Cases by Issue - Disbarment

Frazier v. Heebe - Oral Argument

Fri, 09 Jan 2009 14:48:28 +0000

Case:

Frazier v. Heebe

Media File:

86-475_19870429-argument.mp3

Related Transcript:

1986_86_475_argument.xml

Transcript:

Argument of Cornish F. Hitchcock

Chief Justice Rehnquist: We will hear arguments first this morning in No. 86-475, David C. Frazier v. Frederick J.R. Heebe, et al.--

Mr. Hitchcock, you may proceed whenever you're ready.

k--

Mr. Hitchcock: Thank you, Mr. Chief Justice, and may it please the Court:

This case presents important questions about the practice of law and the administration of justice in our Federal district courts.

At issue is a rule of the United States District Court for the Eastern District of Louisiana which requires members of that court's bar to live or have an office in the State of Louisiana.

In order to focus on the precise nature of the dispute, it's useful to identify what this rule requires.

Under the rule, members of the Eastern District bar must be located in the Eastern District, the Middle District or the Western District of Louisiana.

And in order to see how the rule operates vis-a-vis the petitioner, it may be useful to consult the map that we prepared in our opening brief as an appendix at page 6A.

Mr. Frazier's application was denied because he lives and practices in Pascagoula, Mississippi, which is approximately 110 miles from New Orleans.

By contrast, a lawyer located in Lake Charles, Louisiana, which is 200 miles from New Orleans, may be admitted to the Eastern District bar, and a lawyer located in Shreveport, Louisiana, 300 miles from New Orleans, may also be admitted to the Eastern District bar.

Indeed, lawyers from Lake Charles or Shreveport may serve as local counsel for lawyers such as Mr. Frazier in practicing in New Orleans, even though they're twice the distance from the courthouse.

In our brief, we have advanced several reasons why we believe this rule is invalid, but it boils down to essentially one complaint.

As the Court of Appeals recognized, this rule is both overinclusive as well as underinclusive.

And however it may be analyzed, we submit that it does not advance the goals of lawyer competence and availability for hearings that are attributed to it.

In our view, this Court's decision in Supreme Court of New Hampshire v. Piper provides the proper analytical framework for deciding the case.

And in mentioning Piper, I want to focus exactly on what we are arguing and are not arguing.

We recognize that Piper was decided under the privileges and immunities clause of Article IV, which is a direct limitation on state action and not on federal action; and we are not making a claim for relief under Article IV.

What we are saying is that this rule is a violation of the due process clause of the Fifth Amendment.

And in urging the Court to so hold, we are asking the Court to employ the analysis that was used in Piper in the context of analyzing this rule, just as the Court has incorporated equal protection analysis as a component of Fifth Amendment due process.

There are several reasons why we believe such analysis is appropriate here.

The rule in the Eastern District of Louisiana, with its exclusion of lawyers from out of the state--

Unknown Speaker: Excuse me, Mr. Hitchcock, before you go any further, that's a little difficult to do, because the privileges and immunities analysis prevents discrimination between citizens from different states, rights, on the basis of statehood.

But the Federal Government does that all the time, and the Constitution specifically says when it is that the government can't discriminate between the states, in certain types of taxation for example.

But the government very often provides particular benefits or takes particular action which just affects one state and not others.

So how can you possibly apply the state discrimination concept of the privileges and immunities clause to the due process clause?

Mr. Hitchcock: --The distinction in this case, as opposed to traditional cases where Congress passes a law, or national body engages in linedrawing of that nature, is, we have here a rule that was adopted by a local unit of the Federal Government that is exercising delegated authority, not--

Unknown Speaker: Why would you treat that differently from something enacted by Congress?

I mean, supposing the regional director of the EPA in San Francisco adopts a particular rule.

Now, it may have problems with parochialism, but nonetheless, we treat is an exercise of delegated authority from the United States.

Mr. Hitchcock: --It is an exercise of delegated authority.

But when the line is drawn, for example, if the EPA regional officer said that only people in California could practice before us or something of that nature, when the linedrawing by a local entity is on the basis of state lines, there are problems that have been raised... that are raised by that of the sort that are implicated by the privileges and immunities clause.

And to that extent... it's one thing if national body had adopted restrictions of this nature, saying... making that kind of decision and that kind of linedrawing.

But it's another thing for a local unit of government, in... local unit of the Federal Government, in consultation with local lawyers in this case, to try to be exercising that kind of discretion.

Unknown Speaker: Well, do you agree that if Conress had adopted this, you would have no claim?

Mr. Hitchcock: If Congress had passed this rule, we would not be arguing that it should be analyzed under privileges and immunities analysis.

There would be equal protection arguments that would be made, but the problem here that we think should trigger the type of privileges and immunities analysis is the fact that it's a local unit of the government, using delegated authority, and that it has an exclusionary effect that the court has recognized raised problems requiring heightened consideration if it were enacted in a state court system.

Unknown Speaker: I don't know what you mean by a local unit of government.

I mean, that has some meaning applied to a state where you have a state constitution th8at gives municipalities certain powers, whether the... whether the county or whether the state government desires it, willy-nilly.

But... but in the Federal context, I don't know of any Federal local units.

I know of certain representatives of the Federal Government that exist on a local level, but they're all governed entirely by the will of the entire Federal Government.

That have no local autonomy, none of these units, as far as I know, including this Court.

Mr. Hitchcock: Well, in this case, when I refer to the local unit, I'm referring to the United States district court, which has rulemaking authority.

But unlike delegated authority in the context of agencies, there are possibilities of dealing with any such rules through the agency process.

In this case, the court has some degree... the local district court has autonomy in this respect.

It shares its rulemaking authority with this Court, but it tends to operate on parallel tracks.

Unknown Speaker: But you're arguing at the same time that this Court... you're urging as one of your points in your brief that we should exercise our supervisory authority.

Doesn't this necessarily mean that this is not a local unit?

Mr. Hitchcock: Well, the rule is autonomous unless, of course, it comes before this Court.

The rule, or the exclusion of nonresidence is final unless of course it comes before a higher body such as this Court which would also have the authority to regulate.

But the point is, that when rules of this nature are adopted at a regional level or a local level, I mean the exclusion is against residents of other states.

The Court has said, admittedly in the context of state discrimination, discrimination by state entities of government, that there are special problems.

The Court has also said in the equal protection area... and we've cited several of the tax cases from recent terms of the Court... that there are similar problems when the court... when state governments pass legislation also that discriminate or have the effect of charging higher fees or imposing burdens on out-of-staters as well, under equal protection analysis, which would apply in the context of Federal action as well.

But I think there are reasons, even if the Court should not proceed under the privileges and immunities clause analysis, for using a heightened form of scrutiny here.

There is no reason why it is that Federal district courts should be able to adopt exclusionary rules of this sort when the Court said in Piper that they cannot be adopted in the context of a state court system; particularly when the reasons that are given for this type of exclusion are the same that the Court considered and rejected in the Piper case.

The Court's decision in Hurd v. Hodge, which we cited, suggested that it... they said in that case, bad public policy, it wasn't constitutionally grounded, for Federal courts to be able to, in that case, enforce certain contracts that state courts couldn't; and it's bad public policy here to allow Federal district courts to adopt rules that could not be adopted in the state court system.

State court judges, no less than Federal judges, are concerned with the competence of the lawyers who appear before them.

They're concerned with the availability of having lawyers who can appear before them in cases.

And there is no reason for saying that there are special problems in the Federal court system that are cured by having this type of restriction on lawyers.

Unknown Speaker: Are you sure that it would be unlawful for a state to adopt the kind of rule the Federal court has here?

This is not, as in Piper, a restriction against residents of other... or against citizens of other states practicing within the state; it's simply a requirement that there be an office within the state.

Now are you sure that a state couldn't adopt that rule?

Mr. Hitchcock: I believe so.

I believe that the Court's decision in Piper and the reasoning in Piper is broad enough to include that.

Justice White's concurring opinion in that case read the Court as reaching that far, because the same problems that you have with exclusions based on residence appear also with exclusions... or with an in-state office requirement.

The in-state office requirement acts as a surrogate for a residence requirement.

What it does is, it requires lawyers from out of the state who practice out of the state to open an additional office in Louisiana, which is not a burden imposed upon local lawyers.

I mean, for Louisiana lawyers, an in-state office requirement is largely not much of a restriction and not much of a burden at all.

The chances are, they probably have it.

But for the court to require that out of state lawyers must have that office in addition, it places burdens on citizens of other states, which as a practical matter, are not imposed on local courts.

That was the holding of the New York Court of Appeals in the Gordon case which we cited, where the same option was available for people applying to the state court bar.

You could either take the New York State bar exam, you had to be either a resident of the State of New York to be admitted to the bar, or you had to practice in the state before you were admitted.

And the court reasoned that the same type of problems that are posed by a residence requirement are posed by the requirement that you must have an office in the state, when that's not imposed... or it's not as burdensome as it is on--

Unknown Speaker: What do you suggest we substitute for it?

If the state wants to preserve the kind of interest that it says is protected by the office requirement.

Mr. Hitchcock: --You mean the district court?

Unknown Speaker: Yes, 200-mile rule?

300-mile rule?

What possible rule could there be?

Mr. Hitchcock: Let me break that down into two parts, Justice Scalia.

I think Piper reasoned that one's location or one's distance from the court is not a reason for disqualifying someone for being admitted to the bar.

I think the Court answered that question in Piper when it said that there maybe some times, as a practical matter, when a lawyer cannot appear, when the lawyer is, as the Court put it, at a great distance from the court.

In those cases, local counsel may be required.

We submit that a rule which did have that kind of circular or circumferential approach, would be more closely based on the court's goal.

If it were 100 miles, or 150 miles, or 200 miles, that's closer in terms of the goal attributed to it, which is assuring that lawyers are available.

The vice with this particular rule, as we see it, is that it says, lawyers 300 miles west of New Orleans may be admitted to the bar and may practice without local counsel, but not lawyers who are only 100 miles to the east.

We submit that it cannot be said that lawyers from 300 miles away are more likely to come over to New Orleans, but not lawyers that are only 100 miles to the east.

And however the line may be drawn, 150 miles, 200 miles, it's probably likely to be more closely tailored to the goal than the current rule, which focuses on state lines, and excludes people who may be perfectly capable of practicing law.

Unknown Speaker: Mr. Hitchcock, do you think this rule would be acceptable if it limited admission to lawyers who were admitted in... who had offices or resided in the Eastern District of Louisiana?

Mr. Hitchcock: No, Justice Stevens.

Part of the problem is that even it you were to limit it to the Eastern District of Louisiana, it's narrower, but in this case, it has some of the same problems.

The Court of Appeals recognized in footnote six of its opinion that there are some lawyers in the Eastern District of Louisiana who are further away from New Orleans than Mr. Frazier.

The geography of districts is such that in many instances you may have these anomalies.

Let me give you a local example.

Let us suppose, for example, that there were a rule of this sort in the Eastern District of Virginia, which covers approximately the eastern one-third of the state, and which has divisions that sit in Alexandria, in Richmond, and in Norfolk.

And in-district office rule would mean that lawyers from Norfolk, Virginia, could come up and practice in Alexandria without restriction, whereas lawyers in the District of Columbia, which is only ten miles away, as opposed to 180 miles away, could not.

Now, that's in a situation where you have multiple districts.

You have other states where there's only one district.

So an in-district rule, say in the district of Kansas, would let lawyers from Western Kansas come into Kansas City, Kansas, and practice in the district court there, but not lawyers across the street in Kansas City, Missouri.

Unknown Speaker: If you require perfect tailoring, you can find some flaw in any rule that lays down any principle like that.

But our equal protection clauses in this area have never required perfect tailoring.

Mr. Hitchcock: What we're saying is, whatever kind of tailoring or rule may be adopted, the current rule does not satisfy.

300 miles in one direction, you're in; 100 miles in the other direction, you're not in, is not even close, we submit, even whatever anomalies may occur around the edges with a more closely tailored rule.

Unknown Speaker: Doesn't the same rule have to apply to Texas, Alaska, and Rhode Island?

Mr. Hitchcock: Yes... let me answer the question.

Unknown Speaker: That's going to be a little tough?

Mr. Hitchcock: I think what Piper recognized... I mean, you're right, Justice Marshall, but, again, I would break it down into two parts.

I think Piper said that one cannot be excluded from a bar Just because one is in Texas or Alaska or another state.

Piper also said that if lawyers are at a great distance, and if the court should determine that people more than 300 miles away are a great distance, then one could require Texas lawyers or Alaska lawyers to retain local counsel.

We're not challenging that.

What we're saying is that the linedrawing that has occurred here has created problems that... and does not advance the Court's goals in ensuring that lawyers are able to come down to New Orleans.

Unknown Speaker: I've been to some states that require you to belong to the bar of the county that you filed a case in--

Mr. Hitchcock: I'm sorry?

Unknown Speaker: --or to hire a lawyer who is a member of the bar of that county.

Mr. Hitchcock: To practice in Federal court?

Unknown Speaker: No, sir, in state... I said state courts.

Aren't there states that have that rule?

Mr. Hitchcock: I believe there are states where you are admitted by a particular county.

I believe--

Unknown Speaker: And if you want to practice in the other country, you have to hire a local lawyer?

Mr. Hitchcock: --Well, I'm not sure to what extent that would survive the Court's decision in Piper.

I think that particular situation I think is addressed in the Court's decision in United Building Construction Trades Union v. the City of Camden, where certain jobs were reserved only for residents of Camden but not for people in other parts of New Jersey.

I think there might be problems in that nature, after the Camden decision and after the Piper decision, with that kind of county-based rule.

Unknown Speaker: xxx Louisiana?

Mr. Hitchcock: In Louisiana?

Unknown Speaker: Don't you have to belong to the parish to file a case in the parish?

Mr. Hitchcock: I'm not aware of it.

The rule here required membership in the state bar.

I am not sure that there are restrictions in terms that if you are admitted... or if you are admitted in Orleans parish, that means you cannot practice over in Baton Rouge.

I don't know the current requirement, but in this case, I don't think it's critical, because the rule says, you must have an office or reside somewhere in the State of Louisiana.

It's not specific by parish; it's not specific by district.

And that has caused the problems that we have attributed... that we have cited.

Unknown Speaker: Mr. Hitchcock, there is some coincidence, is there not, between this rule of the district court, and the extent of the subpoena power of that court?

Mr. Hitchcock: No, actually, the subpoena power extends further.

Under 45(e) the subpoena power would extend, to appear at... for depositions or trial extends 100 miles into Mississippi.

It was an argument that was stated in respondent's brief.

And so it's not perfectly contiguous with the state boundaries.

But I would point out again, the subpoena power raises issues that are somewhat different.

I mean, in that situation people who are disadvantaged are in-state residents.

People from Shreveport who are subpoenaed to appear at trial in New Orleans have to travel further that someone from Mississippi.

Unknown Speaker: I understand.

But it's 100 miles or within the state?

Mr. Hitchcock: Or within the state, correct.

Unknown Speaker: Now, that's not a perfectly, equitable match, as you're asking us to adopt for this rule.

