Brief for Respondent — Cohen v. Hurley (No. 84)

Supreme Court brief1960

Ask Donna

What actually matters in this document.

Text

I Gitice Supreme Coun, US

FILED:

SEP 17 1960

j .

JAMES R. BrauwNING, Clerk |

Ix THE

Pucreme Court of the United States

Ol ae Ro TERM, 16

2 No. &4

6 meetin

IN THE MATTER

of |

ALBERT MARTIN CQ@HEN, wee

. Petitioner,

oa : c s'

i . J

‘ ;

sh. ° i . DENIS M. HURLEY,

° . Respondent.

On Wart or CertroRari To THE Court oF | Peed ALS OF TRE

STATE OF NEW YORK AND THE SUPREME Cot t+ OF THI STATE

oF New York, APPELLATE Division, SECOND DEPARTMENT,

. JOINTLY OR IN THE ALTERNATIVI

. BRIEF FOR "RESPONDENT

be Denis M. Hurry,

Attorney and Counsel for Re sige dent

Ottice and Post O'ttice ies ss,

oo. Hall,

* Brooklyn LwWew York. -2

Micragnt A. CastaLpi, ‘ es

' . *

“| MiciaAgEL Caputo, *

James BP. Nrenorr,. |

Of Counsel. . \

INDEX ©

‘ 7

a > PAGE

: Opinions Wo riscs tn dtisavetaketesvenes Seemens 2

Jurisdiction .....,..... aed ous pacae Attestcens ee

Question Presented RRSP sate he ee ee iaeann deen

Constitutional Provision Involved ......... se eccees an

Statutes Involved ...... Woatubeas beceurecererrey 3

ME og choice ec eecue aad: 4

Petitioner’s Testimony &t the Additional Spe-

cial Term ..... eed adewsande tes costacecnt ea sy)

ommnnty of Argument ee exw meen ske tends vi Tr

Post I—In a judicial inquiry ordered by the Appel-

- late Division into unethiedl practices of lawyers,

petitioner as.an attorney and officer of the court,

‘ was under a g@ity to answer all relevant questions

relating to ‘his professional conduet..” For a,

breach of that duty the lawyer is subject to dis- ~

ciplinary action~not by way of punishment, but

for the protection of the publie, the «Bench ‘and

errs te eee Vesey. ee

Memberghip in the Bar is a 1 Privilege Burdened

ee PD: sa Oe ne eieckecdesivessanets 42 .:

Plenary Power of the Court to Supervise and

‘Control the Conduct of Attorneys .......... 18

Basis of Disciplinary Charge Preferred ota

IE ac aha unekebasexbeescccursceecs .15

The Lawyer’s Duty to ' Answer Relevant Ques- |

tions ina Judicial Inquiry .................. 17

“a

° : Ree

il ; INDEX

sit . Y | PAGE

Point II—As a citizen petitioner had the right to ~

invoke the constitutional privilege’ against self-

incrimination. As a lawyer, pxtitioner was under

a duty to answer to the courf. - Petitioner may

not~évade: the disciplinary consequences for a

breach of his duty to speak up as a lawyer by

choosing«to remain silent under the exercise of

his constitutional privilege ....... Du eaeueas on 23

The Lawyer’s Role as a F iduciagy | ‘ - 27

Conflicting Views as to the Lawyer’s Status .... 27

Answers to Other Arguyents ‘o daa Gti bate cau hpwace

Post 111—Petitioner has been accorded the fullest

measure of procedural due process

? med

Conclusion ............... ase lieceiveessersacese

Appendix--.......... usta eens hicee rs caese. "

\ Cases Crrev’

Anonynious v. Baker, 360 U.S. 287 iceaeyevadeseds 45,65

Anonymous No. 14 v. Arkwright, cert. den. 359.

ee Pema & Vis telecneeMageicas om

_ Anonymous Nos. 16 and 17 v. Arkwright, cert. den...

350°U. S.. 1008 .....:.... icuibeeseua ua weeuees 4

Anonymous (No. 1) v. Hart, cert. den. 359 U.S. 953 4 ;

Beilan v. Board of Edue., 357 UL S. 3990-69000... 12, 21, 22,

, 24, 1 OO

Canteline v. McClellan, 289/N. Y. 166 .........5... ot, 21

Christal v. Police Comm. . od Cal. App. 2d S64. 1D 21, 25, 26

Lal

mae = -* S iii -

PAGE

Ex parte W all, wr oe 3% gee Is

Greenberg v. United States, ZO LW 2025 (C.C.A. |

In re Cioffi, 21 Mise.-2d sis, aff do N D. 2d 425, aff'd

m. T, 4.5. Dele 06 WOE... oases od... 0, ob

In re Isserman, ail U.S. 286,289... eee PPT ae

Lerner v. Casey, : 2 x. Y. 2d 2, aff'd 357 U.S.

Me cacceeerecayees® Seleeates ees W210, ance

Matter of Bar Association of the City wf New Nork, ~

222 App. Div: SAD, SAE oF... ee cee eo cnes «14,19

Matter of Brooklyn Bar Association, 225 pp. Div.

149 (2nd Dept. 128) ........ Serer ee Te ane

Matter of Ellis, 282 N. Y. 4) i waatenan ead ean ts . 22

Matter of Grae, 82. NOY. 48 04000... Pres a

Matter of Neuman, 169 App: Div. G28... ee oP s

- Matter of Rouss, 221. N.Y. 81, 84-85 (117)... 12, 26

Matter of Williams, 138; KF. .Supn. 279,280 ......... 1

Me Auliffe v. New Bedford, 1nd Mana, 216 eae ke - it

Meinhard v. Salmon, 249 N.Y 2 Re eee oe

Nelson ¢. Los Angeles cia! re U..8 } .:..48, 20,2

: ; . — Fh

People ex rel, Karlin v. Culkin, Ys ®, Y, 465 24.6, 12,15,

_— 1d, I, as |

Ne hware v. ‘Board of Bar Examiners of New Mexico;

BAS U.S. 232, QAT-BAD- . ee ens re 3.19

Theard v. United States, 354 US, 278, 281 a an bs!

; /

+ Usrrep States Constirution

Amendment XLV, Section 1, Clause 2 ............055 2

awe

fe i

iv : * INDEX

STATUTE INVOLVED

PAGE -

Section 90 -of the Judiciary. Law of the State of A

SIR CREE SAS ae atid ha Geeta oc lA

New York Stati: Constitution

Article 1, Section 6 .......... aewawre eee iveeninate 9, 26

Section 27 (Constitution of 1777) .................. 14

% New York Penat Law

8 * MISCELLANEOUS,

Drinker on ‘‘Legal Ethies’”’ ...... Sih wisn hwnd eaens 18, 19

IN THE

‘Supreme Court of the uted States

OCTOBER TERM, 1960

ve" * No. 84

Iw THE Matters ~*~

2 q ‘

Ausert Martin CoHEN, a

; Petitioner,

¢ v.

* Denis M. Hustey, a

3 | Hespondent.

é.

BRIEF FOR RESPONDENT

Petitioner, Albert Martin Cohen, a New York attorney,

hy writ of certiorari granted by this Court, has been al-

lowed review of an order of the Appellate Division of the’

Supreme Court of the State of New York, Second Judicial -

. Department, disbarring him from the practice of law for

‘professional misconduct. The Court of Appeals of New ‘

_ York affirmed the.order of disbarment. The misconduct -

found was that Cohen hindered and impeded a judicial in-

quiry that had been ordered by the Appellate Division .

(a) by refusing to answer questions concerning is profes-

sional conduct, which-were relevant, to the inquiry and

(b) by refusing to produce relevant records set forth in a

subpoena duces tecum served upon him. |

Statement. ba

Since petitioner claims that: New York acted arbitrarily

in disciplining him, a statement of the essential facts and

the procedure fcllowed is in order.

