacked the

requisite character and fitness and in removing him from

his position. The rationale is, not that he is being punished

for invoking his constitutional privilege, but rather that he

is being removed’ from his position because the ageney, by

reason of his refusal to furnish the information sought, is

entitled to conclude that he no longer possesses the requisite

character and fitness to continue in the agency's employ.

Of course, io statute is needed to prescribe the high moral

character at all times requisite for the lawyer or to define

his obligation to the‘court or his duty to promote the ‘ad-

ministration of justice and never to impede it. As indicated

hy the cited eases, ‘such character, obligation and duty are

implicit and fundamental; they have been the prerequisites °

of the office of an’ attorney and counselor at law from time

inimemorial, and without them the true administration of

justice could not long survive.

[8] But since the-high standard of conduct to-which the -

lawyer must conform is incapable of precise definition the

hegislature has wisely confided to this court: a ‘plenary

" s of them so holds;

« already noted, the real question to be determined hi re is,

(34°

Appendix A—Opinions oftdppellate Division,

Second Department

power and control over all lawyers (Judiciary Law, § 99,

subd. 2; Gair v. Peck, 6 N. Y. 2d 97, 188 N. Y. 'S. 2d 491,

sppra; People ex rel. Karlin v. Culkin, 248 N. Y. 465, 162

N. E. 487, supra; Matter, of Brooklyn Bar Ass’n of City

_ of New York,-223 App. Div.. 149, 227 N. Y. S. 666, supra).

“SAnd, as observed some years ago by the Ccurt of P aetoe

“in establishing: the standard of conduct to which the, bar -

.must, at its. peril, conform, the’ Appellate Division -has a -

wide discretion, with which we -have neither ‘the wish nor

the power to interfere’? (Matter of Flannery,,.212 N. Y.

610, 611, 106 N. E. 630, supra). f .

‘Respondent relies -on ‘several cases (to wit, Matter of

Grae, 282 N. Y. 428, 26 N. E. 2d 963, supra; Matter of Ellis,

282\N. Y. 435, 26 N. E. 2d 967, supra, Matter of Kaffen-

burgh, 188 N. Y. 49, 52-53, 80 N..E. 570, 571; Peevle ex —

rel. Karlin v. Culkiny: 248 N. Y. 465, 162 N. EB. 487; supra)

* as upholdinig the attorhey’s right to immunity from dis-

barment by reason of his assertion of his constitutional

privilege eee al incrimination. In our opinion, none

s will -he indicated below. Moreove Tr, as

not whether the attorney is immune from disbarment by

reason of his assertion of his constitutional privilege, but ’

whether the attorney is immune from disbarment by reason

of his refusal to co-operate with the court in a judicial in-

quiry into unethical practices’, and by feason or his refusal

to come forward with an explanation of his conduct when

_ the circumstances require it.

_In the Grae‘and Ellis cages (supra), the Court of Ap-

peals, as previously noted, settled and decided only one

Appendix A—Opinions of Appellate Division,

. ‘Second Department

proposition, namely, that an attorney whe is willing to

testify in a judicial inquiry but who is unwilling, in ad-

vance of his testimony and as a condition to permitting

- him to testify, to sign a waiver of immunity from future

‘criminal prosecution, is not: subjcct to discipline by this

court by reason of his. refusal to sign such waiver. Indeed,

this holding is consistent with our own prior holding (cf.

Matter. of Solovei, 250: App. Div. 117, 293 N.Y. S. 649,

| aflirmed. 276 N. Y. 647, 12 N. E. 2d 802), as well as with

our holding in the instant case.

Tn the Kaffenburgh case, 188 N. Y. 49, 52:53, 80:N. E.

570, 571, supra, the Court of Appeals held only that an

attorney could not be disbarred because on the trial of his

former employer upon an indictment for eonspiracy to de- -

fraud, the attorney who had appeared as a witness had

‘invoked his constitutionalseand statutory privilege against

self incrimination and refused to answer relevant questions.

That case did not involve the refusal of an attorney to di-

vulge information upon a judicial inquiry, such as the one

here. mae ys

Inthe Karlin exe § 248N. Y, 465, 162 N. E. 487, 489, supra,

‘during the course of a judicial. inquiry such as the ane here,

the attorney appeared in court but refused to be sworn or

to testify | as to his conduct i in the procurement of retainers.

The Court of Appeals, in an opinion by Cardozo, Ch. J..

held’ that he jad been properly held in contempt tor hi-

refusal. The only. point it decided was that the attorney

could not thus defy the inquiry and thwaf® its purpose by

refusing to testify as to what he knows about the evil prac.

‘ tices in the’ profession. Incidentally, the court also indi- *

6. Appensiz Pay eran of Appellate Division,

Second Department

cated that his testimony would be ‘‘subject to his claim of

privilege. if the answer will expose him to, punishn:ent for

crime’’. But the only inference to be drawn from this re-.

mark is that if he did testify:in the judicial inquiry’ he

could claim his privilege against self iticrimination without.

fear of being held again in contempt and without fear of

future criminal prosecution. The remark had no relation

to the question of whether or not the attorney, if he should

assert his constitutional privilege in good faith, could there-

after be disciplined or disbarred as an attorney becguse of

his refusal to divulge ‘relevant information sought in the

judicial j inquiry. That this is-so is made quite plain by the

sharp distinction which Chief Judge Cardozo himself drew

between a criminal and a disciplinary proceeding. He

_pointed out that: |

‘“‘The grand jury inguires mto crimes with a

view to punishment or correction through the sanc-

tions of the criminal law. There are, however, many

forms of professional misconduct that do not amount -

to crimes. Even when, they do, disbarment is not

punishment within the meaning of the criminal law. .

°° * Inquisition by the court with a view to the

discipline of its officers is more than a superfluous

duplication of inquisition by the grand jury with a

_ view to punishment of criminals. .The two fields of

action are diverse and independent’’. (People ex

rel. Karlin v. Culkiri, 248 N. Y. 465, 470, 162 N. FE.

487, 489 [emphaais supplied].)

This conelision as to the holding in the Karlin case,

supra, also finds ample support in the opinion of the Court

of Appeals in a subsequent case (Matter of Levy, 255 N. Y.