Mr. Hitchcock: It's a--

Unknown Speaker: Congress didn't think it necessary, you know, to draw concentric circles around each district court and say, the subpoena power is only within that area.

It does... it does produce some inequities.

But given that we have a state system, Congress says, the subpoena power runs anywhere within the state.

Mr. Hitchcock: --I would turn that around, because I think the point actually helps us here.

What Congress said by adopting a rule of that nature, is that we are designing a rule for the convenience of witnesses, and we will make a judgment that it is convenient for witnesses to come in from anywhere in the state; that if they're 300 miles they won't be inconvenienced; and well also extend that so that lawyers... or that witnesses from the other part of the state may be brought in, too.

Unknown Speaker: What the district court is saying, we're making a judgment that it's convenient, and therefore possible, for lawyers to come here for quick hearings from anywhere within the state, just as Congress says it's convenient for any witness.

I don't know why that doesn't parallel what Congress has done.

Mr. Hitchcock: Well, what it parallels is the fact, again, Congress did let in people from out of state.

This rule does not.

And therein lies a distinction.

Even if it's not perfectly symmetrical, there are people who are allowed in from Mississippi, or from other places, if that falls within the boundary.

The problem with this case is that it is drawn strictly on state lines, and even under the availability, the argument that says, let's have lawyers who are available, that still lets in people from 300 miles away.

It says, they're convenient enough, they can come down here; but not lawyers, people who are being brought in involuntarily, but not lawyers from Southern Mississippi who voluntarily want to practice.

We say, we are willing, We want to build a regular practice in the Eastern District of Louisiana with all the burdens and responsibilities that entails, and we're willing to submit to that.

But they are excluded.

And the reasons about having lawyers available just cannot apply, we submit, in that context.

Unknown Speaker: Well, would you settle for the same rule that applies to subpoenas?

That is, you have to have an office within Louisiana or within 100 miles of the court?

Mr. Hitchcock: Well, my client lives 110 miles away, so that poses certain problems here.

Unknown Speaker: You can't do that.

Mr. Hitchcock: But I think--

Unknown Speaker: 110 miles, would that make you happy?

Mr. Hitchcock: --I could argue that would be perfectly constitutional.

The problem is that, again, Rule 45 deals with different concerns, it deals with the convenience of witnesses who are coming in, not lawyers who are seeking to appear and build a regular practice, and who want to submit to whatever requirements, who insist that they are willing to come on over to New Orleans, to show up, and to do whatever is required.

It's, we submit, apples and oranges.

I want to deal with one of the other distinctions that was raised by the respondents, and that's the fact that this rule is a continuing requirement, rather than the rule in Piper which was just limited to, lawyers had to reside at the day that they were admitted.

The problem is that that was only one of the defects, we submit that occurred in that particular case.

And I don't, as I read the Court's opinion, making the rule in Piper more restrictive would not have addressed the questions there.

The problem remains, even with a continuing requirement, that it is as overinclusive as it is underinclusive.

It allows in lawyers from far away in New Orleans, even if they don't practice law as litigators.

Even if they engage in a real estate practice, and don't ever appear in Federal court.

While it excludes experienced litigators, such as the petitioner, who are also closer to the court.

So the continuing requirement does not save it.

We have argued the reasons why we believe that heightened scrutiny ought to be applied under the Court's decision in Piper.

But even if the Court should decide not to adopt the reasoning in Piper here, we submit that the case can still be resolved under the Court's traditional equal protection analysis that's an element of the due process clause of the Fifth Amendment.

Heightened scrutiny, we think, would be appropriate under the standards that are used for that analysis, the fundamental right or suspect class, or even the Intermediate level of scrutiny.

In Piper, the Court declared that the right to practice law, or the opportunity to pursue one's career, was fundamental for purposes of Article IV, and I think the reasoning would apply here as well.

But even if it didn't, the distinctions that are drawn about in-state residents are allowed to practice, but not out-of-state practices, if not suspect class, at least raise what the Court referred to as recurring constitutional difficulties, in cases such as Plyler and Cleburne Living Center.

There are a number of cases where out of state residents are being excluded, even though there may be many valid reasons for allowing in-state residents, and even though the exclusion may not rationally or in other ways advance the goals that are attributed to it.

Unknown Speaker: Mr. Hitchcock, do you think it would be all right If the Eastern District of Louisiana simply cut out the geography rule, but maintained its rule that every member of the bar there had to be admitted to the Louisiana bar?

Mr. Hitchcock: That is not an issue here.

Unknown Speaker: No, but I asked you what your opinion was about it.

Mr. Hitchcock: Well, the Tenth Circuit after Piper raised the question as to whether that might be valid or not.

I would say... under the privileges and immunities clause... I would say, however, that Louisiana might be one state, the only state or the best state, in which that kind of restriction could be upheld.

To answer the question, I would have to look at what the arguments were advanced in favor of requiring that sort of a requirement--

Unknown Speaker: Well, what about one of them being that, well, a lot of the cases are going to involve elements of Louisiana law, diversity cases and that sort of thing.

And we don't give a special bar exam.

We want some evidence that you know the Louisiana law.

Mr. Hitchcock: --It would depend on the evidence that was put in.

As a practical matter, in Federal district courts, something like 70 to 75 percent of cases are Federal cases--

Unknown Speaker: But can you say that for the Eastern District of Louisiana?

Mr. Hitchcock: --I'm not aware... I've seen the number generally in several... broken down by circuits.

I'm not aware specifically in Louisiana.

But I think that--

Unknown Speaker: Well, supposing that the general rule, general percentage were 75 percent, but in Louisiana it were only 40 percent.

Do you think the Eastern District can pass a rule that governs it, even though it might not work in other districts?

Mr. Hitchcock: --That would be a more substantial reason.

But I would note, Mr. Chief Justice, the petitioner in this case is already a member of the Louisiana State bar, so the issue Is not implicated here.

Unknown Speaker: xxx he can... he can try cases in the state court in New Orleans?

Mr. Hitchcock: Absolutely, Justice White.

And that is one of the problems here.

Mr. Frazier can try cases on his own in the state courts in New Orleans.

But if he files a case, and let's suppose the defendant tries to remove it to Federal district court, he can't represent his client any more on his own because he cannot be admitted to the Eastern District bar under this rule.

He has to find a local counsel, or affiliate with another lawyer--

Unknown Speaker: Mr. Hitchcock, doesn't, the court of appeals have a study underway about rules in this respect?

Mr. Hitchcock: --The Court of Appeals... the judicial council of the Fifth Circuit is reviewing the rules of the district courts for consistency.

Unknown Speaker: With respect... and as part of their focus, on these rules permitting... restricting practice?

Mr. Hitchcock: This may be one of them, yes.

Unknown Speaker: May be?

Do you know?

Mr. Hitchcock: I don't know for certain.

The Court of Appeals said at the end of its opinion that it was unwilling to get into the issue because the matter is under review.

We're not aware--

Unknown Speaker: Well, so it is, so this very matter must be under review?

Mr. Hitchcock: --It may be under review, perhaps counsel for respondents could answer it.

But I would note Rule 83 was amended... was adopted by the Court nearly two years ago, and the rule has not been changed yet, and we're not aware of when any change would be imminent, and we're not aware of whether the change in the rule would affect petitioner or allow him to be admitted to the court.

Unknown Speaker: Do you know how prevalent these kinds of restrictions are across the country?

Mr. Hitchcock: Yes, the Court of Appeals noted that this type of rule is present in about 24 Federal districts across the country.

Unknown Speaker: And in the others, what's the rule?

Mr. Hitchcock: In a number of others, this rule puts the two together, where one must have an office or residence in the state.

A number of the other districts, there are some such as Southern Mississippi which don't have these kinds of restrictions, interestingly enough.

But in other districts, what they may have is two rules.

Number one, one can be admitted to the bar if one meets the educational and practice requirements, without any restriction.

Unknown Speaker: Of the state?

Of the state?

Mr. Hitchcock: Of the state bar... a member of the state bar, or the bar of any other state.

But they then add a restriction that says if any lawyer who enters an appearance in the case must be affiliated with local counsel.

So in effect there are two rules, but it has the same practical effect as this particular rule.

And if the Court should agree with us, we would hope that they would focus on that as--

Unknown Speaker: Well, how many districts have a rule that if you're a member of the state bar, you may practice in the Federal district court, even if you're a nonresident?

Mr. Hitchcock: --I'm not aware of exactly how many allow--

Unknown Speaker: Are there some?

Mr. Hitchcock: --Who allow you to practice in the district court if you're a member of the state bar?

Unknown Speaker: Yes.

Mr. Hitchcock: Yes, the Southern District of Mississippi, for example.

Unknown Speaker: Is that all, do you know?

Mr. Hitchcock: I don't know.

I didn't, when I was surveying the rules I didn't focus on membership in state bar, and whether that was--

Unknown Speaker: Well, if all the district courts the country except the Southern District of Mississippi have either this rule that this court has here, or its equivalent, that's pretty telling about what local district courts think is good for their... a good rule for running their business.

Mr. Hitchcock: --With respect to the admission to the state bar?

I meant the Mr. Frazier is admitted to the Louisiana State bar.

Unknown Speaker: Well, I know.

But I take it that other courts that will either have this rule or impose a requirement that he associate with local counsel.

Mr. Hitchcock: Other... well, other courts--

Unknown Speaker: All but the Southern District of Mississippi?

Mr. Hitchcock: --I don't want to limit it to the Southern Mississippi.

I have to confess, because Mr. Frazier is a member of the state bar in Louisiana, I didn't focus on how that requirement is applied.

There are other districts, I believe in Texas as well, that require one to be either a member of the Texas bar or the bar of any other court.

I could submit a summary of those requirements it it would be helpful to the Court.

Unknown Speaker: Oh, that's all right.

Mr. Hitchcock: But the point is, whatever educational or bar admission requirements one may impose, this type of rule deals with other questions.

Whatever educational qualifications one may require or practice requirements that is not related to the question of whether one lives or practices in the state and therefore, one is competent practitioner or likely to be available.

Mr. Frazier has met whatever educational qualifications and practice and bar admission qualifications that--

Unknown Speaker: May I ask you Mr. Hitchcock, I know that your client now is not a resident or have an office in Louisiana.

When he was admitted to the Louisiana bar, was he required to be either a resident or have an office?

Mr. Hitchcock: --No, when he was admitted--

Unknown Speaker: The Louisiana State bar just doesn't have any requirement of this kind at all?

Mr. Hitchcock: --No, Louisiana did not have a residency requirement, and that was the case before Piper as well as after Piper.

Unknown Speaker: Is it integrated?

Mr. Hitchcock: I'm not certain.

If the Court has no further questions at this point, we'd like to reserve the balance of the time.

Argument of Curtis R. Boisfontaine

Chief Justice Rehnquist: Thank you, Mr. Hitchcock.

We will hear now from you, Mr. Boisfontaine.

Mr. Boisfontaine: Mr. Chief Justice, and may it please the Court:

May I quickly answer your question, Justice Marshall?

The Louisiana bar is an Integrated bar; has been for some 35 years, integrated in both meanings of the word.

You must belong to the bar association in order to practice.

You must belong... you must be admitted to practice to belong to the bar association.

And it has no color lines whatsoever.

Before going into detail specifically, there's one... there's one point that I think needs repeating if not clarification.

The Eastern District of Louisiana admits any licensed lawyer of the 50 states to practice before it.

The issue here is not whether or not a lawyer may practice in the Eastern District.

The issue is, under what method may he practice in the Eastern District?

Take the unlicensed... the lawyer that is not licensed in Louisiana.

Take the lawyer in Nome, Alaska.

He may come to the Eastern District, seek and obtain admission pro hac vice, and obtain local counsel to assist him.

Under one of the subparts of Rule 21, the... the necessity for local counsel may be waived, and the evidence in the record says that that is done from time to time upon showing of need.

Now the lawyer who is licensed--

Unknown Speaker: Expand upon showing of need.

What does that mean?

Mr. Boisfontaine: --The rule itself, sir, provides... Rule 21.6, I believe... that if it does a hardship to the client, or if substantial compliance with the rules is assured, the waiver of local counsel Is given.

And our evidence in the record, which is unrebutted, is to the effect that it is often waived.

The pro hac vice is one method of practicing in that court.

Two other methods exist.

If you're a Louisiana lawyer and you live in the state, you may practice under general admission.

Unknown Speaker: Even though you don't have a residency in the state?

Mr. Boisfontaine: Yes, sir.

Even if you... if you have an office in the state and you live in Mr. Frazier's city, you may still practice generally in that court.

If you live in New Orleans and have your office in Pascagoula, Mississippi, you may practice generally in that court.

So that there are options on general admission, and if you don't, fit the options, then you have liberally granted pro hac vice admission.

We have no evidence of record where a lawyer has applied and has been turned down admission to practice before this court.

Unknown Speaker: But may I ask this question?

As I understand the holding in Leis v. Flynet a local court does not have to allow pro hac vice admissions if it doesn't want to; it's totally up to the discretion of the local judges.

Supposing they change their rule on pro hac vice and just say, we decided we want to have the same requirement on pro hac vice.

You've got to be... either have an office or be a resident.

Would that change the constitutional or the supervisory power issues in anyway?

Mr. Boisfontaine: I think there are some district courts that allow just such a restriction.

Unknown Speaker: So you really... although you say it really isn't as severe as your opponent makes out, you don't really rely on the fact that there are these alternative methods?

Your legal position is--

Mr. Boisfontaine: I think our position is--

Unknown Speaker: --the judges could just flatly exclude this man it they wanted to?

Mr. Boisfontaine: --I believe Congress has told this Court that it can make necessary rules, and the evidence by the way of record, says these rules are necessary, to make sure that the speedy and efficient administration of justice in that court is carried out, in the eyes of those rulemakers from that court who have the obligation, both judicially and congressionally, to make such rules as are deemed appropriate and necessary.

Unknown Speaker: Mr. Boisfontaine?

Mr. Boisfontaine: Yes, sir.

Unknown Speaker: You say that leave to practice pro hac vice is liberally granted.

But would it be liberally granted to the same person who came back time and again?

Mr. Boisfontaine: Yes, sir.

That has been... that is a part of the record, specifically so because we assumed that the Fifth Circuit might be wondering that very fact.

There is no restriction on the repetitiveness of pro hac vice admission.

In fact, if a person practices there often enough, he will likely get waivers of the local counsel requirement upon simple request, once he demonstrates his own abilities to know the rule, to perform under the rules, to make himself present at all times needed.

Unknown Speaker: May I ask how, in a case... say this man wanted to file a complaint on behalf of a client.

What procedure does he follow to get permission to do so?

Mr. Boisfontaine: He files in writing, through the mail, a motion to become enrolled pro hac vice.

Unknown Speaker: But it doesn't have a number... not with reference to any particular case, he just says that--

Mr. Boisfontaine: Oh, you have to say for what purpose, yes.

Unknown Speaker: --But it's just a letter saying--

Mr. Boisfontaine: It's a motion form--

Unknown Speaker: --Because he can't file a complaint with his name on it until he first has the pro hac vice permission, I guess.

Mr. Boisfontaine: --I don't really know whether the cart and the horse, who comes first.