The genesis of this proceeding isa judicial inquiry

undertaken by direction of the Appellate Division: Second

Department. Advised by the Brooklyn Bar Association’s —

petition (presented after its own <i ay of serious

abuses and unethical practices by attorneys\ in Kings

County® with respect to their procurement of negligence

cases .on @ contingent basis and with respect to their prose-

cution of such cases, the Appellate Division in the exercise.

of its inherent and statutory power and duty (N.Y. Const.,

Art. VI, See. 2; Judiciary Law, See. *90; Péople ex rel.

Karlin v.C ulkin, 248 N.Y. 465), ordered a judicial inquiry.

The inquiry Was cekiet with respect to” the alleged

egal, corrupt 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 these evil practices with a view to enabling the Appel-

late Division, to adopt appropriate measures to eliminate

‘them and to discipline those attorneys found to have en- —

gaged in them. (For a more complete discussion of the

origin of the inquiry, its breadth and. scope, see Brief for

Appellee, pages 3-., Anonymous v. Baker, 360 U. S. 287.

This Court has already had oecagion to consider the work

and problems of this judicial inquiry -on four other occa-

sions: Anonymous v. Baker, supra; Anonymous No. 14-v.

Arkwright, cert. den., 359 1. S. 1009; Anonymous NOs, 16

and 17 ¥. Arkwright, cert. den., 359 U. S. 1009; Anonymous

(No. 1) v. Hart, cert. den., 359 U.S. 953. For that reason.

* The County of Kings of the State gf New York and the

Borough of Brooklyn of the City of New-York are co-terminus.

al a

oa dy

ies SPY are ITS

: ;

no further statement of the purpose or seope of the inquiry

is here required.

Rule 3 of the Hlescial Rules Regulating the Conduet of —

Attorneys promulgated by the Appellate Division, Second

| fepartment, provides that an attorney -who enttrs into

contingent-fee agreements for his services in personal

injury, wrongful death, property damage, and certain other

kinds of cases, must file statements as to such agreements

with ‘the court and, if he enters into five or more such

agreements in any year, he must give to the eourt in

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

tained .This Rule was aropted as the résult of previous

- Judicial i inquiries.

During the period 1954 to 158. inclusive, pursuant to

the provisions of said Rule, sii, 4 canaleliah in negli-

cence cases, filed 228 statements as to retainer in his own

name. In addition, 76 such statements ‘were filed in

_ the firm name of Cohen & Rothenberg, thus indicating that

‘petitioner, dnd bis law firm had been retained on a con-

tingent basis in a total of 304 negligence cases in five ‘vears

(R. 33-35). The inquiry therefore deemed it advisable to

eal petitioner as/one of its witnesses,

Petitioner’s ‘Pistimeny’ at the

Additional Special Term.

Petitioner was duly subpoenaed to testify onl to produce \

his records with respect to sue ‘h cases before the Justicon )

sonignnnee by. the. Appellate tiem te conduct and pre-*

’ A public report of the inguiry’s findings shows that serious

abuses and unethical practices abound in the negligence field in

Kings County (N.Y.L:J., June 23, 1958, p. 1; pertinent exverpts

of this report are found in Appendix C of appellee's brief in

Anonymous v. Baker, 360 U. S. 287). A similar investigation m

two other counties in New York City revealed an equally sordid

“picture (N.Y.L.J., December 3 and 4, 1959, editorial page; this

report is appendix I of ‘the brief amicus curiae in the instant pro-

ceeding submitted by the Co- ordivating Committee on eet.

t .

6 .

side at the inquiry at an Additional Special Te ‘rm -of the

Supreme Court ‘of the State of New York, Kings County.

Petitioner appeared before thé inquiry on two separate

occasions, that ix, on October 28, 1958 and on Mav 19, 1959

GR. 22; 28). On both oceasions he was represented by

counsel (‘R. 22; 28). In his discretion, ‘the Justice presid:

- ing permitted petitioner full representation by counsel ‘at’

all stages of the proceeding (see. Anonymous v. Baker, 360.

U.S. 287 at p. 292). Counsel for the inquiry explained -

the nature of and: authority for the inquiry (R. 23; 31-32 ). |

Petitioner and h® attorney were informed by the inquiry’s’

counsel and by the court that this was an investigation and

not an adv Pa proceeding (see Anonymous v. Baker, 360

U. S. 287, ; People ex rel. Karlin v. Culkin, 248 N.Y.

a 479), eb there were no respondents or défendants

_(R. 20; 43), that petitioner was *‘not being charged with

anything’? but was to he questioned as to pertinent, facts

*‘within the scope of the Inquiry’? and which were thought :

to ‘‘bear on or rélate to your professional conduct,’’ and

also that counsel for the inquiry had *‘information ‘that

indicates vour parti¢ipation in professional misconduct”

(R. 32-33).

Counsel for thé inquiry then put into evidence the 304

“Statements of Retainer’? filed by petitioner and the firm

of Cohen & Rothenberg during the vears 1954 through 1958

(R. 33-35). ‘Counsel for the inquiry informed petitioner

and the court that. all these retainer statements avere of-

fered in evidence ‘fas a basis for some of the questions to .

follow’? (R. 33). Actually, the recorddiscloses that prac-

tically every question asked petitioner had its basis in his

own Statements filed with the court.

Petitioner answered a few preliminary questions as to

how long and where he had jiracti¢ed law (R. 22-23, 35-36).

About sixty (60) 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, he refused to

answer any of thei, except questions as fo whether he had

iS a 7 *

failed in any case to comply with Special Rule 3 (R. 43),.

whether he Was familiar with a rule*requiring an attorney

to maintain records of negligence cases for a stated period

of time (R. 42), and whether he maintained a separate

office hank account (R. D1). .

He stated, as his ground for refusing to answer that

‘my answer may tend:-to incriminate or degrade me and

may tend to expose me to a penalty or forfeiture’? (R. 23

et seq.; 36 et seq.). On one oceasion he added ‘and I rely

on the privileges ‘accorded me under the New York State

and Federal Constitutions’’ (R. 36; and see R. 38).

The unanswered questions related to the identity of his -

law office partners, assoc iates and employees (R. 24, 36);

to his possession of the records of the tases. described in

his Statements of Retainer (RJ 39-40); to any ge age

of such records (R. 41); to his bank accounts. (R. 40); te

his paying police officers (R. 44), court or prison employ eds

(R. 44), ér others (specifically mentioned by name) for

referring claims to him (R. 45): to his paying insurance-

company employ ‘ees for referring cases to him (R. 45); and

to his promising to pay any ‘‘lay person’’ ten percent of

recoveries or séttlements (R. 61).

Petitioner was further asked—and refused to answer—

whether he had made or agreed to make such payments to

jay of several named persons (R. 45-47); w ‘hether he had

_. hired or paid non-lawyérs to arrange settlements. of his

cases with insurance companies (R. 48); whether his part-

‘ner Rothenberg had been. indicted for and had pleaded

guilty to violations of Sections 270-a and 270-d of the New

_York State Penal Law which forbid solicitation of legal

business .or the employment by Jawyers of such solicitors

+R, 49-50) ; and whether he had knowledge of the claini of a

named clignt who had been referred to him by Rotlienberg

(R. 50-51

The particular client named was Patrick McCormack,

by. occapation a guard in tie city prison. ~Petitiongr’s

‘ .

Statement of Retainer (R. 48-49; see appendix) shows .

’ hat petitioner was retained by McCormack on September

‘| 1955 in connection with an injuty sustained on August

9, 1955. The Statement of Retainer shows that Me-

~ Cormack was referred to petitioner by his law partner

Rothenberg. Rothenberg was in jail for ‘*ambulance chas-

ing’’ at the time of MceCormack’s injury: He was also.

in prison at the time he referred the prison- guard to

petitioner (R. 49).