Appendir A—Opinions of Appellate Division,

Second Department

223, 225, 174 N. E. 461, 462). In the-Levy ease, the Appel- ~

late Division in the First Department had disbarred an at-

torney because it found that upon a judicial inquiry, ‘simi-

lar to the one here involved, he had pleaded his constitu-

tional privilege in bad faith. The COurt of Appeals dis-

missed the appeal on the ground that the vunstitutional °

privilege is not available when it is urged in bad/faith and,

hence, no question of constitutional construction is properly.

before the Court of Appeals. It then, apparently, went ott

of its way; however, to state (255 N. Y. at page 225, 174

N. E. at page 462) that it would ‘‘pass as unnecessary for

consideration at this time the question whether the asser-

tion in good faith {upon a preliminary judicial inquiry]

of the privilege against self-incrimination is ground for

disbarment.”’

It will be noted that the Lave case was decided two years

after the Karlin case, that the same judicial inquiry was

involved in both cases, that the opinion in the Levy case

- cites the Karlin case, and that, notwithstanding the Karlin

case, the’ Court of Appeals in. the Levy case clearly indi-

cated that the issue here involved is still an open one and

would be decitied by the Court of Appeals only when it be-

came necessary to do so and when it is properly presented.

It is also significant. that the statutes granting a witness

immunity from prosecution or from any penalty or for-

feiture when he is compelled to answer despite the asser-

tion of his constitutional privilege against seif inerimina-

_ tion, are not deemed to include disbarment. Such immunity

statutes do not include disbarment because they are or

dinarily **designed to give an’ immunity as broad ax the

Appendix ‘A—Opinions of pone Div ision,

Second Department

constitutional privilege, and no broader’’, because the Con-

stitution provides that no person shall be compelled in any

criminal case to be a witness against himself, and because

a proceeding looking to’disbarment is not a-criminal case

ora penalty or forfeiture (Matter of Rouss, 221 N. Y. 81.

86, 116 N. E. 782, 784, supra; People ex rel. Karlin v.

Culkin, 248 N. Y. 465, 470, 475, 162 N. E. 487, 489, 491,

‘supra; Matter of Solovei, 250 App. Div. 117, 121, 293

N. Y. S. 640, 645, affirmed 276 N- Y- 647, 12 N. E. 2d 802,

supra).

[9] In view of (a) the high Puan of character. and

morality required of the attorney as a condition both to his

admission and to his.rete ntion in the feliowship of the Bar,

(b) the close fiduciary relationship between him and ‘the

court, (c) his Solemn duty to uphold the integrity of the

courts and the Bar and to promote the administration of

justice, (d) this court’s plenary power. and control over

‘him in his capacity as an ‘attorney and counselor at law,

‘(e) the fact that, for good cause shown, this court has in-.

itiated a judicial inquiry inte unethical practices of atter-

neys in relation primarily to negligence cases, and (f) the

fact that in the course of such i inquiry it appeared that the’

respondent and his firm filed a large number of statements. .

as to retainer (an average of more than 60 a vear during

the five-year period from 1954 to 1958) for such negligence

cases, We say that upon interrogation by the court or its

agency there is cast upon him as an officer of the court the

affirmative duty to come forward with a full and adequate

explanation of every such retainer and to thus re-establish

his high moral character.

eeeniie A—Opinions of Appellate Divi ision,

Second Department

‘This conclusion also necessarily flows from the fact that

.to the extent of respondent’s examination before this ju-

dicial inquiry, such inquiry inevitably became a preliminary

inquiry pro tanto into his personal practices for the purpose

of determining Whether he had engaged in’ unethical con-

duct and for the purpose of determining whether he still

possessed the high moral character requisite for a me *mbe ro

of the Bar.

[10] We repeat: every attorney has an absolute right:

to. assert his constitutiona] privilege against self incrimina-

tion as the basis for his refusal to give any explanation of

his conduct or‘his activities, and when he does so he cannot _

be compelled to testify. But the moment he asserts fis

constitutional: privilege he creates his own dilemma. There-

upon, after opportunity for reflection (which was here

given to the respondent), it is for the attorney to choose

whether he will’ rest upon his constitutional privilege or

whether he will discharge his duty to co-operate with the

court in its judicial inquiry into unethical practices. If,

as hete, he deliberately élects not to co-operate. with the

court, then the court has rio alternative but to revoke his

privilege to continue as a member of the Bar. For his duty

to the court is inviolable. He cannot remain mute, thereby

sterilizing the power of the court and frustrating its in-

quiry into unethical practices, and yet be permitted to re-

tain his privilege of membership in an honorable pro-

fession.

(11) Such membership, it should be emphasized, is. a

rev ocable privilege. ‘‘There is no vested right in an indi-

Appendix A—Opinions of Appellate Division,

Second Department

vidual to practice law. Rather there is a right in the Court ©

to protect itself, and hence society, as an instrument of jus-

tice’’ (Vimrson, Ch.J., In re Isserman, 345 U. S. 286,289,

73 S: Ct. 676, 677,97 L. Ed. 1013). We should be ever mind-

ful of the admonition of Mr. Justice Brandeis that ‘‘If we

desire respect for the law, we must first make the law re-

spectable’’ (Lief, The Brandeis Guide to the Modern

World, p. 166). - ‘

_ [12] To avoid any possible doubt as to our position,

we state aga that.the basis for any disciplinary action by

this court is, not the fact that respondent has invoked his

constitutional privilege against self incrimination, but

rather the fact that he has deliberately refused to co-

operate with the court in its efforts to expose unethical

practices and in its’ efforts to determine incidentally

whether he had committed any acts of professional mis- —

conduct which destroyed the character. and fitness required

of him as a condition to his retention of the privilege of

remaining a member of the Bar.

As Chief Judge Cardozo pointed out in the Karlin case

(supra), 248 N. Y. at page 473, 162 N. E. at page 490), the

court will maké ‘‘short’shrift’® of such a lawyer: it will

promptly strike his name from -the roll ‘of attorneys and

deprive him of his privilege to practice. And, as indicated,

such deprivation or such disbarment is not-deemed to be

punishment, but discipline which the court was always em-

powered to administer (People ex rel. Karlin v. Culkin,

248 N. Y. 465, 162 N. E. 487, — Judiciary Law, § 99,

subd. 2). =

Appendiz A—Opinions of Appellate Division,

‘ Second Department

Respondent should be disbarred and-his name should be

ordered to be struck from the: roll of attorneys, with leave

to apply to vacate the order to be entered hereon upon

proof that, ~ithin 30 days after the entry thereof, he has

answered before the Justice presiding at ‘the judicial in-

quiry all relevant questions and has produced before such

Justice ali relevant records in aeqerdanee with the sub-

poena duées tecum.