There is a procedure to handle it--

Unknown Speaker: Well, he also has... he also has to be associated with local counsel.

Mr. Boisfontaine: --But local counsel will often file the suit, and then file the motion asking permission far attorney X or Attorney Frazier--

Unknown Speaker: Well, isn't that how it's done all the time?

Mr. Boisfontaine: --That's often how it's done.

That's the way I've seen it done in the few cases we've got with local counsel.

Unknown Speaker: Does the evidence indicate that the problem with... it's harder to comply with the rules of the Federal court than it is of the state courts?

Because I guess he doesn't have to do this in the state courts, he just files his complaint.

Mr. Boisfontaine: No.

As a matter of fact, the Eastern District discovery rules are quite... are quite intense.

They require a lot of face-to-face confrontational meetings.

A lot of the pretrial activity is done personally and is prohibited by telephone or the mail.

Some of the early scheduling conferences under the rules require the trial attorneys, or one of them, to be present with a magistrate, to go through the whole system.

As you approach trial the routines and regimens of pretrial settlement require the attendance, under all circumstances, of the trial attorneys.

There is a need for the personal touch, if you please if you satisfy the Eastern District rules.

Unknown Speaker: But doesn't that... don't you suppose the lawyers know that in the area?

Mr. Boisfontaine: The lawyers in the area know it.

Unknown Speaker: If he is going to file a suit, he must presumably realize that he has that responsibility, assuming he's a professionally qualified person?

Mr. Boisfontaine: Well, again, I'm not trying to answer you in the abstract, because our record contains evidence from accepted experts on the judicial administration in the Eastern District, and that evidence says that attorneys from away give the court more trouble than those who are logically, normally and frequently practicing there.

Now, the minority opinion of the Fifth Circuit sort of scoffed at that evidence.

Unknown Speaker: Just like those from Shreveport?

Mr. Boisfontaine: Those from Shreveport that practice in the Eastern District usually come the night before and have dinner and are there the next morning.

Unknown Speaker: Well, I suppose the ones... people from Mississippi could do the same thing.

Mr. Boisfontaine: Mr. Frazler's local attorney did the same thing, I suppose.

He was admitted pro hac vice to try this very case for Mr. Frazier.

There's also this ominous comparison to Piper that we perceive in the applicant's brief.

Piper is very different from Frazier, if I may use those names to designate those cases.

First of all, we're talking about state law and Federal law.

And that alone is a big distinction between the Piper Article IV problems and the Frazier case.

In Piper we also have this option of not only living in the state but maintaining an office in the state; under either of which gives you automatic, general admission to the Eastern District of Louisiana.

And more importantly, the continuing requirement of that eligibility puts the real teeth in the rule in Frazier, and at the same time demonstrates the absurdity of the rule in Piper.

Mrs. Piper could have run over to New Hampshire, gotten an apartment or done whatever it was it would take to establish residency, gotten admitted to the court, and run right back 400 yards to her nice house and home.

And it would have made no difference under the Piper rule, because once certified, once admitted, that was it; you could go to Nome, Alaska.

In the rule under scrutiny here, the continuing need for office or residence is clearly proscribed.

And it you have neither, then you must fall back to the other means of practicing before the court, on the pro hac vice side.

The subpoena power of the state, of the court, is contiguous with the subpoena power granted in the state proceedings.

Unknown Speaker: You know, you're talking about the absurdity in the other case.

I take it there are cities in Mississippi that are closer that Pascagoula.

Isn't Biloxi closer for example?

Mr. Boisfontaine: Biloxi is closer, yes, sir.

Unknown Speaker: I mean, there are some right across the river, aren't there?

Mr. Boisfontaine: Gulfport is even closer.

Unknown Speaker: Gulfport was the one I was trying to think of.

Mr. Boisfontaine: Yes, sir, there are cities, there are cities in states that are shorter in distance than the location of Mr. Frazier's residence.

Unknown Speaker: But I don't know why you say it was so absurd in the Piper case.

I don't know why the lawyer in Gulfport would be any different than the lawyer in Piper.

Mr. Boisfontaine: Well, my comment about the absurdity had to do with the fact that Piper did not have continuing residency or continuing office maintenance as a requirement.

That was my comment about the absurdity in Piper, only that you could run over there, get admitted, and then for all time, not worry about it again; whereas the Frazier rule requires that you maintain either an officer or a residence.

Unknown Speaker: In a town like Texarkana, you'd have to have offices on both sides of the street?

Mr. Boisfontaine: That might solve a lot of problems.

But it's Arkansas and Texas, and they'd still have to come to Louisiana pro hac vice.

Unknown Speaker: No, I'm talking about if this was a Texas law, I like the Louisiana law, and you lived on one side of Main Street In Texarkana, you'd have to have an office of the other side of the same street?

Mr. Boisfontaine: If that same rule... yes, sir, Justice Marshall, that would certainly be true.

I submit you could live on one side and practice on the other, though, and solve those problems.

No rule is safe from better rule writing.

There is hardly anything that you can look at a second time and not find a better way of addressing, or a better way of expressing it, or perhaps a somewhat softer impact.

But we're not here trying to write a rule.

I think we are here trying to review and to see if this rule is constitutional.

Is this rule appropriate?

Now to look at that issue, as I see it you look first to the reason for the rule.

Is it reasonable?

Does it accomplish the purposes for which it's intended?

And we say to you that it does.

You then look and see if it is harshly discriminatory.

No one is going... everyone is not going to be treated exactly alike.

But some disparity in treatment Is permitted under the regimens and under rules.

And we look at this rule and we ask ourselves, is this rule appropriate for the purposes for which it is performed?

Does it unduly mistreat Mr. Frazier and other people similarly situated?

And under the evidence of record, and under the reasons expressed for the rule, we say to you that the rule is the only appropriate way to maintain control over the attorneys that are practicing in the Eastern District of Louisiana.

And the only way to do it in such a way as to minimally impose some disparity in how you practice there.

It must be remembered that Mr. Frazier can get general admission anytime he wants if he opens an office or if he lives in Louisiana.

The rule is there.

How it affects a person depends on the person's motives and on the person's conduct.

The rule is very objective.

It says, any Louisiana lawyer who either lives or practices in Louisiana is generally admitted.

That lets lawyers come to Louisiana, leave Louisiana, open offices, close offices.

It is their conduct that affects the ultimate effect of the rule on them.

We submit that the only way this could better be handled, perhaps, is not to have a rule at all.

And I don't believe that that would be the proper carrying out of the Congressional and Judicial mandates on the Eastern District court in the exercise of their rights and obligations.

Unknown Speaker: Mr. Boisfontaine, may I ask you as kind of a practical matter, what do they do?

Do a lot of them Just have sort of like a corporation trust company, they have some office where they can go in and have the receptionist take phone calls for them?

That will do it, I suppose, put the name on the door?

Mr. Boisfontaine: I suppose.

I think that maintaining an office would carry with It the obligation to maintain a lawful office, not just a sham--

Unknown Speaker: Well, but it wouldn't be a sham in the sense of--

Mr. Boisfontaine: --I know of no dropoffs.

Unknown Speaker: --say one of the larger firms knew about this problem and said, we'll be glad to put your name on the door and take your phone calls and be sure your mail is forwarded?

Mr. Boisfontaine: I suppose if our firm would have put Mr. Frazier of counsel, and give him telephone and address privileges, we would probably satisfy the rule.

But then we would-be holding ourselves out as vouching for Mr. Frazier, and our firm would in effect be surrounding Mr. Frazier with our reputation and with our obligations to that court.

Yes.

To answer you more directly, yes.

That would satisfy it.

Unknown Speaker: Well, I'm not sure your firm would... say he had a client in the shipping business or something.

And they said, well, you can use... we'll let our switchboard take your calls, and you can use this as an office for taking mail and so forth.

And his client Just... and he just listed that office and phone number.

Would that satisfy the rule?

I don't know it wouldn't.

Mr. Boisfontaine: If the court knew it, I don't believe it would.

Unknown Speaker: Oh, it wouldn't?

Mr. Boisfontaine: I don't believe it would.

Unknown Speaker: There is a definition of the kind of office he has to maintain?

Mr. Boisfontaine: I would not... the rule of course does not say, whether it be a fancy office or a small office or--

Unknown Speaker: Well, isn't the only purpose of the rule to be sure he gets notice and gets his mail?

Mr. Boisfontaine: --The purpose of the rule is to make sure he gets notice, to make sure he gets his mall.

Unknown Speaker: Well, why wouldn't it satisfy to have a client say you can--

Mr. Boisfontaine: I'm not saying that it wouldn't.

I'm saying that I suspect that the court would require more than a drop, if you please.

I don't know that it would.

Unknown Speaker: --Why?

What purpose does it serve, other than the drop purpose?

Mr. Boisfontaine: Well, I think basically the purpose of having the rule, and having the office or the residence is, as you point out, to make sure that notices are timely received.

And I suppose a drop would satisfy that.

Unknown Speaker: I wonder if a mailbox might do it.

If you kept a mailbox at general delivery.

Mr. Boisfontaine: I don't think a mailbox is an office.

Unknown Speaker: I see.

But I would think as long as he had a client who was willing to put his name on the door, and a phone number that he could list in your lawyers' directory, I don't know why that wouldn't comply.

Are you sure, Mr. Boisfontaine, the only purpose is to give him... to make sure that notice is received?

Certified mail would do that.

Mr. Boisfontaine: It's not just a question of assuring the court that mail is received.

Unknown Speaker: I didn't think so.

I thought the purpose was to make--

Mr. Boisfontaine: I think I stepped in that answer.

There's more to it than that, sir.

Unknown Speaker: --What is it?

Mr. Boisfontaine: It's to assure the court that the attorneys are available.

It's not just a question of getting there.

It's a question of--

Unknown Speaker: Well, suppose you have one of these multistate law firms, you have them I'm sure in New Orleans as we do in other parts of the country, and you've got a New York partner up there, and he's going to try the case and so forth.

Does he have an office there?

He's never in New Orleans except for the purpose of this one case.

Does he have to get pro hac vice admission?

He's a member of the bar.

This fellow moves to New York.

Mr. Boisfontaine: --I don't believe we have multi-district firm.

And I don't know the answer to your question.

I think--

Unknown Speaker: But you're saying... you're suggesting that the rule requires a certain number of days a week in the office or something like that?

Mr. Boisfontaine: --No, sir, the rule doesn't deal with firms, it deals with lawyers.

It deals with a person.

Now if this person were living and practicing in New York City, he obviously wouldn't qualify for general admission--

Unknown Speaker: Even if he became a partner of your firm?

Mr. Boisfontaine: --Even if he were a partner of the firm, he is still Mr. Smith, and Mr. Smith lives and practices in New York City.

As I would interpret it.

Unknown Speaker: Let's assume a lawyer leases an office and has a secretary there, but he lives in Mississippi.

And he may be able to get his mail, but he's still away, and he's not instantly available.

You can... he's bound to get notice.

His office will make sure that he gets notice.

But he's still a long distance away.

Mr. Boisfontaine: Justice White, I suppose it's in the interest of trying to be as liberal as possible that this alternative option is granted.

If the Court really wanted to be restrictive, and wanted to have Its law--

Unknown Speaker: Well, what difference... what difference where he's got his office make if all he has in his office is somebody to notify him that he's got some mail or a phone call?

Mr. Boisfontaine: --In my view, people do not frivolously undertake overhead of offices.

If a person is going to maintain an office in the State of Louisiana, there is going to have to be a reason for it superior to an ability to generally practice in the Eastern District of Louisiana.

Because that can be done with no overhead.

That can be clone by simple motion for a pro hac vice admission.

So the fact that the rule allows the general practice, once you have an office, presupposes good common sense on the part of the attorney.

Unknown Speaker: It demonstrates a serious commitment to practice in that district, I take it, doesn't it?

Mr. Boisfontaine: I would think that's true.

And I think also the fact that you live there is more--

Unknown Speaker: A serious commitment to continuing practice In that district, as opposed to someone who just practices now and then and comes in pro hac vice?

Mr. Boisfontaine: --I wish I had said it that way, Sir.

Unknown Speaker: Counsel, what do you... I notice if you ever go up to Wilmington, Delaware, and lawyers... you see all these plaques on there, and that's all it is.

Mr. Boisfontaine: Corporate headquarters, I suppose.

Unknown Speaker: Would that be sufficient?

Mr. Boisfontaine: Again, we're talking about whether it's a legitimate office of that particular person for that--

Unknown Speaker: 0 xxx.

Mr. Boisfontaine: --If it's an office yes, sir, I suppose it would have to be if it's a legitimate office, if it demonstrates his intent to practice in the state.

This could be a lot tougher, you know.

This could say, if you're not... if you're not in Olney's Parish, you're not going to be generally admitted to this court.

And a lot of districts have very restrictive admission rules.

I think the Eastern District has compromised the liberality with the necessity of the administration of Justice in expanding it to the entire state or so say we.

Now, let me touch one more time on this 100-mile range for Mr. Frazier, and in his case, I suppose we would make it a 111-mile range.

That argument, to me, is an argument that would be made to the rulemaking authority at the time they're making a rule.

It is an attempt to write the rule differently, to write the rule perhaps more restrictively in some respects, and less restrictively in others.

Unknown Speaker: xxx if there is one--

Mr. Boisfontaine: There is a Judicial conference in effect in the Fifth Circuit.

I don't know the precisity of the review of the admission rules.

know that they are awaiting hearing from this Court, since they are very much aware of this writ.

But the rule writing and the rule review is underway.

I was not at the Fifth Circuit Judicial conference two weeks ago, but I understand that there was a great deal of discussion about admission rules and many other rules of the various district courts within the Fifth Circuit.

Unknown Speaker: --Was the Fifth Circuit--

Mr. Boisfontaine: I can't give you a time or date by which any work would be completed.

Unknown Speaker: --Were they thinking about requiring particular kind of a rule through the circuit?

Mr. Boisfontaine: I understand they're considering, as I understand it, they're considering some uniformity, not requiring... not requiring total uniformity--

Unknown Speaker: Right.

Mr. Boisfontaine: --but they're looking at the extremes of rules treating the same subject, with a view toward trying to bring the extremes more toward a center... a center line.

I think that's the extent of the uniformity that they seek to achieve.

If there are other questions?

Otherwise, we submit.

Rebuttal of Cornish F. Hitchcock

Chief Justice Rehnquist: Thank you, Mr. Boisfontaine.

Mr. Hitchcock, you have one minute remaining.

Mr. Hitchcock: Thank you, Mr. Chief Justice.

I wanted to follow up on the question of the office requirement, Justice Stevens' inquiry.

It was addressed in the record.

At page 151, Mrs. White, the clerk, said that a mailbox is not sufficient.

At page 255, Judge Wicker testified that the office requirement requires only that there be someone to answer the telephone and communicate with the lawyer.

And I would add again that that could be in New Orleans, or it could be in Lake Charles, or it could be in Shreveport, or it could be anywhere else.

Mr. Frazier can affiliate with an office... somebody who has an office In Lake Charles, and he would satisfy the office requirement.

But there's no reason to believe--

Unknown Speaker: Do you understand that to mean he would satisfy it if one of his client's were willing to put his name on the door and forward mail and phone calls to him?