At one stage of the questioning, counsel for the Inquiry. |}

pointedly called to petitioner's attention Section 90 of ‘the

Judiciary Law whjch gives the appellate -divisions ‘ex-.

clusive and plenary power and coutrol over lawyers and —

authority to punish professional misconduct or conduct

prejudicial to the administration of justice (R. 4). At

that time. the Inquiry’s counsel cited Canon. 22 of the

Canons of Professional Ethics*. requiring lawyers to be

candid and frank when before the court; Canons 28 and 29

‘forbidding the payment of awards to persons bringing in

legal business and retjuiring lawyers knowing of such prac-

tices to inform the court thereof; Canon 34. outlawing

‘division of fees except with other lawyers; also Sections

270-a, 270-b, 270-c, 270-d and 276 of the New York State

Penal Law, all relating to ®licitmg and fee-splitting (R.

“34-56). . ;

Counsel for the Inquiry warned petitioner and his counsel

that ‘‘serious consequences’’ might flow from refusal. to

answer, albeit he invoked\his constitutional privilege

(R. 54). Eve

1 ee" fos

. * The Canons of’ Professional Ethics'are contained in New York

State. Judiciary Law (McKinney's Book 29, 1948), Appendix,

p. 764. In New York, an attorney will be disciplined for viola-

tion of these canons. Matter of Neuman, 169 App. Div. 638.

‘Recently the United States Circuit Court of Appeals for the

First Circuit reversed an income tax vonviction because the prose-"

_ cuting attorney violated.Canon 15 at the trial. Greenberg v. United

States, 29 LW 2023 (C.C.A. Ist Cif, July 12, 1960). .

etitioner’s counsel replied that he was relying on Mat-

ter of Grae (282 N. 'Y, 428) and Matter of Ellis (282 N. Y?

435), as holding that there could not be any ** consequences ”’

to lawyers for ‘‘doing what they had an absolute legal

_ right to de’’ (R. 58). Petitioner was given a further op-

portunity by the court to answer but persisted in his re-

. fusal (R. 59- 60), all this being admitted in his pleading in

this proceeding (R. 61-62).

Thereafter, the Justice presiding at the Judicial Inquiry

filed with the Appellate Division a transcript of the pro-

ceedings had before him with a recommendation that

disciplinary’ proceedings be instituted against petitioner

(R. 17).

The AppeHate Division directed this respondent, coun-

sel to the Inquiry, to commence disciplinary proceedings

against ‘petitioner (R. 17). -In accordance with section 90,

“subd. 6, of the Judiciary ,Law, respondent -instifuted dis-

ciplinary proceedings against petitioner by service upon

him of an order to show cause and a petition containing

the charge against petitioner (R. 5-16). Petitioner’s an-

swer admitted all of the factual allegations in the petition

(R. 61-62). Thus, there was raised no, issue of fact to be

tried. \ | .

- Accordingly, there remained for consideration by the

Appellate Division a question of law only which was posed

by petitioner in his affirmative defense, namely, that ‘he |

' was within his legal and constitutional rights and moral

prerogative in pleading the privilege against -self-incrimi-

‘nation * * * under Article 1, Section 6 of the New York

_ State Constitutigy,’’ and that; under the circumstances

‘the inposition of any discipline upon * * * (petitioner)

* * * would be a denial to h a of due precess in- Violation

of his rights under the Constitution of the State of New

_ York and under the Fourteenth Amendment of the Con-

stitution of the United States’’ (R. 61-62).

—

10 |

After shiinttesion 9 of briefs and oral argument, the pro;

. “coeding before the Appellate Division culminated = its

‘order of disbarment dated December 31, 1959 (R. 3). On

appeal. to the Court of Appeals, this order was a are

‘(April 1, 1960).

ee Seateley of Aims

3S Membership i in the Bar is a privilege burdened with

exacting conditions. The status of one who becomes a

ps ee

_ —thember of-the Bar is.akin to that of a trustee or fiduciary

and the conditions of membership in the Bar are continuins’

and may not be broken after admission to the Bar. If

such conditions are broken the oe to practice, law is

lost. ‘

Among the conditions eeu upon the lawy er-fiduciary

are the duties: to cooperate with the Court in the conduct

of a judicial inquiry; to answer relevant questions posed

by the Court or by the agency conducting the inquiry on

its behalf; and to givé an accounting of his stewardship

as a lawyer. ,

The refusal of a lawyer to answer relevant questions,

without-more, constitutes a breach of those duties,’ and

warrants the taking < of disciplinary action against. the

lawyer.

Il. The fact that a lawyer chooses to place. his refusal,

to answer on a claim of his constitutional/privilege against

-self-incrimination does not rob the Court;of its power to

discipline. the lawyer for refusing to answer relevant

questions.

oie ee eae

The lawyer is-not being. disciplined for invoking his con- ~

stitutional privilege but for a breach of his lawyer’s duty.

di to speak up. The lawyer like every other citizen, is en-

titled to invoke the constitutional privilege and the courts

must sustain such invocation. This i is the full extent of the

constitutional gue rantee.

7, 3 il

However, the lawyer is more than an ordinary citizen;

he is a citizen-plus whose duty of forthrightness and can-.

dor is as great, if not indeed greater, than that of public

employees who are subject to dismissal for Jack of eandor

notwithstanding the plea of ‘the constitutional gh

| (See Lerner v. Casey,.2 N, Y. 2d 355, aff'd, 357 U.

. 468; Beilan v. Board of Edue.? 357 U. S. 399 ; Paw

v. Los’ Angeles County, 362 U. S. 1; -Christal v. Police —

Comm., 33 Cal. App. 2@564; Canteline v. McClellan, 282

N. Y. 166; McAuliffe v. Bedford, 155 Mass. 216.)

Ill. The. petitioner was accorded the fullest 1 measure of

procedural due process. ‘ |

The petitioner was not dndiglnda because he failed to

« Meet. undisclosed inforination from unknown sources. The

giceg # source of information as to petitioner’s activities.

was his own Statements of Retainer filed by him with the,

Appellate Division. He was disciplined for his refusal to

answer relevant questions, based upon information ob-

tained from his own" records. | !

"At all times petitioner had the full benefit of counsel.

During the course of the inquiry he was fully advised of

his duty to answer and of the fact that his refusal to an-

swer might give rise.to disciplinary action. In spite of’

, such warnings he persisted in his ‘course of refusal to.

. « answer.

Accordingly, the claim that petitioner was grant of

procedural es is without substance.

“

“ e

‘“eemibieslilp te the Ber te 0. Prictiogs

Burdened With Conditions.” ._ - a.

. Settled beyond doubt is the rule that. membership in

the Bar is not a right but a privilege burdened with con-

tinuous and exacting conditions, with. particular emphasis

upon character and fitness. As Judge Cardozo wrote in

Matter of Rouss, 221 N. Y. 81, 84-85 (1917) :

‘Membership in the Bar is a privilege burdened

with, conditions. A fair private and professional

character .is one of them. Compliance with that con-

dition is essential at-the moment of admission; but

,it is equailly essential afterwards. *.* * Whenever the

condition is broken, the privilege if lost. To refuse

admission to an unworthy applicant is not: to punish

him for his past offenses. The examination into char-

‘ acter, like the examination 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 is renewed;

and thie test of fitness j is no longer satisfied. For these

~-~“Yeasons courts have nepententy said that disbarment

is not punishment. “

, Also, as Chief Judge Cardozo affirmed in People ex rel:

Karlin v. Culkin, 248 N. Y. 465, 470-471, a lawyer is ‘‘an

officer of the court, and like the court itself, an instrument

« ey B . <4

or. agency to advance the ‘nde of jumtice,”’ and: ‘*Co-

operation between court and officer in furtherance of justice

is a-phrase without reality if the officer may then be silent

in the face’of a command to speak."’