Respondent disbarred and his name ordered to be struck

‘from the roll of attorneys, with leave to apply to vacate

the order to be entered hereon upon proof that, within 30

days after the entry thereof, he has answered before the

Justice presiding at the judicial inquiry all relevant ques-

tions and has produced before such Justice all relevant

re records i in accordance with the. subpoena duces tecum.

Ww ENzEL and Ucuetra, JJ., concur. . :

NOLAN, Presiding Justice (concurring).

Tf this were a matter of first impression, I would favor

_ a determination’in accordance with the views expressed in

the dissenting. opinion of Presiding Justice Lazansky in

Matter of Ellis, 258 App. Div. 558, 567-575, 17 N. Y.-S. 2d

800, 809-816. However, the seins question presented here

was decided by this court in that proceeding contrary to the

views expressed by the Presiding Justice, and that decision

was not affected by the reversal in the Court of Appeals

of our determination made at the same time that the failure

by the respondent in that proceeding to sign a waiver of

immunity constituted professional misconduet.. Conse-

"quently, I concur in the result. - es

Appendiz A—Opinions of Appellate Division,

Second Department

Kets FELp, Justice (dissenting)

- Despite all disclaimers to the contrary, respondent is

-being disbarred for pleading his privilege against self-

incrimination. The Court of Appeals of this State is com-

mitted to the view that this cannot be done and in Matter

of Grae, 282 N. Y. 428, 434-435, 26 N. E. 2d 963, 966, stated:

‘‘The privilege against self-incrimination is a con-

stitutional guaranty of a fundamental personal right.

‘Long regarded as a safeguard of civil liberty it. was

firmly imbedded in the law of England ‘and by the.

Fifth Amendment to the Federal Constitution be:

came a basic principle of American constitutional

law. ‘It is a-barrier interposed between the indi-

vidual and the power of the government, a barrier

interposed by the sovereign people of the state; and

neither legislators nor judges are free to overleap it.’

Matter of Doyle, 257 N.Y. 244, 250, 177 N. E. 489, -

491, 87 A. L. R. 418 Applying this basic principle

to our present problem we have no doubt that when

' the appellant, as a witness upon the inquiry at the

Special Term, declined ta sign a waiver of immunity

and thus refused to relinquish i in advance a privilege

which the Constitution guarantees to him, he was

.within his legal right. As was said by Presiding.

Justice Lazansky in Matter of Ellis, 258 App. Div. |

558, 572, 17 N. Y. S. 2d 800, 813, expressing the mi-

nority view at the Appellate Divisi6n: ‘The consti-,-

tutional privilege is a fundamental right and-a mea--

sure of duty; its exercise cannot bea breach of duty

- , ¢

to the court.’ ’’

In Matter of game ieee’ oh 49, 53, 80 N. E.570,

571, the Court of Appeals quofed with approval the foliow-

“i

Appendix A—Opinions of Appellate Division,

Second Depturtment

ing language from People. ex rel. Taylor v..Forbés, 143 .

N.Y. 219, 228, 38 N. E. 303, 305: ‘tno ene shall be com-

pelled in any judicial or other proceeding against himself,

or upon thetrial of issues between others, to disclose facts

or circumstances that can be used against him as admis-

sions tending to prove ‘his guilt or connection with any

‘eriminal offense of -.which he may then or afterwards be

‘charged, or the sources from which or the means by which

evidence of its commission or of his'connection with it may

be obtained.”’ | |

If the respondent is guilty of any violation of the laws,

rules or regulations appertaining to the conduct cf attor-

neys, and this is proved in an adversary proceeding against

him after he has had the right to confront his accusers,

cross-examine witnesses,. call witnesses’‘on his own behalf,

‘and the benefit of all the other safeguards of due process,

then he may he disciplined as the court deems proper. Ab-

sent such proceeding, the respondent has been denied his

rights understhe Constitutions of this Siate and A tthe

United States, . ee

The Proceeding should be dismissed.

e °

APPENDIX B

Grant of Stay of Disbarment by Appellate Division

At a Term of thé Appellate Division of the

Supreme Court of the State of New York. -

"held in and for the Second Judicial: De-

partment at the Borough of Brooklyn, on

the 21st day of January, 1960.

Present—Hon. GeraLp Noan, Presiding Justice,

‘* Puuwip M. Kveinrevp,

Marcus G. Curist,

Nicuoias M. Perte,

ARTHUR D. Brennan,

sé

Justices.

In the,Matter of Abert Martin Couen, an (icrney,

espondent.

_ Denis M. Hurtey,

Petitioner.

P Orver oX MoTION FOR A Stay.

A proceeding having been instituted by Denis M. Hurley,

Esq., by petition verified the 9th day of July, 1959, for an —

order directing that the respondent Albert Martin Cohen

(admitted Second Judicial Department on December. 6th,

1922), be disciplined upon tlie: charges set’ forth In said

petition, and for such other and further action upon the

Appendix B—Grant of Stay of Disbarment by

Appellate Division .

charges embodied in said petition, as justice may require,

and for such other and further relief in the premises as may

be just and proper, and the srespondent Albert Martin

Cohen having filed an answer, herein, and after due delib-

eration having been had thereon, this court, by order dated

-and entered December Sist, 1959, having ordered that by

reason of the misconduct established by the evidence the

said Albert Martin Cohen be disbarred and removed from ‘

the office of attorney and counselor at law and that the

_ name of said Albert Martin Cohen be struck from the roll.

‘of attorneys of-t tate of New York, ete., and the said

respondent, Albert rfin Cohen, ‘having meved for an

order staying the operation of the order of disbarment

herein pending the respondent’s appeal to the Court of

Appeals of the State of New York, and for such other and

further relief as to the court may seem just and proper,

and the said motion havi ing come on to be heard by an order

_ to show cause, dated January 8th, 1960.