Mr. Hitchcock: --The statement was, and I will quote from the record, quote: This means where there is an address with a telephone number to me.

Question: Somebody such as a secretary?

Answer: Someone who would be able to communicate with that Individual If we attempted to reach them.

That is the only answer.

Unknown Speaker: So your answer is, yes, that would be adequate?

Mr. Hitchcock: Yes.

That is permitted.

Unknown Speaker: So maybe he needs to get a New Orleans client.

Mr. Hitchcock: Excuse me?

Unknown Speaker: Maybe he needs to get a New Orleans client?

You think it says that?

I don't think it says that.

Mr. Hitchcock: It says someone... you know, secretary with the office.

And again, it doesn't say where, it doesn't say somebody who is committed to regularly practicing in the Eastern District.

It could be somebody--

Unknown Speaker: That may well mean that you just can't hire an office and have a vacant office with nobody there to answer the phone.

That's how I would have interpreted that.

Mr. Hitchcock: --But it doesn't imply that there Is someone there who could go over to the courthouse for emergency hearings or something of that nature.

Chief Justice Rehnquist: Thank you, Mr. Hitchcock.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

In Re Ruffalo - Oral Argument

Thu, 23 Aug 2012 18:26:19 +0000

Case:

In Re Ruffalo

Media File:

73_19680304-argument.mp3

Related Transcript:

73_19680304-argument

Transcript:

Argument of Craig Spangenberg

Chief Justice Earl Warren: Number 73, In the Matter of John Ruffalo Jr., petitioner.

Mr. Spangenberg?

Mr. Craig Spangenberg: May it please this Honorable Court.

This case comes before you on a writ of certiorari to the Court of Appeals for the Sixth Circuit and you will review an order of disbarring petitioner, John Ruffalo Jr. in that court.

That order was in turn based upon action of the Supreme Court of Ohio, that action being not here for review.

Ohio had suspended Ruffalo on two charges.

The Court of Appeals found that one charge justified disbarment from its roles.

The District Court had earlier reviewed, the Ohio disbarment had found that neither charge justified the striking of Ruffalo from the rules, but after the Court of Appeals opinion, the District Court entered a second order saying that although still convinced that he was right, he would bow to the judgment of his superior court.

Justice Potter Stewart: Mr. Spangenberg, was this a disbarment in the Ohio Courts?

It was --

Mr. Craig Spangenberg: No, suspension, Mr. Justice.

Justice Potter Stewart: And there is suspension in Ohio, isn't there or not?

Mr. Craig Spangenberg: In words, no lawyer who has ever been suspended in Ohio has ever been reinstated as you may know.

But technically, after two years, he can apply for readmission.

He can take the bar again if he is given the right to, by the Supreme Court.

It is not total disbarment for life.

There is a right to reapply.

Justice Potter Stewart: After two years?

Mr. Craig Spangenberg: After two years.

Justice Potter Stewart: This was a suspension --

Mr. Craig Spangenberg: Yes.

Justice Potter Stewart: -- in Ohio, but a disbarment from the Court of Appeals?

Mr. Craig Spangenberg: That's right.

Justice Potter Stewart: At the District Court also?

Mr. Craig Spangenberg: That's right, sir.

Chief Justice Earl Warren: Did I understand that you say that never in the history of Ohio have they reinstated a man who was suspended for two years.

Mr. Craig Spangenberg: That is true, Your Honor.

Chief Justice Earl Warren: Is that so?

Mr. Craig Spangenberg: There is one pending now where there are some speculation he may be, and so it will be unique.

But the case involves chiefly one Michael Orlando.

He was a nightshift inspector, a car inspector for the B.& O. Railroad.

He bled the air from the break systems of incoming cars.

I make this point as to his non-trust, non-confidential, non-secret position because he has been described in other opinions as an espionage agent, as secret agent planted in the shops.

I do want to make it clear that in the sense of espionage, he had no access to anything worth extracting from company files.

He was an investigator.

He had general knowledge of railroad and useful to Ruffalo and the ability to talk to railroad men in railroader's language which his useful to any lawyer who has a railroad case.

In the Ohio practice, charges are tried first before a panel of three lawyers.

Their record and findings are reviewed by a board of 17.

Their decision is reviewed in turn by the Supreme Court of Ohio which says it has final authority to say what the facts are and what should be done.

Justice Potter Stewart: Does the Ohio Supreme Court appoint those 17 people?

Mr. Craig Spangenberg: They appoint the Board of Commissioners, that's the 17.

Justice Potter Stewart: The 17?

Mr. Craig Spangenberg: The panel comes from the Board.

Justice Potter Stewart: From those 17, for what?

Four-year terms, is it?

Mr. Craig Spangenberg: I don't know the length of the term.

It's a long term.

They are not appointed for the case.

They are a standing board.

The original charges had been developed against Ruffalo by detectives of the American Association of Railroads presented to the Local Bar Association, which invoked the hearings.

Before the panel of three conducting the primary hearing, there were two charges that had to do with Ruffalo.

One, that Ruffalo through -- through two charges that had to do with Orlando, one, that Ruffalo, through Orlando, had solicited the claim of a Sam Cotellesse against the P&LE Railroad, that was charge four.

Charge five, that Ruffalo had attempted to solicit through Orlando the claim of one Quinn against the B.& O.

Both charges were dismissed by the panel at the first level for one of any evidence.

During the hearing on those charges which were unsupported and later to be dismissed, Ruffalo, the respondent, was himself called for cross-examination under Ohio practice and testified before the panel, defending himself on the charge of solicitation through Orlando.

He said that Orlando was only an investigator who gave Ruffalo expert advice on general railroading practices, who located witnesses, sometimes interviewed them, sometimes -- and often drove witnesses to courts so they would be available to testify.

Orlando investigated all of Ruffalo's railroad cases, some of them were against the B & O.

No evidence was ever developed to any greater extent as to just what Orlando did.

For example, there is no evidence that he ever investigated a case in the yard in which he worked, certainly, no evidence that he ever investigated at night when he should have been on duty on his own railroad.

Ruffalo said he paid him piece work, $25.00 a day and expenses and the mathematic shows that he averages 10 days a month or thereabout which is consistent with Orlando's own testimony.

Orlando was called, he testified to the same extent.

After these --

Justice John M. Harlan: How these two men came together?

How did Orlando come to be employed?

Mr. Craig Spangenberg: No, the record doesn't show that except that it shows that Orlando was a former client of Ruffalo's and had worked for Ruffalo as an investigator for many years, not only in railroad cases.

He also did some work in trucking cases.

Justice Potter Stewart: Didn't I see in the records, somewhere a testimony by Mr. Ruffalo, saying that one of the things he learned early including from his father, who is in the practice before him, that “If you're going to be a successful plaintiff's lawyer in railroad cases, you have to get yourself a railroad man.”

Mr. Craig Spangenberg: Yes, he had said that generally (Voice Overlap).

If there's intellectual curiosity about Orlando, he had worked for John's father before him, John Ruffalo, Sr. was a well-known railroad lawyer.

Justice Potter Stewart: I think that's in the record, Mr. Spangenberg, if I'm not mistaken.

Mr. Craig Spangenberg: Yes, If i not mistaken.

And then after Ruffalo, Sr.died, Orlando continued to work for John, Jr. and had work for him since 1953.

That is in the record.

That was after this testimony came in that the panel added the charge, in these words that Ruffalo did conspire with Orlando and paid Orlando moneys for preparing lawsuits against the B.& O., the employer of Orlando, well knowing that the practice was deceptive and was morally and legally wrong as respects Orlando toward his employer.

I note here they didn't say it was wrong for Ruffalo to prepare his case as well.

They said it was wrong for Orlando toward Orlando's employer and therefore wrong for Ruffalo to use Orlando when Orlando was doing something that is disloyal to his employer.

At the time the charge was added, the examiner said that the only evidence he was depending upon is that from Ruffalo's own lips to you, gentlemen, and then that from Orlando saying, “We don't have anything else to support it”.

However, they did give Ruffalo time to answer the charge based on what he had already said in which was a fairly meaningless procedure since there was nothing to add or take away from it.

Now, I realized that --

Chief Justice Earl Warren: What was their decision on that issue?

Mr. Craig Spangenberg: The panel said that was wrong.

The Supreme Court of Ohio said that a man who would hire an employee and investigated to work against the interest of his general employer was not morally fit to be a member of the bar of the State of Ohio.

The Court of -- the District Court said, “No”.

They thought it was a proper practice.

The Court of Appeals, said that if we -- the profession of high-minded man must rely upon planting secret agents in the shops of those we call to account, we cannot hope to enjoy public respect and they would not find it unreasonable for Ohio to say that this would justify disbarment.

This is the one ground on which the Court of Appeals said that Ruffalo should be disbarred from the Court of Appeals.

So far as our position in this Court is concerned, I realized that you said in Theard that the state court finding brought title deeds of high respect.

But I realize also that in Selling, you said that you had a duty not to disbar unless constrained to do so by principles of right and justice.

We all recognized that to a trial lawyer of the law is his life.

If you take that from him, you have taken a great deal.

But our position generally is that even a lawyer is entitled to due process when he is brought up on charges, and chiefly, that he ought to have the right to know in advance that what he is doing will be called to account before some reviewing court.

I would think also that this Court would look to the right of the client, the right of the public to have his case well-prepared.

Here, I realized that the Court of Appeals said, “Present rules of discovery will do all you need to do.”

I'm afraid the Court of Appeals' judges who wrote that have never been down on the battleground trying cases.

You can't have discovery on the federal practice until you file the petition, you can't file the petition unless you have some idea what the accident was about, and indeed, discovery presupposes that we both investigate.

The defendant then asked me what I have found out, I asked him what he has found out.

To give discovery to the defendant, I must do some preparation.

As a practical matter too, it helps when you prepare an interrogatory to know what the information is you're trying to seek, and I would think that a blind reliance on no preparation at all, with the simply list of interrogatories after you filed a lawsuit on which you don't know whether you ought to believe or not, does not really serve the client well.

Our Canon of Ethics would deny to railroad employees, in the Sixth Circuit at least, effective legal assistance can hardly be justified unless it really involves some basic immorality.

But let's take a simple example, Your Honors.

Suppose a widow calls me, I do some railroad work, not a great deal, but some, says her husband has been killed on the railroad.

She has no real knowledge what happens.

She's heard some rumors, in those cases and they have happened.

It's commonplace to call a former client who you know works on the railroad and ask him if he will come in and tell you what he knows, what has he heard, and what area of the yard did it happen, what track, what generally is the story around the yard as to how the accident happened.

And these men generally are willing to come in but always with a caveat.

I'll have to mark off if I do, “Will you pay me for my time?”

Well, of course, you'll pay him for his time.

In the same way in an admiralty case who will pay a seaman first time to come in and tell us what is the layout of the boat.

What kind of tackle?

What kind of equipment was involved in the accident?

And lawyers do pay money to employees of corporate defendant for information necessary to get some knowledge of the case and to lead them into further exploration.

But the simple act of like paying an employee of say the River Terminal Railroad, to come in and tell what he has heard, would now be condemned by the holding of the Supreme Court of Ohio because there is no question but that it is a payment of money to a general employee for information helpful in preparing a case against that railroad.

Justice Abe Fortas: But isn't there a narrow point here which is -- that is alleged in a way as I understand it, that Orlando for a pay advised Mr. Ruffalo with respect to cases against Orlando's employer.

Mr. Craig Spangenberg: Yes, Your Honor.

Justice Abe Fortas: And I suppose --

Mr. Craig Spangenberg: I am presupposing --

Justice Abe Fortas: That raises a real problem, doesn't it, whether or not it's grounds for disbarment that does ordinary practicing lawyers mind, that would raise a real problem, wouldn't it, Mr. Spangenberg?

Mr. Craig Spangenberg: I'm giving you the same example and that the widow said her husband was called on the River Terminal.

The only one who'll know about that is a River Terminal employee and which I'm quite likely to find one and ask him to come in and tell me about it and pay him the first time.

Justice Abe Fortas: Would you think it's all right for lawyer, I don't want to personally any of these questions, would you think it would be all right for a lawyer having a case against the B.& O. Railroad who calls some employee of the B.& O. for advice or assistance?

Mr. Craig Spangenberg: Yes, I think he would do better to call a B.& O. man than a Pennsy man if he wants to know what the track layout was, where the latter goes, what the rip track -- where the rip track located and so forth.

A yard layout should do get from a man who works in the yard or who has worked in the yard.

Justice Byron R. White: Then so far as the relationship between employer and employee is concerned, would it made any difference to the Supreme Court of Ohio and if there are no money in past hence?

Mr. Craig Spangenberg: Apparently so, they made a good deal of the point of the statute, Section 60 of FELA that makes it illegal to try, for the railroad to try and keep its employees from giving information as written in terms of voluntarily furnishing information.

So they said that although Orlando, as an employee, could voluntarily give the information he couldn't be paid for giving the information to Ruffalo.

Justice Byron R. White: You mean the payment makes it involuntary?

Mr. Craig Spangenberg: Yes, it's all they said.

You'll find that in the Supreme Court of Ohio's opinion where that point was raised.

Justice Byron R. White: As far they are concerned, an employee of a company is certainly free to volunteer information to an attorney who is --

Mr. Craig Spangenberg: Yes, Your Honor.

Justice Byron R. White: -- suing the railroad on account of injuries to a fellow employee?

Mr. Craig Spangenberg: Yes, Your Honor.

They said they can, they can take money for it or be paid for doing it.

Justice William J. Brennan: Well, was that at the ground taken by the Court of Appeals Mr. Spangenberg?

Mr. Craig Spangenberg: No.

No the Court of Appeals simply --

Justice William J. Brennan: I take it that there's nothing -- no matter what the outcome of this case, even favorable to your client --

Mr. Craig Spangenberg: Pardon?

Justice William J. Brennan: Even if the outcome of this case is in favor of your client, this is not going to help him, is it?

The disbarment --

Mr. Craig Spangenberg: Please do not be misled, Mr. Justice.

The District Court said that he could see nothing wrong with it and that Ruffalo's right to practice in the Federal District Court would be upheld.

That's where FELA cases are generally tried.

Justice William J. Brennan: Yes, but they may be brought also in the state courts.

Mr. Craig Spangenberg: Yes, they may be.

Justice William J. Brennan: But the point is, the only point I'm making is, I don't quite see the relevance or the bases upon which the Ohio Supreme Court acted here.

If we agree with you that in any event, the Court of Appeals was wrong, we might reverse here even though we might think that the Ohio's Supreme Court's basis was supportable.

Mr. Craig Spangenberg: Yes.

Justice William J. Brennan: Is that right?

Mr. Craig Spangenberg: You could do that.

In which case, Mr. Ruffalo would be reinstated to practice in the Court of Appeals for the Sixth Circuit, there is no doubt from the opinion in the District Court that he would welcome this opportunity to say to reinstate Ruffalo in the federal court.

Justice William J. Brennan: Now, what's the basis -- to what power of review are you appealing?

Mr. Craig Spangenberg: The power of this Court to review the Circuit Court -- the Court of Appeals for the Sixth Circuit.