In the caye at bar, the Appellaté Division and the Court

of Appeals emphasized that membership in the legal pro-

fession is a revocable privilege. Our New York courts

followed the rule’ of this court, that: ‘There is no vested

right in an’ individual to practice law. Rather there is. a

right in the Court to protect itself, and hence society, as

an instrument of justice’’ (Vi inson, Ch. J., In re Isserman,

345 U. S.:286, 289).

Furthermore, the courts of New York have here simply

applied their sanction >to the standards of conduct for

lawyers so eloquently promulgated by this Court: that a

lawyer must be imbued with-and demonstrate ‘‘tliose quali-

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

discretion, of the strictest observance of fiduciary respon-

sibility, that have, throughout the centuries, been com-

pendiously described as ‘moral character’ which ‘has been

the historic unquestioned prerequisite of fitness’ to be a

member of the Bar, and that to ‘a wide and deep extent, the

law depends upon the disciplined standards of the profes-

sion and belief in the integrity of the courts’ *’ (Mr. Jus- °

tice Frankfurter’in Schware y. Board of Bar Examiners of

New Mexico, 353 U. S: 232, 247-249). (Emphasis ours.)

Plenary Power of the Court

to Control

ey ;

Mindful that membership in the Bar is a ‘revocable

privilege, we turn to a consideration of the court's power

to suprvise and control the conduct of attorneys.

A scholarly \review of the history of the far-reaching

control possessed by the courts over'the conduct of attor- -

neys is —, Vv Carpozo, Ch. J., in Karlin, supra. He :

; .

‘ ~14-"

; vues”

points out (at pp. 471-472) that Section 27 of the New

York State Constitution of 1777 provided that all attorneys

appointed and licensed to practice shall ‘he ‘‘regulated by

the rules and orders”’ of the courts. Particularly relevant

to the questions posed by the case at bar is the discussion

in Karlin of the centuries old procedure: in England

whereby a barrister was under a duty to answer regarding

-his professional behavior under penalty of expulsion,.pages

i 472473: ;

‘“‘Would the men who arn tie Constitution of

1777 have been in doubt for a moment that a rule or

order might be made whereby lawyers would be under .

a duty, when so directed by the court, to give aid by

their testimony ‘in uncovering abuses? We find’ the:

answer to these questions when we view the history

of the profession in its home across the seas.

“6680 @ @

the benchérs of his inn might i inquire of his. behavior.

We can hardly doubt that refusal is answer would

have been followed by expulsion. * * * Short shrift

would there have been for the barrister who refused ©

—* to make answer as to his professional behavior in de-

fiance of the vistigre. — (Emphasis ours. )

The power of the judiciary. to supervise per control the »

conduct of attorneys is no less plenary today than it was

when our system of jurisprudence was first established.

' That power is not only vested in the Appellate Division by

statute (Judiciary “Law, Section 90), but it is also inherent

in the court (Matter of Bar ‘Association of the City of

‘New York, 222 App. Div. 580; 584).°*

— =

° * The visitors were the judges who had supervisory control

over the inns of court and«who éxercised this control if the benchers

of the inns failed to perform their duties.

** See also opinion of the Appellate Division in the instant case

(R. 90-91; 9 A. D. 2d at 499-49).

If a barrister was, suspected of misconduct, |

~It- is also evident that. a preliminary inquiry as to a

lawyer's conduct may be made by the court itself or it may

appoint someone else for that purpose. ~ Judiciary Law,

Section 90, subd.-6; People ex rel. Karlin-y. Culkin, supra;

Matter of Bar Association of the City of New York, supra;

Matter of Brooklyn Bar Association, 223 App. Div. 149

(2nd Dept. 1928). Here, the Appellate Division directed

that the investigation be conducted on its behsif by the

Judicial Inquiry. The Supreme Court Justice presiding

at the inquiry: was directed to hear the evidence and to

report his findings and recommendations to the Ajpellate —

Division. Thus, the Judicial Inquiry is the alter ego of the

court. As such, a proper relevant question asked by the

Judicial Inquiry is the same as if the question were asked

directly by the. Appellate Division. ;

To complement Section 90, the Appellate Division has

promulgated Special Rules regulating the conduct of at-

térneys in its Judicial Department. The genesis af such

io in previous judicial inquiries. . For example, with

respect to ‘tnegligence. cases,”’ Rule 3 requires an attorney

to file a statement of retainer setting forth certain pre-

scribed items Rs information. We specifically mention

Rule 3 because the questions that petitioner refused to

answer and the records that he refused to produce relate

to the very negligence cases for which he was required to

file a statement of retainer. In this connection, we hgain

repeat that most of the factual data included in the ques-

‘tions put to petitioner came from pétitioner’s filed State-

nents of Retainer.

Basis of Dissightanty Charge

Preferred. Against Petitioner.

Having demonstrated that membership in the Bar is a

,privilege burdened with, continuous conditions, and that

the courts have plenary power to determine whether an at-

torney has breached one of such conditions, we turn to the

charge leveled against petitioner.

- Petitioner was charged with professional misconduct, the

* specification of misconduct being set forth in paragraph

23 of the petition submitted by respondent (R. 15).

Because of petitioner’s insistence that he was disciplined

for asserting his constitutional privilege,we-emphasize the ~

fact that the petition presented to the court by respondent

sought to discipline petitioner, not on the ground that he

chad asserted his constitutional privilege against self-in-

crimination, but precisely upon the ground (as stated in

paragraph 23 of the petition) that his refusal to answer

relevant questions and his refusal to produce releyant

_ 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-‘‘eontrary to

the standards of candor and frankness that are required

* * * of a lawyer to the Court’’, (b) are ‘‘in defiance of.

and flout the authority of the Court to inquire into and

elicit information within respondent’s knowledge relating

to his conduct and practices as a lawyer’’, (c) have ‘‘hin-

dered and impeded the Judicial Inquiry’? which had been

ordered by the Appellate Division, and (d) have resulted

in respondent's withholding ‘‘vital information bearing

upon his conduct, character, fitness, integrity, trust and re-

liability as a mémber of the legal profession’’ (R. 15).

In this context, the Appellate Division plainly stated the

issue presented to it (R. 65): ‘

‘*Thus, the sole question for our determination is

whether the * * ° [petitioner], by. reason “of his re- |

fusal to answer relevant questions and to produce rele-

vant records, may he disciplined as a lawyer * ° *.’’

The Appellate. Division and the Court of Appeals of the

‘State of New York have both ruled that petitioner laid him-

Self open to discipline when he refused to. answer relevant

questions and produce relevant records for the information

and scrutiny of the Appellate Division in the course of

that co¥rt’s inquiry and investigation.

dl ‘

‘

a @ a — - |

The Lawyer’s gis to Answer Relevant

_ Questions in a Judicial taquiry.

It has already been shown that ‘* Membership in the bar

is a privilege burdened with-conditions”” (Matter of Rouss,

221 N. Y. 81, 85, supra). In affirming the order. disbarring

petitioner, the Court of Appeals noted that (R. 85):

**Those conditions must not be arbitrary but the .

. proper and appropriate ones arepumerous.”’

Among other things an attorney cannot solicit retainers

-or employ others to solicit them for him, or divide lis

fees with laymen (New York Pena! Law, Sees. 270-a, 270-h,

270-c, 270-d, 276). If he knows of such practices by others,

he must inform ‘the court {Canon 29) and he must be

candid and frank wii!. the court at all times (Canon 22

That being so, it follow. that a lawyer, obviously possess-

‘ing pertinent information, owes a duty to the Bar ind °

to the court to help expose and uproot such evil practices

and corruptiva at the Bar and in the courts with respect

to negligence cases. Manifestly, such duty can be dis-

charged only by candid answers to relevant questions. In

the words of the, A:ypellate Division (R. 67-68) :

‘Can he [the lawyer], with impunity, disregard

_ the eanons of e-hies and cast io the winds all in-

‘= quiries into his professional cond as a lawyer?