Now on reading and filing said order ta show cause, the

affidavit of David F. Priée, and the answering affidavit of

Denis M. Hurley, and the said motion having been argued

by Mr. David F. Price ‘of. Counsel for respondent, and .

argued by Mr. Michael Caputo of Counsel for petitioner,

and due deliberation having been had thereon:

It is Ordered that the sajd motion to stay the operation

of the order of disbarment entered Ds cémber 31,1959, pend-

ing appeal to the Court of Appeals, be and the same hereby

is granted on condition that respondent be ready to argue

or submit the appeal at the next term of the Court of

: : ee eee °

- : Le

| ?

Appendiz B—Grant of Stay of Disbarment by i -

Appellate Division ; oy is Me

Appeals, and this tourt hereby certifies that a constitu-

tional question \is direetly involved and, therefore no

undertaking is required as a condition to the granting of

this stay (cf. Civ. Prac, Act, Sections 598-a, 593).

Enter:

a | Joun J. CaLtaHan

oe : Clerk.

APPENDIX C

. Opinions of Court of Appeals of New York

STATE OF NEW YORK

COURT OF APPEALS

No. 30

In: the Matter of

ALBERT Martin C'oHEN, an attorney,

Appellant,

Dests M. Hvurwey,

Respondent.

Desmonp, Ch. J.: ; °

By an order of the Appellate Division, Second Department,

one justice dissenting, petitioner admitted to the bar in 1922

has been disbarred from the practice of law. The dishar-

ment order was made after a hearing and on findings that —

he had refused to answer pertinent questions put to him

during a ‘‘ Judicial Inquiry and Investigation’’ (Judiciary

...Law, § 90) ordered by the Appellate Division and held be-

~ ~~ fore a Supreme Court Justice assigned by that court, into

charges of alleged illegal, corrupt and unethical practices

and of alleged conduct prejudicial to the administration of

justice, by attorneys and others acting with them; in the

County of Kings, where appellant had his law office. Ap--

pellant’s refusal to-answer was on the stated ground that -

nee. 48 -

Appeniiz C—Opinions 0 of Court of ii ‘als of Neig York

the answers might tend to incriminate oa On this ap-

peal he-argues that the disbarment order was, contrary to

_law and in violatius ‘of his right tc due process of law,

made solely because of his refusing to answer questions, in

good faith reliance on his constitutional privilege €N. Y..

Const., art. I, § 6) against self incrimination. The Appel-

date Division held that he was not disciplined for inv oking

liis constitutional privilege but because, in his capacty and

status as a lawyer, he’ had deliberately breached his in-

violable and absolute duty to co- -operate with the Spi in

a valid and proper investigation of unethical practices,

‘«.\ lawyer’’ wrote the Appellate Division ‘“‘cannot remain:

mute, thereby sterilizing,the power of the court and frus-

trating its inquiry. yy

_ There is a0 dispute as to the facts and no real dispute

as to the legality of this kind of general investigation or

‘Judicial Inquiry’’ (Judiciary Law, §90; People ex rel.

- Karlin v. Culkin, 248 N. Y. 465). On two occasions appel-

lant appeared before the Supreme Court Justice presiding

at the Inquiry. He was represented by his own counse!.

The cdfinsel for the Ingjuiry explained the nature of and

authority for the Inquiry.. Appellant and his attorney

were: informed by the Inquiry’s counsel and by the court

that this jw as an inv estigation and not an adversary pro-

ceeding (see Anonymous Vv. Baker, 360' U. S. 288, 291;) -

People ex rel: Karlin v, Culkin, 248 N.Y. 465, 479, supra),

that there were no respondents or defendants, that appek. |

lant was ‘‘not being charged with anything’’ but was to

_ be questioned as to pertinent facts.‘‘within the scope of

the aapeny ’* and which were .thought“‘‘to bear ‘on or-~

ohh Gin

Appendix C—Opinions of Court of Appeals of New York

relate to your professiona! conduct*’, also that counsel for

the Inquiryhad ‘tinforpfation that indicates your partici-

pation in professional miscogduct”*, s

$. :

Counsel for the Inquiry then put into ev idence 228

‘Statements of Retainer’’ which during the years 194

through 1958 appellant had filed with the Apyellate Divi-

_ sion in obedience to its Special Rule 3 which requires that

an attorney who makes contingent-fee agreements for his—

“Services in personal injury, wrongful death, property ‘dam-

age, and certain other kinds of cases, must file such agree-

ments’ with the court and, if- he enters jnto five or moré

such agreements in, any year, must. give to the court in

writing certain particulars as to how he came to be re-

- tained. Put-into evidence, also, when appellant appeared

before the Judicial Inquiry were 76° other such Statements,

of Retainer filed during the. same period By the law firm

of Cohen & Rothenberg, with which appellant apparently

had s some association. Counsel for thee Inquiry .informed

appellant and the court that ail thes Ret tainer Statements

were offered in evidence ‘‘as a basis for some of the qu@y-

tions to follow’’. at

Appellant answered a few preliminary questions as to

how long and where he had practised law. About sixty

other questions were asked of him during the two days (six

months apart) on which he was on the witness stand but,

on advice of his counsel who was present in court, he re-

fused to answer any of them (except questions as to whether

he had failed in any case to comply with Special Rule 3.

and except as to questions about maintaining a separate

office bank: account) on the ground that answers might tend

° 30

Appendix C—Opinions of Court of Appeals of Nei York

or forfeiture. Those unanswercal questions related te the

identity of his law office part hers, associates and employees,

to his possession of the records of the cases ‘described in

his Statements of Ketainer, to any destruction of such

records, to his bank accounts) to his paying police officers

or others for-referring claimants to him, to his paying in-

surance company employees for refer ring cases to him, and

to his promising to pay to any ‘lay person’’ 10% of re-

coveries or settlements. He was asked—and refused to an-

swer—as to whether he had made or agreed to make such

payments to any of several named persons, as to whether

he had hired or paid non-Tawyers to arrange settlements of

his cases with insurance companies and as to whether his

partner or associaie Rothenberg had been indicted for and

had pleaded guilty to violations of sections 270-A and

270-D of the Penal Law which forbid the. solicitation of

legal business or the employment by lawyers of such solici-

tors. At-one stage of this questionthg counsel for the In-

quiry pointedly called te ppellant’ s attention section {:

of the Jadiciary Lay which gives the Appellate Divisions

power and control over lawyers and authority to punish

professional misconduct or conduct: prejudicial to the ad-

ministration of justiee. At that time the Inquiry's counsel —

cited Canon 22 of Professional Ethies requiring lawyers

to be candid and frank when before the court, Canons 28

and 29 forbidding the payment of awards to persons bring-

ing in legal Iusiness and requiring lawyers knowing of such

practices to inform the court thereof, Canon 34 outlawing

division of fees except with others lawyers; also sections

270-A, 270-B, 270-C, 270-D and 276 of the New York Pena:

oe]

Appendir C—Opinions of Court of Appeals of New York

Law, all relating to soliciting and fee splitting. Counsel for

the Inquiry warned appellant and his counsel that *tserious

consequences "* might tlow from his cefusal to answer by

way of a *treegmmendation tw the Appellate Division.”