Justice William J. Brennan: Well, I mean on what grounds, supervisory power or what?

Mr. Craig Spangenberg: Yes.

Justice William J. Brennan: Just the general power of the Court, to supervise --

Mr. Craig Spangenberg: To review an order of the Court of Appeals, which strikes a lawyer from its roles, in the sense that you do have power of review as part of your general supervisory power of that Court.

Justice William J. Brennan: You mean that is the -- then on the merits of any disbarment in the District Court or the Court of Appeals, your suggestion is that we may what?

Reconsider the record de novo and to say they are or not wrong or what?

Mr. Craig Spangenberg: No, I do not suggest -- I think that you could if you chose to.

I think you would not choose to.

I think you would review the record as it is in the same way that the District Court and the Court of Appeals merely reviewed the Ohio findings.

You are entitled to review that Ohio findings and say to the Court of Appeals --

Justice William J. Brennan: There is something of -- a rather large autonomous discretion, isn't there, in matters of disbarment in the courts that have that function?

Mr. Craig Spangenberg: Well, I do not want to yield the point completely, Mr. Justice, but I would say that if this Court wrote an opinion saying that in its opinion, his conduct is not shameful, does not show bad moral character, that it will certainly lead the District Court to follow the superior court that is superior to the Court of Appeals which the District Court now feels constrained to follow.

Justice William J. Brennan: Is Mr. Ruffalo member of this bar?

Mr. Craig Spangenberg: Yes, he is, Your Honor.

You may consider this --

Justice William J. Brennan: Well, I take it if we affirm here, we then have to contemplate proceedings to disbar him here, wouldn't it?

Mr. Craig Spangenberg: I have waived notice in my brief and in the petition for writ, I've said that you may consider this as your own hearing on whether you will disbar Mr. Ruffalo out of this Court.

I certainly do not ask you to hold a separate hearing on the matter that you will consider here thoroughly on the same record.

Chief Justice Earl Warren: There is no due process question here?

Mr. Craig Spangenberg: There is certainly a due process question here, Your Honor, and that there is --

Chief Justice Earl Warren: Well, I'm not questioning.

What I understood you to answer Justice Brennan, that it was just our supervisory power that was involved.

Mr. Craig Spangenberg: Well, I thought he was addressing to whether you could now go back to the Supreme Court of Ohio.

I am not sure that you can, perhaps you can.

Chief Justice Earl Warren: But there is a due process question here?

Mr. Craig Spangenberg: I would like to come to that, Your Honor, and state that in Ohio, misconduct is a defined offense, defined --

Justice Byron R. White: Well, are you talking of -- are you saying that the due process question is involved in the Ohio judgment or in the Court of Appeals?

Mr. Craig Spangenberg: In all judgments.

I say that he was denied due process in Ohio.

He was disbarred in complete contradiction of every fundamental concept of due process.

Justice Byron R. White: But should you confine your argument to due process issue in the Court of Appeals?

Mr. Craig Spangenberg: Well, Your Honors, you have said in Theard and in Selling that you would review the state court proceedings to see whether or not the respondent received due process in the state court.

This against the argument generally made its unseemly to the federal court to retain on its roles, a lawyer who has been disbarred by the state.

It is rather more unseemly to strike him from your roles if he was disbarred from the state in complete contravention of our fundamental notions of due process because you are a Constitutional Court.

Justice William J. Brennan: Well, I suppose, you mean in so far as the Court of Appeals may have reached its conclusion based upon what the Ohio Supreme Court did, are you arguing that because he was denied due process as you submit in the state proceeding, then necessarily, the Court of Appeals could not have relied upon the state judgment in any respect, is that it?

Mr. Craig Spangenberg: Yes.

I say also that -- I would hope this Court would reverse at least the language of the Court of Appeals which said that due process does not require bar associations to fashion that Canon of Ethics, to define the impermissible conduct in advance.

What the Court of Appeals said was, our profession is not summarily and ethically naïve as to need advanced definition of what is and what is not the impermissible behavior.

To me, this is a critical point.I think lawyers do need advanced definition from some source.

It may be that the wrong is so universally recognized that you need not spell it out, but for a course of conduct that has been followed by lawyers from time in memorial, I think you do need advance definition when you're going to say, from now on this is improper and we will disbar a man who did it before we ever said it was improper.

To say that you cannot pay for information is to say that every district attorney in the United States should be disbarred, I would assume, if he uses the information that comes from a paid informer who actually breaches someone's trust which isn't much go as much deeper than this business of using a simple yard laborer as an investigator.

And note, Ohio had said that misconduct, as a defined offense, consists of a violation of the Canon of Professional Ethics.

There are 47 of those who any lawyer could read through the 47 and know generally what he could do and what he could not do.

But if they say this is misconduct, and then they do, misconduct is defined as the term as used herein, says Ohio, as a violation of the Canons of Professional Ethics.

No one has been able to find anywhere in all of the 47 Canons where this kind of views of an investigator violates anything or even comes close to violating a Canon of Ethics.

Now this was the argument I made in the Court of Appeals, saying it is not wrong to which the Court of Appeals said that due process doesn't require the Bar Association to fashion a Canon of Ethics in advance on this ground that our lawyers are just not ethically naïve.

I quote the Court exactly in language that I've said in my brief.

I thought it was rather prim, if a lawyer can read all of Draco's legal ethics, which is the leading text, read all the Canons and read every decision in the United States and find no word anywhere that hiring a man like Orlando is wrong, then on what -- how does due process get satisfied?

How do you reconcile this with Lanzetta, with Connolly, with Giaccio, with Bouie where you've said in every kind of proceeding, where there is to be some criminal or quasi-criminal penalty, an advanced definition is needed.

And particularly, when you give an advanced definition, this is your decision in Bouie of course, if you give an advanced definition as Ohio has saying, it's a violation of a Canon of Ethics, how can you then say you have satisfied due process when retroactively you expend and say any kind of conduct that we deem to show who are moral character will be enough to justify disbarment even though it doesn't violate the Canon of Ethics?

Thank you, Your Honors.

Chief Justice Earl Warren: Mr. Koykka?

Argument of Thomas V. Koykka

Mr. Thomas V. Koykka: May it please the Court.

We should have in mind what it is that John Ruffalo was disbarred for.

I can give that to the Court most clearly by quoting to you what it was that the Court of Appeals said.

The Court of Appeals said that one who hires an experienced lawyer, and here was a lawyer John Ruffalo who had 18 years of experience at the bar practicing in Youngstown, Ohio, to act as an undercover agent to obtain evidence and information for use in suits against his own employer does not exhibit the fair character and the integrity which must be the mark of a lawyer.

The Court said, “We do not believe we should say to today's society of whom we ask that our profession be held in high regard that we do not have the ability to represent our clients except through planting secret agents in the shops of those we call to account in the Courts.

If this kind of espionage is -- has become a way of life in some of today's business, more is expected of a lawyer, then that they conform to the minimal standards of the marketplace.

Justice William J. Brennan: Mr. Kokkka, what's the reference to undercover and secret -- what is the evidence in that?

Mr. Thomas V. Koykka: Yes, I walked to turn to that, Mr. Justice Brennan.

May I first, before I answer it, point out that the Court of Appeals disbarred this man because he was dishonest.

I want to return to that later.

I'll now return to your question, Mr. --

Justice Hugo L. Black: Because he was what?

Mr. Thomas V. Koykka: Because he was dishonest and that point, I want to develop later but first, I want to answer the question --

Chief Justice Earl Warren: But what was the dishonesty this one that you're making a point here?

Mr. Thomas V. Koykka: Yes, the dishonesty was enlisting an employee in the very camp of the party he was suing to develop evidence against that party.

No one is saying to this lawyer that he may not fully investigate cases.

What the Court of Appeals said to this lawyer is that a lawyer does not go into the camp of the party he is suing and then list --

Justice William O. Douglas: Counsel, that's what the United States did in the Hoffa case.

Mr. Thomas V. Koykka: Your Honor, that -- the United States did not quite do that.

In the Hoffa case, if the evidence had been presented here, that in the Hoffa case, the evidence obtained by the secret agent was used in the Test Fleet case.

I think you would have had an entirely different question.

But the Court itself made the distinction in the Hoffa case that there, the evidence that was obtained --

Justice William O. Douglas: I wasn't talking about that.

I'm just talking about the situation, the practice at present.

Mr. Thomas V. Koykka: That is true, but may I say to that, that different policy considerations to begin with come into play there and that you are dealing with a criminal elements who do not regard and have no respect for the law.

Now, to apply that same analogy here, no one is saying to Mr. Ruffalo, that he may not employ an undercover agent if he wishes to.

Justice William O. Douglas: Well, if we have a constitutional question, I wouldn't think it would turn whether the man is a rascal, or a crook, a churchman, or a fine and outstanding citizen, because all the Constitution says, “Any person.”

Mr. Thomas V. Koykka: But the Court permitted the use in the Hoffa case of that evidence which was obtained by the undercover agent.

Chief Justice Earl Warren: He was an employee of Hoffa.

Justice William O. Douglas: Well, he was -- I understood he was not an employee of Hoffa but the evidence was not used to convict Hoffa.

It was used to convict the person who sought to influence the jury.

It was not used in the prosecution of the criminal case against Hoffa.

It's an entirely different situation, if Your Honor, please.

Chief Justice Earl Warren: You mean this -- the testimony of this employee of the Teamsters Union was not used in the Hoffa case?

Mr. Thomas V. Koykka: Not in the -- not in the Test Fleet case.

Chief Justice Earl Warren: You mean the criminal case against Hoffa?

Mr. Thomas V. Koykka: Yes, it was not used in that.

That was the case which was on trial and it was not used in that case and that was the distinction that the Court made in that case.

That it was evidence that was used to convict for the attempted jury tampering.

Chief Justice Earl Warren: Who were the defendants?

Mr. Thomas V. Koykka: The defendants were Hoffa and the others but it was not in the Test Flee case that the evidence was used.

Chief Justice Earl Warren: What about if it's used against Hoffa --

Mr. Thomas V. Koykka: Yes.

Chief Justice Earl Warren: -- as this testimony was used against the B.& O.?

Mr. Thomas V. Koykka: This testimony was used against the B.& O., yes but there is a difference, we submit to Your Honors, in a situation that arises in a civil case and one that arises in a criminal case, I think different standards are applicable, and I say to your --

Chief Justice Earl Warren: What difference in ethics is there between the criminal and the civil case?

Mr. Thomas V. Koykka: The first is that you are dealing with a criminal problem with an element which does not respect the law.

That is point number one --

Chief Justice Earl Warren: That there are a lot of people who were charged, who were not necessarily guilty?

Mr. Thomas V. Koykka: That is true but we are not saying to this man that he may not use an undercover agent, and the Sixth Circuit didn't say that.

It said, “You may not subvert the employee of the party you were suing to that purpose”.

Justice Thurgood Marshall: Mr. Koykka, you've got now -- you've got two justices that would like for you to explain what do you mean by undercover, there are two of us who now --

Mr. Thomas V. Koykka: Yes, undercover -- let me put it this way.

When the charges originally were laid against Mr. Hoffa, the charge of hiring the undercover agent was --

Justice Thurgood Marshall: No (Voice Overlap) undercover agent -- and you said that Orlando --

Mr. Thomas V. Koykka: Yes, Orlando was –-

Justice Thurgood Marshall: -- was an undercover agent.

Is that your language?

Mr. Thomas V. Koykka: Yes, it is.

Mr. Orlando was the undercover agent.

Justice Thurgood Marshall: What is there in the record to show that he was an undercover agent?

Mr. Thomas V. Koykka: It is the testimony of Mr. Ruffalo and Mr. Orlando.

I must --

Justice Thurgood Marshall: That it was a secret.

That it was a secret that he was representing --

Mr. Thomas V. Koykka: Yes, it was, Your Honor.

He was -- let me go back to say that this was not a charge originally made.

Justice Byron R. White: I thought he actually transported witnesses to the court during that time.

Mr. Thomas V. Koykka: That is one of the things that he did but it wasn't the thing on (Voice Overlap) was disbarred.

Justice Byron R. White: (Voice Overlap) do that, isn't it?

Mr. Thomas V. Koykka: No, I'm not referring to that.

But when the charge --

Justice Byron R. White: (Voice Overlap) that's the trouble he --

Mr. Thomas V. Koykka: I beg your pardon?

Justice Byron R. White: I agree with you.

You were not referring to Orlando.

I would suppose you would before you call him in an undercover agent.

Mr. Thomas V. Koykka: Well, I'm trying to get to the basis for calling him an undercover agent that initially, when the charges were brought, there was no charge that he had hired Mr. Orlando to investigate cases.

The charge was that Orlando was soliciting lawsuits for him two charges of that and so the relationship between Orlando and Ruffalo was a matter of critical concern to the commission.

Now, Mr. Ruffalo came in and said that, “No, he is not soliciting cases for me,” but testified that he was doing something much worst.

He was in my --

Justice Abe Fortas: Excuse me.

But weren't those charges of solicitation dismissed?

Mr. Thomas V. Koykka: Those charges were, but there were other charges of solicitation that were sustained by the commissioners but not sustained in the state court.

Justice Abe Fortas: All right but however that may be, as the matter now stands, there is no finding that any -- before us, that Orlando or anybody else are not authorized to do so, not properly authorized to do so solicited business for Ruffalo, is that right?

Mr. Thomas V. Koykka: That is right.

No such finding here.

But in explain -- in defending against that charge, Mr. Ruffalo testified defense that we believed demonstrated much more serious conduct that Ruffalo was investigating cases against his own employer and the commissioner said, “What records --”

Justice William J. Brennan: All right, now why is that undercover (Voice Overlap) --

Mr. Thomas V. Koykka: I am trying to, but I have to give Your Honors, the background.

Justice William J. Brennan: Yes.

But so far, your whole emphasis is that he was investigating cases which were Mr. Ruffalo's office and which his employer was the defendant.

That's what you told so.

Mr. Thomas V. Koykka: That's right.

The Baltimore & Ohio was the defendant.

Justice William J. Brennan: Well, is that all there is to the case?

Mr. Thomas V. Koykka: No, it isn't.

Not at all, Your Honor.

He was asked to produce his records to show this relationship and he said, “I don't have any records."

“Why?”

“I destroyed them,” and he said that, “I paid my other investigators by check.

I paid Mr. Ruffalo in cash.”

Why?

Justice Hugo L. Black: Is he disbarred -- is he disbarred for that?

Mr. Thomas V. Koykka: He is disbarred for that very thing for hiring secretly --

Justice Hugo L. Black: Disbarred for destroying his checks?

Mr. Thomas V. Koykka: No, no, Your Honor.

Justice Hugo L. Black: But what does that have to do with it?

Mr. Thomas V. Koykka: It has this to do with it, that he then was asked why and he said, “And this is what makes him an undercover agent.”

He said, “We didn't” -- this is Mr. Ruffalo, “We didn't want it to be known in case any question came out about it that Orlando was working for me.