Can he disregard his obligation to be frank and caudid . .

with the court? Can he negate his duty to cooperate

with this court to expose. the evil and unethical prac-

tices at the Bar and-in the courts? Can he refuse

to assist this court in its quest to maintain the jn-

tegrity and morality of the members of the Bar and

to maintain the high standards of the legal profes-ion?.

We say, emphatically no.”’ ( Emphasis ours.)

In iniaiatiie a person to practice the profession of: the

law, the court represents to society at large that here’

is an hendrable man deserving of its trust and confidence—

one who is worthy to uphold the honor of the_professien ~~

and the dignity of the court.. When the lawyer, as an

officer-of the ¢ court, refuses to give an accoufting of his

‘stewardship, and .réfuses to answer to the court for his

professional practices, then the lawyer loses his ‘‘good

standing’’ as an instrument or agency to advance the

ends of justice. (See Théeard v. United States, 354 U. S.

278, 281.) Disbarment must follow usé the court can

no longer represent to the public that the lawyer is worthy.

of its trust and confidence.* Henee;the courts say that

disharment-is not by way of punishment of the individual,

. but “*for the protection of both the court and the pub-

lie * * * from the official ministration of persons unfit to

practice’’ (Ex parte Wall, 107 U. S. 265, 288, 307). °

The principle thus enunciated was adopted by the Ameri-

ean Bar Association in this language: “The purpose

of discipline of lawyers is the protection of the public,

the profession dnd the adjninistration of justi¢e, and not

the punishment of the person disciplined.’’** ' |

Counsel for petitioner ‘indulges in dire -predictions

with respect to the ruling. in this case upon every New’

York lawyer similarly situatéd and indeed upon all non-

lawyer licensees not here even remotely involved. Such

speculation has no bearing upon the problem of whether

this particular casé offends federal due process. Nor aré

we here concerned with anyone éxcept a member of the.

bar—a professional burdened with fiduciary responsibility.

The opinions of the New York courts in this case formu- -

late and enuncjate state policy specifically governing the

conduct of New York lawyers. The standard of conduct

mandated for lawyers.is high‘but no higher than the stand-

ard traditionally demanded by our courts down through

* See also Drinker on “Legal Ethics”, pages 35-38.

** 80 A.B. A. Rep. (1955) 470.

the centuries. (See People ex rel. Karlin v. € "ulkin, 248

'N. Y. 465.) The promulgation of such standards by a local

state court do not in any sense violate fedéral due process.

The state courts rejected petitioner's contention that he

was deprived of due process—-and did so Upon a } rational

basis and sokd grounds,

When an applicant is admitted’ to the -bar, he is held

out and certified by, the admitting court as a person in

whom the court places its confidence and‘ trust: (see

Drinker ‘** Legal Ethies”’, pp. 36, 37 and cases cited). Upon

the basis of that representation, clients confide their most

precious gauses to him, Relying upon the court’s certifica-

tion, clients entrust the lawyer with their most sacred

confidences, with the defense of their properties, their

liberties and their lives. Clients every day place ‘such

-trust even in lawyers who’are strangers to them and whom

they meet for the first time when in difficulty. .

In a broader sense, every American lawyer is a trustee

of the vast rich heritage of the common law \and all that

it stands for. Thus, u upon admission, in reality a lawyer

hecomes a trustee. It is for this reason that the courts ,

below spurned the concept that an attorney.is a mere li-

censee of the State, with no higher obligations than a bare

licensee, or that the lawyer here has been consigned to the

same category as such licensees as bail bondsmen, hair-

dressers, -restaurant owners, mortician’ taxicab drivers,

merchants, peddlers, and motorists, as urged by our ad-

versaries, ~ apt

To the contrary, the courts below have simply reaffirmed

that the status of an attorney: is more akin to that of a

trustee or, fiduciary and that his obligations and responsi-

bilities are just as sacrosanct, if not more so, That this

is the historie view of the exalted status of the lawyer in

American society has been uniformly. attested. to by our

courts time and again. (Schware v. Board of Bar Exam- .

‘iners of New Mexico, 353 U.S. 232, 247; Matter of Wil-

liams, 158 F. Supp. 279, 280.)

eee 2.

When a trustee or fiduciary is called upon ‘to give an

accounting of his stewardship he must.do so or forfeit his’

_trusteeship. That is the case here. = - a

In the landmark case of Meinhard v. Salmon, 249 N. Y.-

458, Chief Judge Cardozo spelled’ out the nature of a trus-

tee’s duty in these now famous words: ee

“Many forms of conduct permissible i in a workaday

world for those acting at arm’s length, are forbidden

to those bound by fiduciary ties. A trustee is held to

something stricter than. the morals of the market place.

Not honesty alone, but the punctilio-of an honor the -

most sensitive, is then the standard of behavior. As

‘ to this there has developed a tradition that ‘is unbend-

ing: and inveterate.’’ +

Such language is niiibde in full force to all those |

who become trustees of the heritage of the law.

The thrust of petitioner’s argument is that he was ‘arbi-

trarily deprived of the privilege of practicing law.. This

arguinent closes its eyes to the record; it is blind-and deaf

to the profound reasoning and judging * contained in the

opinions of the courts of New York i in this case.

Petitianer was-disciplined for the breach of one of the

conditions, with which the .privilege of membership jn the

Bar is burdened. He was disciplined precisely for refus-

ing to give an accounting of his stewardship as a lawyer;

for lack of candor; for breach of his inherent obligation

as an officer of the court; and for impeding the inquiry

ordered by the court. For these reasons, the courts of ~

New: York decreed that he could be steward no longer.

Petitioner’s claim that he was arbitrarily disciplined is ~

based upon the notion that no state may constitutionally

discipline a lawyer for refusing to answer relevant ques-

tions posed by a:state judicial inquiry. (See Petitioner’s

- brief, pp. 21, e¢ seq.) These are strange words to be a aaa

by a fiduciary of the public trust. .

- x2

This court has held that public employees are subject

to dismissal for refusjng to: answer pertinent questions

posed by the employer-municipality (Lerner v. Casey, 2.

N. Y. 2d 355, affd. 357 U. S. 468; Beilan v. Board of Educ.,

357 U. S. 399; Nelson v. Los Angeles County, 362 U. Se 1;

'.and see Christal v. Police Comm., 33 Cal. Apyf. 2d 564;

Canteline v. McClellan, 282 N. Y. 166).. The underlying

theme of these cases is that the duty of forthrightness at-

taches to public employment.° Simply put, whenever a pub-

lic employer questions an employee it is.entitied to answers,

‘ and to honest answers, from its employee. -Phrased dif-

ferently, these cases stand for the proposition that public

employment is burdened with conditions, one of the condi-.

* tions being. forthrightness.

Can it reasonably be said that a lawyer’s duty of forth-

rightness to his supervisory court is not as great as that

ofa public employee -to higsuperior? Has the character

of the legal profession sunk to the low level where the duty

_ of candor which an attorney owes the bench, bar and public ,

is not as great as that which a subway conductor (the

_ Lerner case) owes to tlie public? Yet, this is the end result

which petitioner's principal argument in this Court would

make inevitable. ~~

~ Tf,'as the courts of New York State with ee reason

and abundant precedent have held, the refusal of a lawyer,

without more, to answer relevant questions posed by a state |

- judicial inquiry warrants the taking of disciplinary action

against the lawyer, the fact that, the’ lawyer may have

chosen to place his’ refusal on a ‘claim of constitutional

privilege against self-incrimination does not put the matter

in any different posture. As a citizen, he. may thus escape

possible criminal prosecution. But, as an officer of the

court, he may not thus shirk the solemn obligations of his

lawyerhood.