Appellant's counsel replied that he was relying on Matter

of Girae (282 N. 7. 428) and Vatter of Eilis (282 N. i435 r,

as holding that there could not be any ‘“consequen¢es” to

lawyers for *‘doing what they had an absolute legal right

to de’. Appellant was given a further opportunity to an-

swer but persisted in his refusal, all this be ing admitted in’

his pleading in this proceeding.

The Supreme Court Justice presiding at the Judicial In-

quiry then filed with the Appellate —— a transcript of

the proceedings before him. with a recommendatioy tliat

disciplinary procegdings be instituted against. app. A

The Appellate Division <lirected respondent Hurley,

sel to the Inquiry, t¢’commence this disharment proc ‘eed-

mg. Appellant's answer says that there is only an issue as

to whether he was within his rights under article 1, section

6, New York State Constitution, in pleading th: privilege.

The case, however, is not so simple. Of course, he had the

right to assert the privilege and to withhold the eriminat-

ing answers. That right was his as it would be the right

of any eitifee and it was, not denied to him. He could not

_ be forced to waive his inanunity (Matter of Ellis, 282. N.Y.

435, supra). But the que-tien still remained as to whether

he had broken the ‘‘condition’* on which depended the

‘privilege’ of membership in the Bar (see Judge Cardozo

in,Watter of Rouss, 222 N. Y. 81, 84)..°* Whenever the con-

dition is broken the privileze is lost’ (Matter of Rouss,

In--

52 r ¥

Appendix C—Opinions of Court of Appeals of New York

supra). Appellant as a citizen could not be denied any of

the common right of citizgns. But he stood before. the In-

_ quiry and before the Appellate Division in another °quite

different ceracity, also. As a lawyer he was ‘‘an officer of

the court, a..' like the court itself, an instrument of jus-

tice’ (Chief Judge Cardozo in People ex rel Karlin vy.

Culkin, 248 N. Y. 465, 470, supra), with the inevitable con-

sequences that the court which was charged with control

anddiscipline of its officers had its own right to demand his

full, honest and loyal co-operation in its investigations and.

to strike his namie from the rolls if he refused to co-operate.

. Such ‘‘eo-operation’’ is a ‘‘phrase. without reality’? as.

Chief Judge Cardvzo wrote in-People ex rel. Kalin v.

Culkin: (gupra), if a lawyer after refusing to answer per-

tinent questions about his professional conduct can retain

his statu’s and privileges as an officer of the court. °

- The solution to our problem is clear when we consider

' the lawyer’s special position. ‘‘The court 's control over a

lawyer’s professional life derives from his relationship ‘to

the court’? (Theard v. United States, 354 U. S. 278, 281).

‘*Membership in the bar is a privilege burdenéd with con-

ditions’? (Matter of Rouss, 221, N. Y. 81, 84, supra). Those re

conditions must not be arbitrary but the proper and appré-

priate ones are’numerous. An attorney’s contractual tight

to collect as fees a percentage of settlements or recoveries

may validly be limited by court rule (Gair v. Peck, 6'N. Y.

2d 97, certiorari denied 361.U7S. 374). He may be required

to represent, without fee, indigent defendants. He cannot

solicit retainers or employ others to solicit’ them for him,

or divide his fees with laymen (Penal Law, §§ 270-A, 270-B,

es ¢

Beer’ c

: ,

Appendix C—Opinions of Court of Appeals of New York

270-C, 270- D, 276). If he nay of such practices be others,

_ he must inferm the court (Canon 29). He must be candid

and frank with thé court at all times (Canon 22). Not only

must he meet educational.requirements and prove his char-

acter and fitness before being admitted to the bar but he is

subject throughout his professional life to investigation

as to whether he continues in the possession of those quali- °

les (Judiciary Law, $ 90).

The key: word is duty” and the im~esition on a lawyer

by tradition and positive law of strict and special duties

produces this situation where, atthe very time that he is - ;

exéreising a common privilege of ev ery citizen in refusing

to answer incriminating inquiriés, he is failing in his duty

as a lawyer and endangering his professional life. Breaeh

of the’ special duty brings a special penalty. "Lawyers are

not the only citizens whese duty“to answer is inconsistent

with the exercise -of the constitutional privilege. So it 1s

with police officers (Christal v. Commissioners, 33 Cal.

App. 2d. 564; Canteling v. McClellan, 282 XN. Y, 166) and

with certain other public ey (Lerner v. Casty, 2

N. Y. 2d 305,’ affd. 357 U. S. 468; Beilan v. Board, 307

JU. 8. 399): The latest in hi line of decisions is Veisong

and. Globe v..County of Los Angeles (— U.S. —, decided

“February 29, 1960, 28 Law Week 4159). Nelsoit and Globe

had been ordered by their employer, the County, to, answer

any questions asked of them by.a C ongre fssiondl subcom- |

mittee before which they had been subpoenaed. There was

a California statute making it the duty of any public em-

ployee so subpoenaed to answer any qucstions as to his

membership in any organization advoéating. the forceful

54.