We kept it that way for the particular fact that he was working for the B.& O. Railroad and we didn't want to get him involved,” and that, Mr. Justice Brennan, I say, is evidenced that makes him an undercover agent and it was (Voice Overlap)

Justice Thurgood Marshall: It could be simply that he didn't --

Justice Abe Fortas: And that was the evidence of dishonesty?

Justice Thurgood Marshall: Mr. Orlando didn't want to get fired?

Couldn't that be --

Mr. Thomas V. Koykka: It could have been but that --

Justice Thurgood Marshall: Was that illegal?

Mr. Thomas V. Koykka: It is -- it does not --

Justice Thurgood Marshall: Was that illegal?

Mr. Thomas V. Koykka: It does not lessen the lawyer's obligation not to get a layman into that kind of position.

Justice Thurgood Marshall: Well, what kind of a position is it?

Is -- could Orlando -- I thought you said a minute ago that it would be all right if Orlando had volunteered to do this and have done it for nothing.

Mr. Thomas V. Koykka: No, I did not say that, Your Honor.

That was Mr. Spangenberg who made that argument.

Justice Thurgood Marshall: Well, I --

Mr. Thomas V. Koykka: I--

Justice Thurgood Marshall: -- assume that you agree with it.

Mr. Thomas V. Koykka: No, I do not agree with it.

I say --

Justice Thurgood Marshall: You mean that if an employee of a railroad comes into a lawyer's office and says, “I'm willing to give you information.

Not confidential but I'm willing to give you information as to how an airbrake works,” would that be wrong to the lawyer to take that information?

Mr. Thomas V. Koykka: It would not be wrong but that is not what was done here.

Here was a long course of employment of this man, Orlando?

Justice Thurgood Marshall: How long?

Mr. Thomas V. Koykka: How long?

Initially, when the charge was laid, when this information came before the panel, the charge was that you did this from 1953 until 1961 and --

Justice Thurgood Marshall: How long had the association of the railroad had been investigating Orlando?

Mr. Thomas V. Koykka: I do not know, Your Honor.

And to that question, I would give the same answer as did the Court of Appeals for the Sixth Circuit that if there was a wrong on the part of this lawyer, as we believe there was, it cannot be excused by any conduct that may have been engaged in that was improper by anybody else.

Justice Thurgood Marshall: My question is, that if the association of railroads had been investigating Orlando and Ruffalo, let's say five or more years, well at least during that period, Orlando wouldn't have been a “secret” agent?

Mr. Thomas V. Koykka: They were investigating on the business of soliciting and not -- it never apparently occurred to them that he was actually investigating cases against the railroad because that fact never appeared until Mr. Ruffalo said, “That is my defense to the charge of solicitation.”

Justice Thurgood Marshall: And then you amended the charges?

Mr. Thomas V. Koykka: Then the charge was amended and the panel made perfectly clear that he could have whatever time he needed to answer that charge and indeed the hearings did not close until eight months later.

Mr. Ruffalo's defense to that charge was that it's all right for a lawyer to do that kind of thing and we do not think that that is permissible of a lawyer.

We say that --

Justice William J. Brennan: Was he also an -- in your submission, was Orlando an undercover agent as against all the other railroads for whom he investigated?

Mr. Thomas V. Koykka: That I don't know, and the record does not show.But it does show that --

Justice William J. Brennan: Well, doesn't it show that he did the same kind of work?

I understood from Mr. Spangenberg that --

Mr. Thomas V. Koykka: That he --

Justice William J. Brennan: -- he investigated all the railroads.

Mr. Thomas V. Koykka: Investigated all the railroad cases.

Justice William J. Brennan: Against all railroads, yes.

Was he an undercover agent as to those other railroads?

Mr. Thomas V. Koykka: I don't know.

The record does not indicate whether that was disclosed to the other railroads or not, so I am unable to answer.

Justice Abe Fortas: You don't mean to suggest that a lawyer would have to disclose to the other railroads that he had an outside investigator and give him the name?

Mr. Thomas V. Koykka: Oh!

No, not at all, Your Honor.

So long --

Justice Abe Fortas: Wait, just a minute.

You're not suggesting that there was anything improper about employing Orlando for purposes of investigating railroads, other than accidents on railroads other than B.& O.?

Mr. Thomas V. Koykka: Subject to one possible condition.

I think that it is wrongful conduct on the part of a lawyer to hire even Orlando as an employee of Baltimore & Ohio Railroad to investigate other railroads unless that is disclosed to Orlando's own employer, that's the only reservation I would put up.

Justice Abe Fortas: That is quite a doctrine.

Do the courts below adopt that doctrine?

Mr. Thomas V. Koykka: No.

No, Your Honor.

But --

Justice Abe Fortas: Let me ask you another question.

Mr. Thomas V. Koykka: Yes.

Justice Abe Fortas: How many -- in how many instances according to the record did Orlando investigate claims against the B.& O., his employer?

Mr. Thomas V. Koykka: The record does not show the number he investigated but it was admitted by Mr. Ruffalo frankly that he did investigate Baltimore & Ohio claims.

Justice Abe Fortas: The records didn't show there was one or a hundred.

Mr. Thomas V. Koykka: Well, there are at least three that are mentioned in the record.

Justice Abe Fortas: Against the B.& O.?

Mr. Thomas V. Koykka: Against the B.& O., yes, Your Honor.

Justice Abe Fortas: And did those relate to the area of Mr. Orlando's own employment for the B.& O.'s?

Does the record show?

Mr. Thomas V. Koykka: The record does not show.

And may I say, with respect to that -- the point suggested by that question in the argument made by Mr. Spangenberg that it seems to us not to be an answer to say that this lawyer or that Mike Orlando did not investigate in any area where -- which involves his own work nor is it an answer to say that he did not filch record from the Baltimore & Ohio Railroad and that he had no access, that we say is beside the point as Mr. Judge Edwards who dissented in the Court of Appeals said, “The employment of a -- in dealing with that specific argument made there that his work involved no supervisory responsibilities.”

Judge Edwards gave this answer and I submit that it is the answer this Court ought to accept, “I cannot avoid concluding that Orlando's access to the B.& O. property and personnel would be of potential value to respondent and that it would sometimes be impossible, probably even for Orlando to know when he was working for the railroad and when he was investigating for respondent.”

Now, I started to say that this relationship started in 1953 and when the charge was first made, Mr. Ruffalo said, “I want you to amend that charge.”

He had been subjected to discipline in the Ohio Courts for misconduct in 1957 and he said, this charge should begin from 1957 and go on forward and whether the commission could have gone earlier than that, it's not a matter of concern here because the commission exceeded to that request and the charge was amended, the charge that this relationship and the investigating cases against his own employer started in 1957 and continued until midyear in 1961.

Justice Byron R. White: So you are going to draw a line then between the continuous course of dealing with an employee because I don't suppose you would deny that a lawyer in investigating his client's case may call on fellow employees and a fellow employee may give him as much information as he has about the accident.

Mr. Thomas V. Koykka: Of course, he may.

That that --

Justice Byron R. White: And let's assume –- let's assume that that lawyer constantly goes to a particular foreman, a yard foreman where almost these accidents occur, the yard foreman readily and voluntarily gives in all the information he had.

A lawyer must be able to do that.

Mr. Thomas V. Koykka: Well, you -- if that is what he is doing, I think the lawyer has a right to do that but that is not this case.

Justice Byron R. White: What's the line you draw?

Mr. Thomas V. Koykka: The line is hiring an employee as a regular course of conduct.

And I think it would be wrong for him to say, “I want you to investigate this case against the railroad for me in this one instance.”

I think that would be wrong but that isn't this case.

But if he merely says, “There has been an accident on the railroad.

I want you to tell me whatever you know about it”.

That would be perfectly proper.

Justice Byron R. White: Should we say the yard foreman -- if the yard foreman says to him, “Sorry, I don't know anything about that,” and the lawyer said, “Well, could you please find out about it for me and tell me whom I may talk to.”

And that yard foreman investigates and calls him up the next night and says, “The fellows who really know about this are John and Jack and they tell me this,” and that's wrong.

Mr. Thomas V. Koykka: Well, if it were in the one case, I think that no lawyer would be disbarred for that.

But when he embarks on the course of conduct that this lawyer did, then I say that he has violated what is expected --

Justice William J. Brennan: How many times does he have to do it, the course of conduct?

Mr. Thomas V. Koykka: He has -- well, when he does it over a period from '57 to '61.

Justice William J. Brennan: Well, how many cases against the B.& O. does this record show Orlando helped investigate?

Mr. Thomas V. Koykka: There are at least three that are mentioned.

Chief Justice Earl Warren: In seven years?

Mr. Thomas V. Koykka: Well, there was no inquiry as to how many cases there were.

The inquiries --

Chief Justice Earl Warren: Why didn't you ask him?

Mr. Thomas V. Koykka: I -- well, I didn't ask him because I wasn't there but he was --

Chief Justice Earl Warren: Why didn't -- why didn't those who were prosecuting asked him?

Mr. Thomas V. Koykka: I would say obviously, they did not inquire into that because in their view to hire a man to do that kind of thing, not go to him casually to say, “Tell me about this accident.”

That it -- the panel believed and I believe is incompatible with the conduct of a lawyer.

It is in -- Oh!

May I say, this continued until midyear 1961, July, when the Baltimore & Ohio fired Orlando, his services for Mr. Ruffalo also terminated at the same time.

Justice Byron R. White: Well, I take it that you disagree with the other side of saying that the Railroad Adjustment Board views this practice as not a sufficient reason for firing.

Mr. Thomas V. Koykka: The Railroad Adjustment Board does not so view this practice in the very case that they cite.

What the Board did was to say that a railroad employee may tell whatever he knows about an accident but that, in that case, the firing was proper because the employee there took a stranger onto the railroad premises and took a picture of a structure that was involved in a suit.

Justice Byron R. White: That's different too, isn't it?

Mr. Thomas V. Koykka: Well, he took a picture --

Justice Byron R. White: That's different from just getting information from it --

Mr. Thomas V. Koykka: Well its --

Justice Byron R. White: -- and investigation, isn't it?

Mr. Thomas V. Koykka: The only difference is that there -- was in the form of the information that was brought back rather than by word of mouth, there it was brought back by --

Justice Byron R. White: Do you have any Railroad Adjustment Board cases that sustain firings on facts like these?

Mr. Thomas V. Koykka: No, but what the Board said in that very case, it said only that he has a right to tell what he knows about an accident, period.

And I say that cannot be read to justify this.

Next, the only case that I know of where the Railroad Adjustment Board held that an employee was improperly fired was a case where also the employee took the stranger onto the premises, took a photograph of a spiral stairway, permitted the stranger to take the photograph of a stairway which was a subject of a lawsuit.

After all, that could be a more truthful representation on what was there on the photograph and the employee said now, “I wasn't warned and there was nothing in this employment contract that said I couldn't do this kind of thing,” and the National Railroad Adjustment Board said, “You shouldn't have been fired.”

The Court -- District Court reversed that and the Court of Appeals for the Fourth Circuit reversed or held that it was properly reversed saying in an opinion Mr. Judge Gilliam said, “What could he have done that would have been more detrimental to his employer, than assuming the employ -- than assisting the employer's adversary in litigation” and that is exactly what Ruffalo did in this case.

Justice Hugo L. Black: May I ask you one or two questions?

Mr. Thomas V. Koykka: Yes.

Justice Hugo L. Black: Is there any law passed by the legislature of the State of Ohio against it?

Mr. Thomas V. Koykka: None that I know of.

Justice Hugo L. Black: Has there ever been any attempt to get one?

Mr. Thomas V. Koykka: Not that I know of.

Justice Hugo L. Black: Has the Supreme Court of your state ever held before that a man could be disbarred on this showing?

Mr. Thomas V. Koykka: So far as I -- so far as I know, there has been no like case.

Justice Hugo L. Black: Well, I'm not asking if there's been any like it.

What I'm asking you is have they ever done it?

Mr. Thomas V. Koykka: Well, not that I know of.

Justice Hugo L. Black: Have they ever disbarred a man on a showing like this.

Mr. Thomas V. Koykka: Not that I know of.

Justice Hugo L. Black: Do you -- have you investigated other states?

Mr. Thomas V. Koykka: Yes.

Justice Hugo L. Black: How many states have a law that makes this a cause for disbarment?

Mr. Thomas V. Koykka: Well, I don't know of any state that has a law to that effect but I can give you a case that isn't cited in the briefs but decided in Rhode Island where the lawyer employed, first an investigator in a divorce case to investigate the -- on behalf of the wife, and then after that service had terminated, the lawyer on the other side, after a appreciable distance of time --

Justice Hugo L. Black: Well you don't think that's like this case, do you?

Mr. Thomas V. Koykka: Well --

Justice Hugo L. Black: As a matter of fact, what you have is, you keep saying he violated something and he did something wrong.

What you have is a situation in which the policy-making body of your state has never outlawed it, your court has never outlawed it.

The Bar Association has never outlawed it and nobody else has ever outlawed it.

Mr. Thomas V. Koykka: No, I would not accept that, Mr. Justice Black.

Justice Hugo L. Black: Oh!

Where could you say it's outlawed?

Mr. Thomas V. Koykka: I say that this lawyer violated the first duty that the lawyer --

Justice Hugo L. Black: That's because you think it's wrong.

Mr. Thomas V. Koykka: Because I --

Justice Hugo L. Black: That's because you think it's wrong.

Mr. Thomas V. Koykka: And I --

Justice Hugo L. Black: What law book do you have that says it's wrong?

Mr. Thomas V. Koykka: The first Statute of Westminster enacted in 1275 that says, “That any sergeant or lawyer who engages in deception against not only the court but against the party.

Justice Hugo L. Black: You're citing the Statute of Westminster in order to justify disbarring a man in 1968 in Ohio which has no law against what he did.

Mr. Thomas V. Koykka: If, Your Honor, please, that Statute of Westminster has come down to us into our present Code of Ethics, the Canons.

Canon 41 says that the lawyer owes a duty not only to his client.

He owes a duty to the Court and he owes a duty to the other party --

Justice Hugo L. Black: Do you think any man ought to be disbarred or any man ought to be prosecuted and convicted of a crime where there has been no clear legal statement made in advance that that is the law?

Mr. Thomas V. Koykka: In my view, there is a clear statement in --

Justice Hugo L. Black: Where?

Mr. Thomas V. Koykka: -- in the Canons.

In Canon 41 that said --

Justice Hugo L. Black: That's what you're relying on, Canon 41?

Mr. Thomas V. Koykka: Canon 41 plus the oath that I heard lawyers take this morning that he will conduct himself, demean himself uprightly and according to law.

Indeed the --

Justice Hugo L. Black: According to the law, that's right.

But isn't he entitled to know what the law is?

Mr. Thomas V. Koykka: The only --

Justice Hugo L. Black: So you don't claim that anybody could have known this was against the law in Ohio, do you?

Mr. Thomas V. Koykka: I do, Your Honor.

Most sincerely, I do.

Justice Hugo L. Black: That's because you think it's wrong?

Mr. Thomas V. Koykka: I think it is wrong because of what I read, for example, in the rule of this Court, “The only standard this Court lays down for disbarment is conduct unbecoming a member of the profession.”