POINT Ie

-_ a citizen: petitioner had tip right to invoke the

constitutional privilege against self-incrimination. As

a lawyer, petitioner was under a duty to answer to the

court. Petitioner may not evade the disciplinary con-

sequences for a breach of his dhity to speak up as a

lawyer by choosing ta remain silent under the a:

of his constitutional privilege. “1

Tn. this. Court, as in the.New York State courts, petitioner |

persists in asserting that he was disciplined for invoking

his constitutional privilege against self- inerimination. . Tlie

opinions below helie any such claim.

The Appellate Division, in disbarring petitioner, spe cifi-

~ eally declared (R. 76-77) :

“To avoid any. possible doubt as to our position, we |

. State again that the basis for any disciplinary action _.

by this court is. not the fact that respondent has in-

xoked his constitutional privilege against self-in-

-. crimination, 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 deter-

mine incidentally whether he had committed. any acts

of professional misconduct Which destroyed the char-

acter and fitness required of him as a condition of his -

retention of the privilege of remaining a member, of the

Bar.”’ ee

. Petitioner takes the view that the foregoing statement of

_ the Appellate Division is grounded in semantics. This

Court has already rejected the ‘*semanties’’ argument in

the cases of Lerner v. Casey, 357 U.S. 468, aff’g, 2.N. Y. 2d

' 355, aff’g, 2 A. D. 2d.1; Beilan v. Board of Education, 357.

U.S. 399; and Nelson v. Los Angeles County, 362 U. S.-1.

In Lerner, petitioner was ‘an employee of the New York :

City Transit Authority. He refused to answer questions.”

—

of his employer based on the exercise of his privilege

against self-incrimination. On that premise, Lerner argued

that he could not be ‘dismissed. The Appellate Division .

rejected that contention and upheld Lerner’s distiissal for

refusal to answer *‘on whatever grounds’’ (2 A. D. 2d 355).

Chief Judge Conway, who wrote the opinion for the Court

of Appeals, reaffirmed the fact that petitioner had not been

discharged for invoking the privilege against self-inerimina-

tion but for refusing to answer relevant questions concern-

ing his trustworthiness and reliability.

- To prove the truth of this statement Chief Judge ‘onway

employed a supposititious example (2 N. Y. 2d at€p. 369):

‘‘It seems to us that it would be more clear if we

- supposititiously divided the conduct of petitioner r into

two parts. -The first, wher? he was asked by ‘his eui-

‘ployer whether he was thon a member of the Com- -

' munist Party. That question he refused to answer. He

then left the room. Certainly by that conduct he would

have: given evidence of his own untrustworthiness and

‘-unréliability. Suppose,‘then as the second part of -his

conduct, -he returned five minutes later and told the

Commissioner of Investigation that he had refused to-

answer his question because to do so might tend to in-

‘ criminate him. May not. the employer discharge an

employee who refuses to answeg-his proper question!

_ If the petitioner, m the case wes 2 sed, had not returned

reason for his- conduct, we think all would agree that -

he was properly discharged. Does it change the situa-

tion because he returns to say that he refused to

answer because to do so might tend to incriminate him!

‘Does that explanation destroy the evidence which he

has given to his employer of his, untrustworthiness and

unreliability as a security risk? Does the explanation

» require that the employer consider without any doubt _

that the employee by his explan«tion has again become

‘trustworthy and. reliable as a,seeurity risk as a mnatter

of law a We think not.”’

The order of the Court of Appeals in Lerner was af-

firmed by this Court (357 U. S. 468) upon the reasoning»

that Lerner’s dismissal for his refusal to’ answer ‘“was: not

_ destroyed by the claim of the Fifth Amendment privilege

heeause the Commissioner was not required to accept that

claim as an adequate explanation of the refusal’? (Mr.

Justice Harlan at p. 476).

In Beilan, supra, a school teacher was dismissed’ for re-,

fusing to answer relevant questions in an inquiry by the

2Superintendent of Schools. . This Court upbeld the dis-

‘ missal stating (357 U.S. at pp. 405-406) : ;

‘‘By engaging in teaching in the public schools, peti-

tioner did not give up his right to freedom of beiief,

- speech or association. He did, however, undertake

obligations of frankness, candor and co-operation in

answering. inquiries made of :him by his employing

Board examining into his fitness to serve it as a public

schoo] teacher.’’ :

In Nelson, petitioners had been ordered by their é¢m-

ployer, the County of Los Angeles, to answer any questions __

asked of them by a Congressional subcommittee before: .

which they had been subpoenaed. There was a- California

statute -making.it the duty of any public. employee so

subpoenaed to answer any «uestions as to his membership

in any organization advocating the forceful overthrow of

the United - States’ government. Petitioners refused to

answer any questions on Fifth Amendment grounds and

were thereupon discharged from their county, employr ~nt.

’ This ‘Court, following ‘Lerner and Beilan, supra, held

that they had been validly separated from their employ-

ment not for invoking their constitutional privilege. but for

insubordination under California law. : pakee a

Mr. Justive Clark, writing for the majority of this Court,

stated that if these men had simply refused without more

to answer the subcommittee’s questions, the county could

iS . 2

certainly have discharged them, and*the fact that they

chose. tq place their refusal on a Fifth Amendment ciaini

put the matter .a no different posture since their assertion _

of that claim was not used as a basis for drawing an in-

ference of guilt. (See, also, Christal v. Police Comm. of

San Francisco, 33 Cal. _ App. 2d 564, 9 P. 2d 416.)

So here, the petitioner, ‘‘an officer of the court, and like

the court itself, an instrument * * * of justice’’ (People

ex rel. Karlin v. Culkin, 248 N. Y. 465, 470-471) was under

an obligation to cooperate.with the Appellate Division in

its judicial inquiry bearing upon the professional conduet

of attorneys by adiswering the court’s relevant questions.

Failure to perform that obligation would frustrate the

court and render it impotent to perform its statutory-and

inherent duty to clean ap the Bar. [etitioner’s refitgal to

answer such questions constituted a breach of his duty,

warranting disciplinary action by the Appellate Division.

Petitioner seeks to escape the impact of Lerner, Beilan;

and Nelson by claiming that the principle of those cases is

restricted to.cases where a public employee refuses to an-

swer. relevant questions posed by his ewploy er. The

cardinal principle of those cases cannot SO ‘restricted.

_ For, the philosophy underlying Lerner, Beilan and N elson

applies with equal, if not greater, force to the case at bar.

‘The determining factor is that in each of the cases, includ-

ing the instant one, there is the positive duty to speak up

‘or get out. It matters not whether the relationship is one

of public employment so long as ‘‘the public interest’’ is

directly involved,

Quick to recognize ‘“‘the settled distinction inissins the

rights of private citizens and those of public employees’’

(Petitioner’s , Brief, p. 35), nevertheless: throughout his

brief, petitioner professes to perceive: no difference in the

dual capacity of the citizen-law' er, when called as a wit-

ness in a judjcial inquiry by the court.

Can it rationally be said that the duty of an attorney

vis-a-vis*the court which admitted him and is chargeable

‘with control. over his professional conduct, is any less .

sacred than the duty to the public employer of a subway

' eonductor (the Lerner case), a teacher (the Beilan case),

or a policeman (the Christal case)? Is not the duty of the

lawyer higher than any of these non-lawyers? And, is the

public interest any less vital in the case of the attorney?