Appendix C—Opinions of Court of wl ppeats of New York

overthrow of the United States Government, ete. Nelson”

and Globe refused to answer the subcommittee’ s questions

on Fifth Amendment grounds and they were thereupon

discharged from their County employment. The *tUnited

States Supreme Court, following Beilan and Lerner (supra)

held that they had been validly sepdrated from their

employment not for invoking their constitutional privilege

but for insubordination under C alifornia law. The majority

opinion: in the Supreme Court stated that if these men had

simply-refused-without more’ to answer the subcommittee’s

‘questions, the County could certainly have discharged them

"and the’ fact that they chose to place their refusal on a

Fifth Amendment claim put the matter in no different

posture since their assertion of that claim. Was not used

as a basis for drawing an inference of guilt. In those cited

'. eases the duty to co-operate in investigations by answer-

ing relevant questions was found in statutes or constitu-

tions, The lawyer’s duty is found elsewhere—in ‘he com:

_mon ‘law and in the Cangns of Ethics—but it is just as

plainly written. In this. State a lawyer on admission to

the bar takes the same ‘oath as does; a public official (see

Judiciary Law, § 466).

The idea that invocation of basic constitutional rights

may result, for other reasons, in forfeiture of office or -

privilege is not a new one. Justice Holmes’ aphorism has

become farnous : “The petitioner may have a constitutional

right to talk politics, but he has no constitutional right to

be ‘a policeman’? (McAuliffe v. New Bedford, 155 Mass.

216). The Federal Hatch. Act, denying to governmental] eti-

ployees their right of political activity, on pain of dismissal,

Appendix C—Opinions of Court of Appeals of New York

has been held valid (United Public Workers v. Mitchell,

330 U. S. 75).

Appellant ’s reliance is:on Matter of Grae (282 N. Y. 647,

supra); Matter of Ellis (282 N. Y. 435, supra) ; Matter of

Solovet (276 N. Y. 647) and Matter of Kaffe nburgh (18s

N. Y, 49). None of those decizions controls us here. The

precise question in Grae and Ellis (supra) was as to whether

a lawyer who offered to answer all pertinent questions could

be compelled in such’an investigation to waive immunity

in advance of questioning. The holding in each case was

that a lawyer like every other citizen is constitutionally

privileged not to answer damaging questions. The differ-

ence between tliose cases and the present one may -seem

slight but it.is enough to permit a fresh examination (or

re-examination) of the question iow directly presented.

Likewise as to Kaffenburgh and Sglovei (supra): Kaffen-

-burgh!s refusal to testify was at a criminal trial (so in

Matter of Cohen, 115 App. Div. 900) and Solovei's was be-

fore a grand jury. Our present. appellant by declining to

answer may have escaped criminal prosecution and punish-

‘ ment, but he could nev rer, while a member of the bar, escape

the other consequences of his flagrant breach of his abso-

lute duty to the court whose. officer he was. That breach

was fn itself ‘‘professional delinqueney"* (Ex Parte Gar-

‘land, 71 U.S. 339, 379) and a valid reason for deprifing

appellant of his office as attorney.

_ The order appealed from should be affirmed. |

Appegdix C—Opinions of Court of Appeals of New York

COURT OF APPEALS

‘

ia ~~

» i

In the Matter of

ALBERT Martin CoHEN, an Attorney,

Appellant,

Denis M. Hurtey,

Respondent.

é.

Futp, J. (dissenting) :

In order to appreciate the force of today’s decision, it

must be borne in mind that we are concerned not with the

- necessarily vague contours of the Due Process Clause of

the Federal Constitution, but with the specific provision

_of the Constitution of this State that no person shall be -. |

compelled to be ‘a witness egainst himself (Art. 1, § 6).

Recent Stipreme Court decisions (Lerner v. Casey, 357

U. S. 468; Beilan v. Board, 357 U. S..399: and Nelson &

Globe v. County of Los Angeles, ‘decided Feb. 29, 1960,

. U. Ss. ), whatever their bearing on the present preb-

- lem, are, therefore, ‘nat dispositive of this case. In other

words, whether or not this disbarment violates federal con-

stitutional guaranteés—and for reasons previously ex-

pressed (e.g., Matter of Lerner v. Casey, 2 N Y 2d 355, 373,

dissenting), I believe that it does—we need not resolve the

. federal question. The case before us may and should be

deeded, as were Matter of Grae (282 N. Y. 428) and Matter

of FM. (282 N. Y. 435), on an interpretation of our own :

Constitution, Article 1, section 6.

' 2 . 0

“Appendix. C—Opinions of Court of Appeals of New York

I agree that ““striet and special duties’? have been im--

posed on a lawyer (Opinion, p. 6). 1 cannot, however, per-

Suade-mysel? that a lawyer's refusal to answer questions,

even before a judicial inquiry, on the constitutionally » -r-

missible ground that todo so would incriminate him, may:

be said to constitute ‘a violation of any such duty. (See

Matter of Grae, 282 N. Y, 428, supra; Matter of Ellis, 282

N. ¥. 435, supre; see, also, People ex rel. Karlin v. Culkin,

248 N. Y. 465, ‘71.)' In the Grae and Ellis cases, the court

held that under our State Constitution an attorney’s re-

fusal to sign a waiver of immunity—his refusal to forego

reliance on the privilege—could rot.cdnstitute a ground

for disharn@nt, even though the refusal occurred during

the course @ a judifial i inquiry similar to the ene involved

here.’ There, too, it was argued that failure to answer was

a violation of the lawyer's duty of cooperation with the

court. We answered that argument, in a unanimous opin-

ion, in the words of Presiding Justice Lazansky who had

dissented in the Appellate Division (282 N. Y., at p. 435):

* * s*The constitutional privilege is a fundamentai

right and a measure of duty; its anna tad be

a breach of duty to the court.’ ”’

. 1. Indeed, in the Ellis case ¢282 N. Y. 435, supra), the court

pointed out that, Ellis, “appearing asa witness at the inquiry, not

only declined to sign a waiver of immunity * * * but in addition * * *

leclined to answer any questions upon the ground that such answers

would tend to incriminafe or degiade him” (p. 437; see, also, 258

App. Diy., at p. 559).. Although Ellis later wrote a letter stating

that.- while he stdod upon his refusal to signa waiver, he was “‘will-

ing to answer questions put to him, the significant fact is that he_

neyer did appear as a’ witness and that his refusals to answer ques-

tions’ on the ground of self-incrimination went unpunished. .

inde ts . #

Appendix C—Opinions of Court of Appeals of New York

And, therefore, concluded the court (p. 435),

‘*Tt foll6ws that * * * the present disciplinary pro-

ceeding instituted against the appellant, wherein the

single offense cherged is his refusal to yield a con-

stitutiona€ privilege, is unwarrantable.’’