I think that the standards that are established for the legal profession by this Court in its rule, the same rule is enjoined upon the Courts of Appeal in the new rules that is going into effect and by the decisions of our own Supreme Court where our Court has held that any lawyer brings disbarment or discipline upon himself for -- for conduct which brings discredit upon himself or the Courts.

Now --

Justice Hugo L. Black: Do you think the home owner could have his home taken away from him by statement that he had done something which the law did not forbid?

Justice Hugo L. Black: No, I do not.

We are talk --

Justice Hugo L. Black: Do you think he would be entitled to due process to protect his property?

Mr. Thomas V. Koykka: I think --

Justice Hugo L. Black: What about his lifeblood in the law practice?

Mr. Thomas V. Koykka: I think this lawyer was accorded due process and I say that if he had read the literature on discipline, he would have found that there are many cases the country over where lawyers have been disciplined even though there was no Canon that in so many words said that conduct.

Justice Hugo L. Black: In other words, he had been disciplined whether he had not known that it was against the law?

Mr. Thomas V. Koykka: Well, because a lawyer is expected to adhere to high standards, the standards so high.

Justice Hugo L. Black: Standard is a big, big question.

What is a high standard for you or are not be a high standard for somebody else.

Mr. Thomas V. Koykka: Well, they --

Justice Hugo L. Black: I must confess that I cannot see anything wrong, whatever, in a lawyer hiring somebody to do get some evidence for him, whenever he would.

Mr. Thomas V. Koykka: Against his own employer and that, Your Honors, we say is conduct unworthy of a lawyer.

With that, we submit the case --

Chief Justice Earl Warren: Mr. Koykka, you made this an important issue in your case, the fact that this lawyer had failed to use a customary practice in paying this employee that he paid the others by check and he paid this one in cash so that other people would know it.

How do you distinguish that from the employment by the government of Partin in the Hoffa case where they use every kind of circumvention they could think of to prevent anybody from knowing that public funds were expended for this purpose?

Mr. Thomas V. Koykka: Well, I don't like you getting to the division on the court on that subjective question --

Chief Justice Earl Warren: No, you don't have to get the division just to answer my question.

Mr. Thomas V. Koykka: But I think there is.

I think there is a difference in that, as I read that opinion, there was not an employment of a person in the employ of the other party.

I did not understand that the person was an employee of the --

Chief Justice Earl Warren: Wasn't Partin an employee of the Teamsters Union of which Mr. Hoffa was the president?

Mr. Thomas V. Koykka: He was an officer of the Teamsters Union but I don't believe that he was an employee of Mr. Hoffa was the president?

Chief Justice Earl Warren: Do you think that if he had been that the government would have been guilty of the same kind of misconduct and immorality that occurred in this case?

Mr. Thomas V. Koykka: I think that wrong is in suborning the employee of the party you are suing.

Now, if the government did in that case suborn an employee of Mr. Hoffa and I did not so understand.

Justice William J. Brennan: It suborn in the sense of having him falsify something?

Mr. Thomas V. Koykka: No.

Justice William J. Brennan: Why are you using suborn?

Mr. Thomas V. Koykka: Suborn to corrupt him from his duty to his employer.

The --

Justice William J. Brennan: That is -- all as I understood that that's involved here is that Orlando investigated the facts regarding cases against B.& O.

Mr. Thomas V. Koykka: Against his --

Justice William J. Brennan: All right!

Is there any suggestion that he falsified anything he found?

Mr. Thomas V. Koykka: No.

Justice William J. Brennan: Well then I don't know that suborn is right.

Mr. Thomas V. Koykka: He was suborned from his duty to his employer, the B.& O.

The first duty of an employee is loyalty to his employer and this Court has so held in the opinion of Mr. Justice Burton involving the pickets at the television station.

The first duty of the employee is the duty of loyalty and that is what was corrupted here.

Justice Thurgood Marshall: What is the duty, the level of duty of loyalty of a man that checks airbrakes on cars in B.& O. Railroad?

Mr. Thomas V. Koykka: It is the same --

Justice Thurgood Marshall: Wouldn't be his loyalty be to a good workman like job on an airbrake, period?

Mr. Thomas V. Koykka: It is the same kind of duty as we impose upon a trustee, for example, where we --

Justice Thurgood Marshall: That's your position.

Thank you.

Mr. Thomas V. Koykka: We say that we will not permit you to get into that situation where you may breach your duty of loyalty.

We will not permit it and we will not permit a lawyer to let a layman get into that position.

Chief Justice Earl Warren: What do you do at this language of the National Railroad Adjustment Board where it says, “On the other hand, there is no doubt whatever of the right of an employee when off duty to assist an injured employee or his representative in any manner including the gathering of evidence and so long as it is limited to the development of truth, it cannot be regarded as disloyalty nor afford just grounds for discharge.”

Mr. Thomas V. Koykka: I have no complaint with that statement.

I say, when a lawyer goes and hires a person to do that kind of thing, then he had violated his oath of office.

Chief Justice Earl Warren: Where do you get any authority for saying there is a difference between doing this specifically on one hand and paying him for his time when he's off duty on the other?

Mr. Thomas V. Koykka: I think there is all that difference in the world, Your Honor.

There, you are asking the employee to come and tell you about the specific facts of an accident.

That he may do.

But I do say that the lawyer has no right to hire that employee to do that kind of work.

Chief Justice Earl Warren: Well, this language says, “He has a right to assist an injured employee or his representative in any manner including the gathering of evidence.”

Where do you get the distinction between that and where he pays him for his time?

Mr. Thomas V. Koykka: I don't think the matter of payment is particularly relevant.

Chief Justice Earl Warren: But what is relevant?

Mr. Thomas V. Koykka: But the fact that he enters upon a course of conduct and that a lawyer suborns that obligation of loyalty and says, “You, you go and investigate things against your own employer.”

That is the thing that is wrong and I submit that the conduct of a lawyer's -- if that is to be accepted as a standard of conduct for lawyers, then it seems to me discipline at the bar is gone if there must be --

Justice William J. Brennan: Mr. Koykka, may I ask you something?

Chief Justice Earl Warren: Yes.

Justice William J. Brennan: Is this statement under your adversaries' brief accurate?

“A very few former discreditable clients may claim some impropriety which the American Association of Railroads then turned over to the president of the Mahoning County Bar Association, who was also the defense counsel in the Youngstown area for the B.& O. Railroad.

The Mahoning County Bar Association then filed a charge against the petitioner,” is that right?

Mr. Thomas V. Koykka: That statement is made --

Justice William J. Brennan: And is it true?

Mr. Thomas V. Koykka: I cannot answer it from the record.I am told that the president have actually nothing to do with the --

Justice William J. Brennan: Was he the original counsel of the B.& O. Railroad at that time?

Mr. Thomas V. Koykka: I am told, outside the record, that his firm was counsel for the B.& O.

But I understand that the information came to him because he was president of the Bar Association.

Justice Abe Fortas: Could I ask you one question?

Justice William J. Brennan: But he didn't think that his relationship with the B.& O. required him to disqualify himself from the consideration of the matter?

Mr. Thomas V. Koykka: Well, I don't know that he -- I don't know that that he did participate in the consideration but accepting to turned it over to the appropriate grievance committee of the association.

Justice Abe Fortas: I know your time has expired but I want to ask you one question to explore the perimeter of this doctrine that you're stating.

Suppose a lawyer's client -- suppose a lawyer works for an industrial company in Ohio and the president of the company comes to him and says, “You know, we have some litigation against company X and I paid a thousand dollars to one of the employees of company X that came to us.

He came to us voluntarily on his own initiative and he gave us some information that's useful in that litigation and the lawyer proceeds to use that information in the litigation.

Would the doctrine that you are here stating extend to disbarment of that lawyer?

In other words, the lawyer knowingly uses in litigation information that has been supplied at the initiative of an employee of the adversary in litigation and for which that employee has been paid.

Mr. Thomas V. Koykka: No, I do not, Your Honor.

-- I see that if the lawyer --

Justice Abe Fortas: You dont think the lawyer would be subject to disbarment?

Mr. Thomas V. Koykka: No, I do not but if the lawyer undertook to do that, then I would say that --

Justice Abe Fortas: Well, a lawyer uses it with full knowledge and the illustration I gave -- if the lawyer uses that information with full knowledge of how it's been obtained, your answer's the same?

Mr. Thomas V. Koykka: My answer is the same, Your Honor.

I say that if the lawyer, however, had anything to do with developing that then he has departed from what I hope will continue to be the high standard -- a standard so high for lawyers that when he jumps down from --

Justice Abe Fortas: (Voice Overlap) you wouldn't like to see that high standard elevated a little higher in the case that I put.

Mr. Thomas V. Koykka: Well, I would be perfectly content to have it, yes, Your Honor.

Chief Justice Earl Warren: Very well, Mr. Koykka.

Mr. Thomas V. Koykka: Thank you, Your Honors.

Chief Justice Earl Warren: Anything further, Mr. --

Rebuttal of Craig Spangenberg

Mr. Craig Spangenberg: In answer to the question that was put, I would refer you simply to appendix Volume I, page 21(a).

I think Mr. Justice Brennan asked the question about the part of the -- of Mr.Brownlee in the inception of the charges that's covered in the District Court's opinion.

It is based on record evidence, Your Honor.

Justice John M. Harlan: I would like to ask you a question on the motion to show cause.

Mr. Craig Spangenberg: You have never filed a motion to show cause, Your Honor.

And the --

Justice John M. Harlan: Upon your request?

Mr. Craig Spangenberg: In the petition for the writ of certiorari, I suggest to the Court that we would waive motion to show cause.

I think under your rules, you should file one.

I have said we will treat our own petition as a response to the motion to show cause which you have not filed.

And as your disposition on the appeal, I think whatever you say about his conduct, you may say for yourselves.

We do not ask for a separate hearing or a separate motion to show cause from this Court.

The matter is now before you and his admission to the bar of this Court is in review on the Court of Appeals.

Justice John M. Harlan: And with or without?

Mr. Craig Spangenberg: With or without, we are content to rest on this record and the facts that it shows as to what he did and what he did not do.

Justice William J. Brennan: Well, is that a concession too, Mr. Spangenberg if we sustain the Court of Appeals on the ground taken to disbar him, you concede that that also would be sufficient ground to disbar him in this Court?

Mr. Craig Spangenberg: If the majority of this Court feels, that that shows he has character unworthy of a lawyer, then disbar him here too, and let the bar of the country know that how far we can go in representing our client.

Chief Justice Earl Warren: Very Well, Thank you.

Featured:

Spevack v. Klein - Oral Argument

Thu, 23 Aug 2012 18:16:21 +0000

Case:

Spevack v. Klein

Media File:

62_19661107-argument.mp3

Related Transcript:

62_19661107-argument

Transcript:

Argument of Lawrence J. Latto

Chief Justice Earl Warren: Number 62, Samuel Spevack, petitioner, versus Solomon A. Klein.

Mr. Latto.

Mr. Lawrence J. Latto: Mr. Chief Justice, may it please the Court.

This is the third case which arises out of a judicial inquiry established by the Appellate Division, Second Department State of New York to reach this Court.

The first Anonymous v. Baker to sustain by a narrow majority, the validity of the procedures followed by that inquiry against the claim that where in violation of the Due Process Clause of the Fourteenth Amendment.

The second was Cohen against Hurley, in which by the same majority do upheld the disbarment of a lawyer who withheld by the majority in that case to have pleaded only his state privilege against self-incrimination.

That case also was decided before New York and the other state were required to give recognition to the Fifth Amendment.

That requirement being imposed by your decision in the Malloy against Hogan and for reasons which are set forth with greater detail in our brief, we feel that for these reasons, the decisions in Cohen against Hurley is certainly not controlling and indeed hardly enough competitive here.

This case, it does present the question squarely of what construction must be given to the word compel in the Fifth Amendment.

The petitioner here was admitted to the bar of the State of New York in 1926.

He practice without criticism or approach until June of 1959 when he was served with a subpoena commanding him to appear before this judicial inquiry.

The subpoena indicated that he would be required to testify with respect to matters pertaining to its businesses and attorney and it also requested that he produced a large number records all of which were designated in 12 separate very broad categories and indeed a catch-all phrase which said that he was required to produce all other deeds, evidences and writings which you have in your custody or power concerning the premises.

Insofar as it appears, there were no charges against him and respondent's brief indicates that the reason that he was called was because he had filed a large number of what are known the statements of retainer.

These are statements which are required to be filed with the Appellate Division by attorneys who have more than a certain number; I believe that's five cases in a given year in which their compensation is on a contingent basis.

And he had well in excess of the required number and had filed a statement.

He appeared before the inquiry.

He moved to quash the subpoena.

This motion was denied, appeals were taken and the denial was upheld.

He then interposed a claim of privilege under the Fifth Amendment as made -- well, he claims the privilege under the state privilege against self-incrimination as well.

And it was made claim to him at the time he first claimed the privilege that it was available.

It was -- there was stated unequivocally by the presiding justice that he have an absolute right to claim the privilege.

He was informed that there was a test case pending that was Cohen against Hurley and that would be appropriate to recess the hearing until the determination of that case and this was done and the rather lengthy recess ensued.

Subsequently, after the decision in Cohen against Hurley, he was again requested to appear after some vacillation he did reinstitute his claim that quite unequivocally and in connection with that, it was made claim to him that while he had a right to claim the privilege, the consequences might be very serious.

Indeed that the consequences might be disbarment.

Irrelevant portions to which I refer are pages 44 and 45 of the record.

The counsel for the inquiry quoted from the Cohen decision.

I pointed that it was to be urged that the appellate division -- to the Appellate Division that he was guilty of the same kind of failure to cooperate with the Court which were the basis for the disbarment of Cohen.

Nevertheless, he adhered to his determination with his decision not to respond or to read -- or to produce these records and subsequently, the Appellate Division ordered respondent to institute proceedings which are procedure filed in New York for disbarment.

The proceedings were held a rather full account of the proceedings before the judicial inquiry can be found in the referee's report that which is at pages 56 to 81 of the record.

These proceedings are held before a referee.

There was an petition to the Appellate Division to confirm the order of the referee and the opinion of the Appellate Division is found at record 83.

Essentially, the Appellate Division held once again, it was perfectly clear that the petitioner had the right to claim the privilege against self-incrimination.

But that in doing so, he had failed to observe his obligation to be candid, to be frank, to be cooperative with the Court in which his failure to conform with that duty which was the basis for the other of disbarment.

The appeal was taken --

Justice John M. Harlan: Wrong doing -- wrong understanding --

Mr. Lawrence J. Latto: Well, we assert of course that it's only on the basis of such inference that this could be done.

But the Appellate Division --

Justice John M. Harlan: Expressly disclaim --

Mr. Lawrence J. Latto: The Appellate Division disclaimed any inference of wrongdoing.

The Court of Appeals to which an appeal was taken affirmed summarily with a very brief memorandum of opinion which I think I might read it said simply or to affirm now the authority of Cohen against Hurley 366 U.S. and on the further ground that the Fifth Amendment privilege does not apply to a demand, not for oral testimony but that an attorney produce records required by law to be kept with him -- by him, Boyd and Davis, and Shapiro against the United States which is of course the relevant decision.

