# Petition for Writ of Certiorari — Cohen v. Hurley (No. 84) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0352%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1960 ## Text FILE COPY 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. EE 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: ee . 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 2 —____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 yo 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 > *. 4 ' IN THE | Baieme Court nf the United Bate P _ October. Term, 1959 . 2 ap. v _ dn the Matter. of ALBektT Martin Cones, $ Petitioner, Be . Denis M. Hurtey, a Respondent. »™ vv 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- FY to 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 . . ‘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 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, 7: 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. 91 Appendix A—Opinions, of Appellate Divisions: Second Department or 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 22 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 23 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, 24 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 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 . 27 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 . ° - qa 28 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. i) 29 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 30 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 { i 31 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). \ 32 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 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 45 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 46 | ? 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. 47 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 ~ ue u ° 30 Appendix C—Opinions of Court of Appeals of Nei York © to incriminaté or degrade him or expose hip to a penalty 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] 51 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 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 o sag J onn J. CALLAHAN . Clerk --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0352%3A02. Public record. Not legal advice.