The. attorneys Grae and Eliis ultimately offered to an-

swer all questions put to them, but, the record makes clear,

the offer was based not on a surrender of immunity, but —

on the specific condition that immunity be granted—by their

being compelled to-answer questions that might incriminate

them. It was for the very reason that the court was un-

willing’ to have immunity conferred-on them that it de-

clined to put questions to them without first obtaining a

waiver of immunity, Analysis of our opinion, as well as

the dissént of Presiding Justice Lazansky (258 App. Div.,

at pp. 567-575) —which this court explicitly approved (282

XN. Y., at p. 484) —demonstrates that the Gdurt was not

“merely passing on the consequences of a monjentary lapse

of courtesy, but was deciding the very point in issue today.

Pointedly noting that ‘‘the single offense charged [against

Grae] is his refusal to yield a constitutional: privilege”’, the

court unequivocally announced that ‘‘its exercise cannot

be a breach of duty to the court’’ (282 ‘N. Y., al p. 435).

The attorneys who refured to sign waivers of immunity

in those proceedings were not, I am confident, any more

cooperative or any more mindful of their ‘‘strict and spe-

cial duties”? 1

men than the present appeilant. And, I venture, the mo-

fives which prompted Grae and Ellis to assert their privil-

ege were no different from those of the appellant:

or of their privileged posts in the affairs of —

Appendix C—Opinions of Court of Appeals of New York

Matter of Grae and Matter of Ellis do not stand alone,

_ The question now before us first came to this court in

1907 in Matter of Kaffenburgh (188 N. Y. 49). Kaffen-

burgh was called as a -itness on the trial of his employer .

for conspiracy to obstruct justice. He was asked questions

relating to his possible participation in the conspiracy and

declined to answer on constitutional grounds. This was

one.of the charges on which his disbarment was later

sought, and as to it this court wrote (p. 53): ‘‘The defen-

dant * * * had the right to refrain from answering any

question which might form the basis of or ge to the prose-

cution of himself ora forfeiture of his office of attorney

and counselor atlaw. * * * We are therefore of the opinion

that no offense was stated.in the first charge.’’ The court’s

opinion herein attempts to distinguish Kaffenburgh upon

the ground that it involved a trial and not an inquiry into -

- the eonduet of lawyers. In point of fagt, it was the most

serious kind of inquiry into the conduct of lawyers, taking

the form of a criminal prosecution. th. questions put to’

‘Kaffenburgh dealt solely with his conduct in the practice

of the law and, certainly, he was as much an officer of the °

court conducting the trial as the appellant here is of the

court conducting the judicial inquiry.

Ten years later came Matter of Rouss (221 N. Y. 81),

also cited by the majority. That decision, far fron over-

ruling Kaffenburgh-on this point, actually confirmed it, for

the court explicitly declared that ‘‘the charge was made

that the refusal to answer was professional misconduct.

That charge was not sustained either in the Appellate Divi-

sion or in this court’’ (p. 90).

.\i 60

ao a : |

Appendix C—Opinions of Court of Appeals of New York

Twenty years after Rouss came ree of Solovei (276

N: »¢ 647, affg. 250 App. Div. 117). |As.a result of assented

irregularities i in connection with a thutder investigation in

pects, the Governor appointed an Extraordinary Special .

and Trial Term of ‘the Supreme Court anda grand jury

‘was drawn for that term. It indicted’three persons for _

murder and, some time later, it also indicted certain other _

persons, including an office associate of the respondent,

for the crime of conspiracy to obstruct justice. The respon-

dent, named as a coconspirator, declined to waive iménunity

when questioned by the grand jury. That body thereu 0

; presented charges to’the Appellate Division.. That

dismissed the charges, stating that ‘‘ Matter of Kaffenburgh °

* * *'Aecided that an attorney who in good faith refused -

to answer questions on the ground that they might tend to”

incriminate him was not amenable to disciplinary ‘proceed-

ings’’ (250 App. Div., at p. 121). The Appellate Division

also commented on the'nature of the proceedings, noting

that, if it was not a breach of duty to the court to refuse

to cooperate with it in a public trial, as in Kaffenburgh, it

was surely no breach to claim the privilege in a private

hearing (p.-120). As indicated, we affirmed without opinion.

Although the court in this case places considerable ‘reli-

ance upon People ex rel. Karlin v,, Culfin (Opinion, p. 5),

‘it is noteworthy that the case did not involve a claim of

‘ privilege; the attorney simply refused to be sworn or tes: |

tify. The court spoke of the duty of **co-operation’’ owed

by an attorney in an inquiry such as the present, but it was

careful to indicate that such ‘‘co-operation’’ on the part of

—~

Appendix C—Opinions of Court of Appeals of New York

the lawyer was ‘‘subject: Me his anaes of privilege” (248

N. Y., at p. 471). * _*

It is hardly necessary to say that a scrupulous regard

for the constitutional limitation will not leave the disci-

plinat®, uthority powerless or a guilty attorney inimune.

If, as sel for the judicial inquiry stated toward the’

_conchusion of the investigation, there was information indi-. -

cating the appellant’s ‘‘participation in professional mis-

conduct’’, his unwillingness to furnish information might .

haye. justified institution of a disciplinary - proceeding

founded on such information. And, if such proceeding wert

_ to be brought and the appéllant were to stand mute therein,

he would have to.bear all of the legitimate inferences stem-

ming: from the damagi g evidence adduced against him: It :

is also relevant that, where immunity is conferred—by

‘overriding the claim of privilege and compelling the wit-

‘ ness to answer the questions—and the testimony shows

‘hat he is not fit to continue as a lawyer, he may then be

disbarred or otherwise disciplined. (See Matter of Rorss,

221 N. ¥. 81, 86 et ‘seq. supra.) —

In the present case, however, the ‘appellant's claim ‘of

privilege was the sole ground relied upon to disbar him, -

and this fact cannot be altered or disguised by styling his

conduct a ‘refusal to cooperate with the court’’. It is to

substance that we must leok, not to form or labels. The

courts should not sanction so easy an avoidance of a consti-

tutional guarantee of a fundamental personal right.