- In the ultimate, the fundamental principle is the same,’

« namely, that he who refuses to answer when, in the public

interest, it is his duty speak, must bear. the conse-

quences, °

The Court of hoon,’ in ‘affirming the order disbarring

petitioner, summed this up in these words:

‘*In those cited eases -(i.e., Lerner, Beilan, Nelson

~ and Globe, and Christal) the duty to co-operate in in-

vestigations by answering relevant questions was

found in statutes or constitutions. The lgyer’s duty

is found elsewhere—in the common law and in the

Canons 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, Sec. 466)’’ (R. 86) °

As demonstrated above, the New York Court of Ap-

peals has ruled that the petitioner was not disciplined for

having invoked his New York State privilege against self-

incrimination (N. ‘Y. Const., Art. 1, Sec. 6); that-he was

disciplined for having refused to ‘answer relevant questions .

in the judicial inquiry, such conduct having constituted ‘

a breach of the condition’on which depended his privilege

of membership in the Bar (Matter of Rouss, 221 N. Y. 81);

and that the posture of the matter was not changed by

the fact that he chose to place his refusal to answér on a )

claim of the New York State — privilege against self- i

incrimination. | . {

proposition that invocation of the State constitutional

That aspect of the decision of the New York Court of

Appeals, which involves an interpretation of state law-and

.. a construction of the State Constitution only, is, we believe,

beyond review by this Court.

The Lawyer’s Role as a Fiduciary

Reference has already been made to the fact ‘that the

status of a-lawyer is akin to that of a trustee or fidu-

ciary, charged-with “‘the punctilio of an honor. the most

sensitive.’’ .

Where a court ousts a trustee who refuses to render .

his account under a plea of constitutional priv ilege, the -

trustee’s claim of deprivation of due process has no va-

lidity; he is ousted precisely because he refuses to per-

form his duty. To ward off his ousting, the trustee cannot

be heard to assert that the beneficiaries- must, in the first

ifstance, prove an affirmative case against him. The right

to formal accusation and proof, to confrontation and cross-

examination of witnesses, is beside the point where there

is the absolute positive duty of rendering a true account

in the first instance. An attorney-trustee is in no different

position. . ; é

The New York courts; while readily eran to the

privilege against self-incrimination is the right of every

citizen and must be sustained, refused to subscribe to the _

narrow view that the privilege itself is the sole measure

of a lawyer’s éntire duty or to the categorical coriclusion

that the exercise. of the right, in refusing to answer per-

tinent questions, can never under any circumstances bé a _

breach of a lawyer’s duty to the court.

Conflicting Views as to the Lawyer’s Status.

These important considerations point up the fact that

cepts of the role of the lawyer in American society.

~ the opposing views in this case reflect two conflicting con-_

28 ‘

In substance, our adversaries urge that if the view of .

the courts below should prevail,.then the lawyer is rele-

‘gated to second-class citizenship for the reason that he is.

-penalized for pleading the privilegeoaccorded ‘to every

citizen.

" Oni the contrary, our courts hold that a lawyer like every

other citizen may invoke his privilege, that the courts must

sustain such invocation, and that is the full extent and —

protection of thé constitutional guarantee. They take the

~ view, however, that a lawyer is. more than a citizen, that .

he is a citizen-plus; that he has undertaken far higher obli-

gations than an ordinary citizen; that as trustee of a price-

less res*—the true administration of justice as the firmest

foundation of the republic—he must, when called upon by’

the very court that admitted him and certified his trust-

worthiness, and which has plenary supervision over hjs

conduct every thoment of his professional life, render a

true accounting of his stewardship. Contrary to peti-

tioner’s, contention, firm insistence by the courts upon the

fulfillment of that obligation by the lawyer-trustee strikes’

no blow at a lawyer’s liberty or independence, for he

assumed that, obligation from the very‘day of his adifission

to the Bar. .

In striking contrast to the prophecies of, petitioner, af-

firmance of this order of disbarment: will have a most

salutary and beneficial impact upon the practice of the law

: ‘ Vv . ©

* This trust res of the lawyer was defined, in his own-inimitable

way, by Mr. Justice Holmes as,

“the body’ of our jurisprudence,—that vast cenotaph shaped

on the genius of our race, and by powers greater than the °

greatest individual, yet to which the least may make their

contribution and inscribe: it with their names. The glory

of lawyers,Tike that of men of science, is ‘more corporate than

individual. Our labor is an endless organic process. The

organism whose being is recorded and protected by the law

is the undying body of society.” (Holmes, Daniel S. Richardson

[1890], in Speeches [1913] 46, 47-48.)

<—_

i eee

‘in New York State. For if repeated affirmation by our

courts that lawyers truly are officers of the court and in- .

struments of justice is not mere rhetorical bombast and.

a species of semantic indulgence, then lawyers must act

and speak out as such and not seek to shirk their solemn

obligations as lawyers under the guise of being enly plain

ordinary citizens.

The standard of~ conduct. for the — cannot be

equated to the standard of conduct for the citizen without

diminution in stature and loss of prestige for the lawyer.

For, if the lawyer is eharged ‘with no special dyties, no

higher obligations, and no more solemn responsibilities

above those of the citizen who is not a Jawyer, then the

law has lost its: ideals .and the profession can claim

fiowhere near the lofty status it so proudly professes to

hold.

Answers to Oiker Arguments. oath

Earlier we recited the fact that petitioner declared in

refusing to answer the pertinent questions posed to him,

that he was supported in his position by the cases of Mat-

ler of Grae, 282 N. Y. 428 and Matter of Ellis, 282 N. Y.

435. The Court of Appeals. has ruled that petitioner has

misconstrued the holding -in those cases (R. 87). - That

ruling involves only the- interpretation to be placed upon

State court decisions and is, therefore, not open to review

in this Court.

The fact.of the matter is, however, that the difference

in the cases is substantial. In Grae and Ellis the question

was whether la lawyer who offered to answer at a “iudiciat

inquiry all pertinent questions could be compelled to waive

immunity in advance of questioning thereby yielding his

constitutional privilege even before interrogation began.

Such a waiver would have held the door open for the law-

vers’ prosecution for crime upon the basis of their own

testimony. The holding in each case was that a lawyer,

' f%

30. | —-

like every other citizen, is constitutionally privileged not

to answer damaging questions. —— -

—— as

OT anne

Bye _contrast, in ‘the p present case, petitioner when called

upon to testify actually pleaded his constitutional privilege

against self-incrimination and was sustained in that plea.

He was thus accorded all that the State and Federal Com

stitutions guarantee ard the door was closed to prosecutjng

him: for erime ppon the basis of-his own testimony.

To implement.his argument that the courts of New York

acted without solid reason in this case, petitioner at-

“tempts to draw.an analogy between an attorney’s plea of

his privilege and an attorney's reliance upon statutes and

government departmental regulations forbidding disclo-

sure of confidential communications, in refusing to testify

(Brief, pp. 22, 23). Again, petitioner fails to distinguish’

hetween a situation where the lawyer has freedom of choice

(the voluntary plea of. his privilege), and a case where

the lawyer has no freedom of choice, for prohibited Dee

closures"are binding upon lawyer and court alike,

Finally, petitioner argues that this Court should not

hesitate to hold that New York has acted arbitrarily. in

disciplining him, since. his refusal to testify has mot left -

the State of New York impotent to obtain the information

it claints to want from him. He goes on to suggest that |

the State of New York need only summon him before a

grand jury and grant him immunity from critinal prosecu-

tion to learn from him all that.it desires-to know.. In .

aid of that proposition petitioner cites a case whieh eom- .

pletely demolishes his thesis, namely, the case of In Re

Cioffi, 21 Mise. 2d 808, aff'd, 10 Az D: 2d 425, aff’d N.Y.L.J.,

July 12, 1960 p. 6, col. 3 (New York Court of Appeals).

In Cioffi, two attorneys were called before the grand

jury and: were asked whether they had ever been em-

ployed by a certain law firm in Kings County. Notwith- -

standing the fact that the grand jury had granted them

—— a

31 —

¥ - er. . . : ; = Ss

full inmeinity from criminal prosge®ion kad they answered

the question, they refused to answer, relying on their.”