To the charge that it is unthinkable that a lawyer ‘‘can

| _ retain his status and privileges as an officer of the court’’

after claiming his privilege Ss reran p. 5), I would answer

ia e-

A ppendiz C—Opinions of Court of Appeals of New York

in the words of Mr. Justice Lazansky in his dissent in

Matter of Ellis (258 App. Div. 558, 572, supra) —to which _

I adverted above—that the charge ‘‘is based upon false.

assumption. Defiance and affront theré cannot be When the

act has the sanction of the fundamental law of the land”.

It is, in short, my view that not only Article 1, section 6, .

of our Constitution but the decisions of this court consider-

ing and construing it require us to set aside the order. of

lisbarment. Failure to do so can‘only mean ‘that time has

eroded the importance and vitality of the constitutional

privilege against self-incrimination.

I would ‘reverse the order of the Appellate Division.

Order affirmed, without costs. Opinion by Desmond, Ch. J.

~ All concur except Fuld, J., who dissents in an opinion.

roe -. APPENDIX D

| Amended Remittitur of Court of Appeals

; State or New York

. IN COURT OF APPEALS

At a Court of Appeals-for the State of

New York, held at Court of Appeals ~

Hall in the City of Albany on the

twenty-first day of April A. D. 1960.

How. Cuarzes S. Desmonn,

Chief Judge, presiding.

—

Mo: No 275

In che Matter of

ALBert Martrx Cones, an attorney, .

° ey Appellant, ,

Denis. M. Hvatry,

| Respondent.

a. -

‘A motion to amend the remittitur in the above cause

\ having been heretofore made upon the part of the appel-

Mant herein and papers having been submitted thereon and

ue deliberation having been. thereupon had: _ Ss

(

—_ J

Appendiz D—Amended Remittitur of Court of Appeals

OrpsreD, that the said motion be and the same hereby is.

granted. Return of the remittitur requested and, when |

returned, it will be amended by adding thereto the fol- _

lowing: ie ‘iem

Upon the appeal herein there were’ presented and

necessarily passed upon questions under the Consti-

tution of the United States, viz.: ‘‘The appellant

asserted that his disbarment based*solely upon his

reliance in good faith on’ bis constitutional privi-

lege against self-incrimination in an non-adversary

proceeding without any substantive charges of mis-

conduct being made or proven against him at a full

hearing where the right of confrontation and cross-

examination of -witnesses and full and ample defense

would be availablé was violative of due process of ,

law under the Fourteenth Amendment, and that his —

disbarment based on his assertion in good faith of

his constitutional privilege against self-incrimina-

* tion which the Appellate Division held constituted a

refusal to cooperate with the Court and a breach of

the Canons of Ethics violated his guarantees of due

process of law under the Fourteenth Amendment.”’

- The Court of Appeals held that the rights of appel-

‘lant under the Fourteenth Amendmént had not been.

violated.

Anp the Clerk of the Appellate Division of the Supreme

Court, Second Judicial Department, is hereby requested to

return said remittitur to this Court for amendment accord-

ingly. : ) o

A copy

Deputy Clerk

APPENDIX E | Q

“Order of Disbarment : $e

At a Term of the Appellate Division of

the Supreme Court of the State of

New York held in and for the Second

. Judicial Department at the Borough |

of Brooklyn, on the 31st sie of De-

cember, 1959.

Present:

Hon. Geratp Noxan, es

Presiding Justice,

Hewry G. Wenzen, Jr.,

‘* - Grorce J. Beipock,

‘* Henry L. Ucuertra, ?

‘¢ Pup M: Kvernrexp, _

Justices. ;

‘In the Matter of

ALBERT Martin Couey, an attorney,

| Respondent,

Denis M. Hurtey,

Petitioner:

t a

A. -~

Orper or DisBaRMENT

A proceeding having been instituted by Denis M. Hurley,

Esq., by petition verified the 9th day of July; 1959, for an

Appendix E—Order of Disbarment d

————order directing that the respondent Albert Martin Cohen —

(admitted Second Judicial Department on December 6th,

1922), ‘be disciplined upon the charges set forth in said

; petition, . ‘and for such other and farther action upon the

charges embodied in said petition, as justice may require,

and for’such other and further relief in the premises as

may be just and proper, and respondent Albert Martin

Cohen having filed an answer verified July 31st, 1959, and

the said proceeding having come on to be heard by an order’

to show cause, dated July 13, 1959:

Now on reading and filing said order to show cause, the

pétition, the answer, respondent’s brief and respondent's |

reply brief, the exhibits, the testimony of respondent before.

the Additional Special Term, and all the papers filed herein,

and Mr. Denis M. Hurley, petitioner, appearing in person,

and Mr. David F. Price appearing:for respondent, and due

deliberation having been had thereon; and upon the major- —

« ity opinions of the court herein, heretofore filed:

It is Ordered that by reason of the misconduct established

by the evidence, the said’ Albert Martin Cohen, be and he

‘hereby is disbarred and removed from the office of attorney

and counselor at law, and the name of said Albert Martin

Cohen ordered struck from the roll of attorneys of the

State of New York as of the date of entry of this order, and

sit is

Further Ordered, pursuant to the appropriate provisions...

| of the Judiciary Law of the State of New York, that the

- said Albert Martin Cohen ‘is hereby commanded to desist

- and refrain from the practice of law in any form, either

as principal or as agent, clerk or employee of another, and

Appendix E—Order of Disbarment

is forbidden to appear as attorney and counselor at law

before any court, judge, justice, board, commission or other

public authority or to give to another an opinion as to the

law or its aggeenten.gs any advice in relation the reto, and

it is

Further Ordered that the respondent, Albert. Martin

. Cohen, have leave to apply to vacate this order upon proof,

that, within 30 days after the entry of this order, he has

answered before the Justice presiding at the judicial in-

quiry all relevant questions and has produced before such >

Justice all relevant records in accordance with the anb-

poena duces tecum.

Opinion by Beldock, J. Wenzel and Ughetta, J.J., concur

with Beldock, J.,,Nolan, P.J:, concurs in separate opinion;

Kleinfeld, J., dissents and votes to dismiss the proceeding,

' im opinion.

Enter i

sag J onn J. CALLAHAN

. Clerk

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.