‘constitutional privilege against self-inerimination. Instead

- of obtaining the information he sought, the District At-

- torney was blocked, as we were, by the attorneys’ refusal

to answer questions—a situation paranel to that < the

instant case. —

It is curious ‘(hat potitionse should rely on Cioffi for

_ another reason. Respondent is persenably familiar with

all the facts which are substantiated by: the official court

records. Originally, Cioffi and another attorney were called

before this judicial inquiry and questioned. They pleaded

their privilege, So did seyen (7) others in the same law

office—-five-(5) of whom were attofneys. For that reason

Mr. Justice Arkwright recommended referral of the cases

of all nine (9) to the Distriet Attorney for criminal prose-

cution or disciplinary proceedings. That is how Cioffi

and another came before the grand jury. They repeated

their silent performance there. |

; What_is more, in People ea rel. Karlin v. Culkin, 248

N. Y. 465, 470, Chief Judge Cardozo pointed out that

the grand jury inquires into crimes witha view to punish-

ment or correction through the sanctions of the criminal

“law; that there are many forms of professional misconduct

that do not amount to crime; that 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 the punishment of criminals; and

that the two fields of action are diverse and independent.

Accordingly, which course of several it shall pursue lye.

comes strictly a matter of State policy.

$3.

POINT Il

Petitioner has been accorded the cates measure of

procedural due process. -

There is no substance to see argument that he

Was denied procedural due process of Jaw. The fallacy of.

petitioner's argument is. that it is predicated upen charges

that -do not exist in the case and were never preferred

against him. Contrar¥ to petitioner’s assertion, he is not:

heing asked to defend himself against unseen informers*

and claimed adverse information. As pointed out earlier,

most of the questions were based ‘upon facts recited in pe-

titioner’s own Statements of Retainer or in official court .

records. Yet,.the single chirge against petitioner was his

refusal to answer brought about entirely by his own con-

- duct in resisting the judicial inquiry in the area of ques-

tioning that related solely to petitioner’s {professional con-

duct.

Due process mehns in essendé that every citizen, “no

matter what his calling, must be accorded fair play. That |

is the very foundation of our American jurispradence.. It

is difficult to conceive how this petitioner was denied any

rudiment: of due process. ‘We believe that on the issue of |

dne process the record in this case is impregnable.

The record ba@img the "best answer to the question. of due »

_ process, we invite the Court’s attention to the following »

highlights:

1. Petitioner was given ample notice of the hearing be--

fore the Judicial Inquiry on October 28, 1958." He was

fully apprised of. his rights as.a witress before the In-

' quiry as well as of the scope and basis of the Inquiry. - Al-

though given full opportunity to’ answer pertinent ques-

tions, he refused to-do so aston 22, et seq.).

* On page 7, supra, it is shown that specific arian! were named

when petitioner was: being examined.

e\,

, 33

e |

More than six months latér—on May 19, 1959, afier,

due notice, petitioner was recalled before the Judicial In-

quiry. Prior to his reappearance, both petitioner and his

counsel—on .May 12, 1959—were furnished with copies of

the order of the Appellate Division dated January 21, 1957. :

establishing the Judicial Inquiry (R. 30, et seq.).

-3.-At the very outset of the hearing, petitioner, was

_ again advised in detail as to the purpose, basis and, scope.

of the Inquiry’s investigation. Among other things, pe-

titioner. was advised that the Inquiry ‘is not an adversary

proceeding’ and that ‘*You are not a defendant or a re- .

‘spondent in any sense at this time;’’ that ‘‘You are not

now being charged with anything * °. * at this time, and

the Inquiry at this juncture.seeks merely to ascertain per-

tinent facts from you that are within. the scope of the In-

quiry and that bear on or relate to your professional con- ~

- duct?’ (R. 32-33). :

4. Petitioner was also permitted to seek advice of his |

counsel at any stage of the Inquiry and was also invited

to ask any questions or make any statement before pro-

ceeding with the questioning ‘(R. 33, et ‘seq.).

5. Before the hearing was concluded, petitioner . was

fully advised of his duty to answer; of the ‘‘possible

serious consequences that may flow from your refusal to

answer’’, and that such failure to answer ‘‘may well give

rise to disciplinary action’’ (R. 7-58).

6. There followed the yesieeantn of the disciplinary

charge, petitioner’s answer thereto, submission of briefs

and oral argument before the Appellate Division, emcee

ing in the order of disbarment. : :

_ In the light of the foregeing, we deem further comment -

unnecessary. Petitioner Was accorded every attribute of

due process

Conclusion ’

The prinéiple for-which we are ‘here contending has an’

importance that far transcends this particular case. As

‘the Appellate Division observed (R. 65) :

“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-

“> * [petitioner], but of inany other lawyers who

similarly have asserted their constitutional privilege

against self-incrimination as a basis for refusing to

divulge pertinent information with respect to” their

‘practices in relation to negligence cases. ‘ The: resolu-

tion-of this question will’ also determine in largé -

“measure whether this court’s supervisory and regula-

tory power over lawyers, and whether this court’s

plenary power to curb all evil and unethical practices.

in the profession of the law, are to be suppressed and

subverted, and whether this court is to be rendered

impotent in the performance of its inherent and statu-

tory duties relating. to attornets and’ té the adminis-

tration of justice.”’ ° |

Mindful of the gravity of the wesetine? that. is- bestia

‘for determination by this Court, we affirm that we do not’

seek to trespass ppon or invade the constitutional right.

against self-incrimination granted to every citizen, whether

or not he be a lawyer. (The record here fully bears ou

the care and the caution with which we approached the \,

presentation of this important case). The Bar should be

ever zealous to protect that right against any encroach-

‘ment. ‘However, wheré the assertion of that constitutional

right by one who is a lawyer and officer of the court is in-

consistent and incompatible with his duty of candor to the

court, the lawyer must make a choice. Tf he deliberately

chooses, as is his unquestioned right as a citizen, to assert

. *-

. a P

x { ‘

’ . .

’

‘his constitutional privilege and thereby remain silent when

it is his professional duty to speak out as a lawyer, then

he must bear the consequences. For conduct unbecoming

an ‘officer of the court, by breach of his special duty, as a

lawyer, he may no longer remain as a trustee in the ad-

ministration of justice by the Bench and the Bar.

-We respectfully submit, therefore, that this Court, as

- the nation’s supreme. guardian of the true administration

of: justice, should in all respect& lend its sanction to *this

ruling of the courts of New York.

The order: of disbarment should be affirmed.

Dated: ' September 15, 1960.-

Brooklyn, N. Y.

; 2 : \ .

Denis M. Hvurvey,

Attorney and Counsel for Respondent,

Office and Post Office Address,

‘ : -. - ~ Borough Hall,’

\ Brooklyn 1, New York.

Micwatn A. CasTAcptl,

MicHaEL Caputo

James F, Nrenorr, :

: Of counsel.

Wane dt APPENDIX” :

To the Clerk of the Appellate Dibdision, Second | udicial Pepartment

Rules regulating the conduct of attorneys and counsellors at law in the Second Judicial Department. *

“4, Date of agreement as to retainer... September ith, 1955 4

2. Terms of compensation... Bato. = 50% of any amount. recovered for damages by

suits settlement. or otherwhees oo cccicenme |

3. Name and home address of stent... PATRICK } MC | 2CORMACK, aod pesestin samme. |

seneeseneneneen BRONK...38 5... Mow. York... ieee \ of ne

4. Name and office address of attorney..... ALBERT “MARTIN GOREN, ESQ.s.16 Court Street,

Brooklyn... New..York

5. Date of occurrence of injury....... AUZUSt 19th, 1955. =

238th Street & Willow Avenue, bron, Wes York

6. Place of occurrence Of imjury.......2--2---..c-cssccnessereesneeneeees

pt . w

7. Title and description of the condemnation or change of grade proceeding ~

8. Date proceeding was COMMENCEM ec cssccvvvevseveveerveeens oon , stigueeesitanl

9. Number or other designation of the parcels affected...................-..-..0sseeceseeneenen

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.