To return to the irrational of the Appellate Division, a -- it assert quite plainly that no inference of wrongdoing of any kind was being drawn from his assertion of privilege.

The Appellate Division said that when he appeared before the inquiry and I quote its words, he had an absolute right to invoke his constitutional privilege against self-incrimination.

In other words, the right or privilege not to testify but that he also have a common law right, possibly a statutory right.

There is a provision of New York law which regulates the practice of law by attorneys.

But he also had this common law duty to testify and that the duty to testify can be separated and viewed entirely apart from the right not to testify.

Now, the fist question is whether this is simply playing his words as we asserted this or whether this is in fact a fair and meaningful way of looking at this matter.

The question is most important because if the Appellate Division in the New York courts are correct.

Then this really contend a very simple case.

There's no problem at all.

They admit that no penalty, no sanction is being imposed by reason of the invitation of the privilege.

Indeed they say if -- it is not even being impaired or diminished in any way.

They say they are focusing on this obligation to cooperate.

His duty to testify and it is unrelated to his right not to testify.”

I think it can be demonstrated quite easily and readily that there can no separation of these two opposite sides of the same coin and that's best on by considering what would be the result if his refusal to testify had been placed upon the attorney-client privilege.

Here, I think, everyone respondent to New York courts would all agree that he could not be disbarred for failure to cooperate with the New York courts by failing to be candid, by failing to be frank with them.

Justice Abe Fortas: No, that's not his privilege.

Mr. Lawrence J. Latto: That's exactly the point Mr. Justice Fortas.

It is not his privilege but the point is that you must examine the reason for his refusal to be cooperative.

The question of what that reason is, I'm putting aside for the moment.

The only question I'm directing myself to is must you examine the reasons.

Can you avoid looking entirely at the reason?

Now, the Appellate Division has said, yes, we can avoid looking at the reason.

And all I'm asserting now is that they cannot do so.

If they could avoid looking at the reason, they could have avoided just as well at its privilege had been the attorney-client privilege.

Justice Abe Fortas: I shouldn't think so because in fact, with in the attorney-client situation that the testimony is not his --

Mr. Lawrence J. Latto: Yes, that is quite right.

He has an excellent satisfactory reason for his failure to be cooperative for his failure to be frank with the court.

The failure is exactly the same but you excuse it in that case because he has no privilege whatever.

He has no basis for refusing to answer.

But you examine the question of whether he has a basis or no basis for refusing to answer in reaching your conclusion.

And this is what I say must be done here.

In examining the question of whether he is guilty of a failure to cooperate with the Court.

You must examine the question of whether he has an adequate basis or not.

The question before the Court is not whether these two opposite side of the same coin can be viewed separately but whether his failure to comply with his obligation to be cooperative with the Court is subject to the claim of privilege or not subject to the claim of privilege.

This is phrase incidentally which I draw off in Justice -- Judge Cardozo, then Judge Cardozo in the case of Karlin v. Culkin when he was Chief Judge of the New York Court of Appeals.

It seems to me that's the question which must be decided is his failure to cooperate subject to the privilege which is his by virtue of the Fifth Amendment or is it not subject to a privilege.

Now, that question was not looked into, not examined at all by the courts of New York.

But it is I think before this Court and I should like to turn to it.

The question then is, what are the possible bases for concluding as New York would like to conclude that this duty to cooperate must prevail.

Now the first is the one adhere to suggested by Mr. Justice Harlan and that is I suppose it could be held that in the proceedings such as this.

An inference of guilt or of misconduct might be drawn, though you cannot under the Griffin case draw such an inference in other proceedings.

This I must say would go into conduct to virtually every decision of this Court.

If there's one thing that's clear, if there's one thing that has no division within the Court about it is that the no improper inference of guilt and misconduct of any kind may be drawn from the invocation in the privilege against self-incrimination.

This is the (Inaudible) decision in Grinwold and Griffin.

So I think this manner of saying that the duty to cooperate with the courts which regulate the practice of law must be set aside.

The second possibility would be to engage in analysis of the comparative value of a -- the comparative importance the way to be given to the need to cooperate with the Court as against the policies.

The importance of the privilege against self-incrimination and here again, I think we run into a consistent line of decisions of this Court.

So far as the Fifth Amendment had been interpreted date, it's been uniformly held that this kind of process is not engaged in.

Whatever the Fifth Amendment mean, it means and it's not to be abridged by virtue of what is considered to be a greater objective of the state.

The objective of punishing persons who are thought possibly guilty of murder or other serious crime is certainly as important to one as we know.

But it does not prevail against the Fifth Amendment and so I think that some sort of waned process to determine the relative value of these two again must be set aside.

I may say in passing that even in such process where to be engaged in.

It would not be on the basis of simply determination of which would they considered to more valuable.

The test would have to be one of necessity rather than reasonable relationship.

The same test which has been applied in Shelton v. Tucker, McLaughlin against Florida and a host of other cases that wherever a regulatory function has the tendency to impair a significant constitutional right.

A much sterner test has been applied by this Court and I presume will continue to be applied by this Court.

We then come to the only other two bases that I can see for reaching the conclusion that the duty to cooperate must prevail over the privilege against self-incrimination and that would be to construe the Fifth Amendment narrowly so as to make it not apply in this situation at all or to employ some sort of waiver approach.

Now, I mention the two of these together because the arguments which are used for each of these possible bases for narrowing the protection of the privilege tend to be the same.

In each case, the same starting place is to consider the role of the lawyer in our society.

It's pointed out that the lawyers are engaged in the administration of justice that there were no public service, that they operate on the high ethical standards which are greater than those normally applied, normally demanded of other professions.

Now, of course we agree fully that membership in the bar carries with it proud obligations that are not imposed upon other occupations nor a profession say if the duty to represent indigents for example, without compensation to the court in line, limitations upon what we may properly do in advance and the interest of our clients is another.

I think however that as lawyers and as judges, we have to guard against being taking too parochial view and guard also against being swept away by this rhetoric.

The -- there's no question that the state as a result of the special law of the attorney may regulate the practice of law very closely indeed but there is a second more important question here and that is whether there's a constitutional difference between the authority to regulate the bar and the authority to regulate any other profession.

And try as I may -- I don't think I can find one.

There are countless other oblig -- other occupations that maybe and are being regulated by the state and while they don't avow the administration of justice, they all relate in some very significant way to public health to the public safety.

At least they involved some legitimate concern of a state.

And I see no way in which one could not find a rational basis, a rational reasons for a legislator to conclude that if it is regulating a particular occupation that it would be more effective, more efficient, if it could demand the persons who are engaged in that occupation that they respond to certain questions relating to the manner in which that business is carried out.

You always in every instance in which there is regulatory activity being carried on be able to construct a sound reasonable argument of this kind.

Justice Abe Fortas: Mr. Latto, are you going to get through the Shapiro point?

Mr. Lawrence J. Latto: I certainly hope too, because I think that the argument I make in here affect the Shapiro point as well.

I simply would like to point out that this area that I'm discussing would not involved merely occupation subject to regulation but the very vast area dealing with the use of public resources, dealing with the use of benefits of one kind or another that the Government provide to its citizens.

I'm talking about such things as at lease of government land that received the proper support payments more of its insurance, the use of public airports.

In all of this area, it is always possible to construct a rational argument for showing that the program can be administered more efficiently.

If the recipients of these benefits where to respond to questions about how the benefits are to be used?

And if the Fifth Amendment is to be construed so that it no longer apply in every instance in which there is regulation of a particular industry.

Then this would represent about his drastic or rejection of the decisions of the past two terms as could be possibly imaginable.

Now, I pass over my discussion of the weight of privilege to get to the Shapiro case because I think that what I've been saying until now affect the Shapiro doctrine as well.

In that case to recall it briefly to your mind, the Court held that wherever a statute or regulation requires keeping records.

Those records which otherwise would be considered private which might had been kept prior to the adoption of the statute are somehow converted into if not public record at least quasi-public records and that they're not protected against disclosure by the privilege against self-incrimination.

Now, this holding was preceded by a sentence in the Court's opinion which bears reading.

The Court said, “It may be assumed at the outset that there are limits which the Government cannot constitutionally exceed in requiring the keeping of records which may be inspected by the administrative agency and may be used in prosecuting statutory violations committed by the record keeper himself.

But then the Court went on to say, “No serious misgiving that these bounds have been overstep would appear to be evoked where there is -- when there is a sufficient relations between the activity sort to be regulated and the public concern.

So that the Government can constitutionally regulate or forbid the basic activity concerned and can constitutionally require the keeping of a particular records subject to inspection by the administrator.

And while that sentence is somewhat circular, its breadth is enormous and particularly in terms of the way which the commerce power and the police power of the state has been interpreted today.

But the Court has said, “It's in every instance where a business is subject to regulation.

Its records which are designated as required to be kept no longer are entitled to the privilege against self-incrimination in the face of the set of rule that the privilege applies to documents as well as to oral testimony.

Now, this -- the question really is how shall broad an en route into the privilege against self-incrimination could have been rendered by this Court.

The fact is that there is a uniform cause of constitutional adjudication from Boyd and running through Malloy and Griffin, and Miranda last term in which repeatedly, this Court has announced that the privilege against self-incrimination is to be given a broad and not a niggardly or grudging interpretation.

Justice Abe Fortas: Suppose we follow Shapiro, what's the effect on this case?

Mr. Lawrence J. Latto: Well I think, we would still have to reverse the judgment below because of the, first, the lack of clarity of the opinion of the Court of Appeals.

And second, I think because of the doctrine of Raley against Ohio which is a subsidiary point which we make in our brief which I have not planned to cover an argument.

So that there are the grounds which I think would require reversal on the decision below.

Justice William O. Douglas: Well, was there any oral testimony regarding records?

Mr. Lawrence J. Latto: There was no --

Justice William O. Douglas: Of?

Mr. Lawrence J. Latto: There was -- there were questions put unanswered but they related expressly to whether he would produce certain designated documents called for by the subpoena --

Justice William J. Brennan: Well, going back to Mr. Justice Fortas' question that is whether suppose we follow through it, would that answer the question whether the privilege in any event was available to any questions directed to the records in Shapiro?

Mr. Lawrence J. Latto: Oh, I think Shapiro itself holds and your other cases do hold that the privilege does apply to questions which are related to documents.

That issue was well settled and it is not to be reexamined here?

Justice William J. Brennan: That's not involved here?

Mr. Lawrence J. Latto: Not involved here.

Justice Abe Fortas: Actually there were worse in the question in here except the questions that the preliminary questions that would be subsumed under the Shapiro doctrine, is that --

Mr. Lawrence J. Latto: That -- that's quite a fair statement Justice Fortas.

I think it should -- this should be said, the focus of the inquiry to the extent that questions were put were upon the documents.

There was no effort to go through this charade of putting a great many questions and getting answers to each of them in terms of whether the privilege was to be invoked or not.

I think that the presiding justice and counsel for the inquiry, simply wanted to make a clear record that were questions were put and he was called to the purposes of testimony.

He would claim his privilege.

The record was clearly made and this was considered satisfactory by all concerned.

But it is certain true that the focus was upon the records and I think there is substantial basis for your reaching the question of whether Shapiro should continue to be applied?

The fact is that this case stands out as a glaring excrescence upon the line of constitutional decisions that runs from Boyd until the present time.

Justice Abe Fortas: Whether it is or not where we are at the moment is that -- if we -- unless we overrule a modified theory.

We have to affirm, is that right?

Mr. Lawrence J. Latto: No, I don't think you have to affirm --

Justice Abe Fortas: It's up to the reason that -- I mean to say except for (Inaudible) or whatever it is.

Mr. Lawrence J. Latto: Well, let me make direct --

Justice Abe Fortas: This is -- that this is about as completely confined to a documentary case as you like to define.

Mr. Lawrence J. Latto: It is pretty close to it Justice Fortas --

Justice Abe Fortas: Right.

Mr. Lawrence J. Latto: Now I think, it's fair to say that you look at the memorandum opinion of the Court of Appeals.

It does read affirm on the basis that Cohen against Hurley and on the further ground that Shapiro applies and it -- it might not be possible to say that if the Courts, the New York Court of Appeals, had understood and had recognized that Cohen v. Hurley was no longer a good law that the decision would have been the same.

But I must agree that Shapiro is presented here or almost presented.

I'll put it that way.

I think also the fact that he was assured by the presiding justice that he had a privilege with respect to the documents at the time that these questions were put and the fact that the appellate division reaffirmed the fact that he had a privilege with respect to these documents would bring the Raley against Ohio case into play.

Justice William J. Brennan: I don't follow that?

Mr. Lawrence J. Latto: If --

Well, in Raley against Ohio, the petitioners there were --

Justice William J. Brennan: Well, they were told by a chairman of an investigating committee that they have a privilege and the Court said, no, didn't because in immunity statute.

Mr. Lawrence J. Latto: Because of immunity statute.

I think --

Justice William J. Brennan: Or whether they are about this record which claims the --

Mr. Lawrence J. Latto: Oh, he was told that he had a privilege with respect to these documents.

Justice William J. Brennan: But was there not a long continuance in the proceedings and perhaps their opponents earlier cited here?

Mr. Lawrence J. Latto: Yes.

The Cohen and Hurley did --

Justice William J. Brennan: Well, I don't quite see how he was misled by the assurance in the same way that petitioner's merely would?

Mr. Lawrence J. Latto: Oh, he was relying if, Your Honor please, upon the Malloy against Hogan case.

The Cohen against Hurley case made a quite claim that there was no question of the applicability of the Fifth Amendment on that case.

But he was --

Justice William J. Brennan: Perhaps I don't follow you.

I thought you told us at the outset that initially he had been through it.

He might -- that the privilege was available.

Mr. Lawrence J. Latto: Yes.

Justice William J. Brennan: That then there was a suspension in the proceedings pending as a decision in Cohen and Hurley --

Mr. Lawrence J. Latto: Right.

Justice William J. Brennan: -- about that.

What was that suspension for?

Mr. Lawrence J. Latto: That was to determine whether the rational of the Court was acceptable.

Justice William J. Brennan: Had we decided Cohen and Hurley at the time of the suspension of the case?

Mr. Lawrence J. Latto: No.

That Cohen and Hurley was at this case that this was suspended for.

Justice William J. Brennan: That's my point and I don't quite --

Mr. Lawrence J. Latto: Oh!

Well, ask the Cohen against Hurley.

He was again assured that he have a privilege against self-incrimination relating to these documents.

Cohen and Hurley didn't touch that at all.

Following your decision he was told, “Yes, you may refuse to produce these documents by reason of the privilege which you enjoy under the Fifth Amendment to the United States Constitution.

It was only when he got to the Court of Appeals --

Justice William J. Brennan: Now, how was that assurance denied on that -- have been given --

Mr. Lawrence J. Latto: Oh, the Court of Appeals stated alternatively that he did not have any privilege at all with respect to these documents.

Justice William J. Brennan: Because of Shapiro --

Mr. Lawrence J. Latto: Because of Shapiro but this was not involved at all while the judicial inquiry was going on and there's nothing in the Appellate Division opinioned itself that relates to this.

This came up only when the Court of Appeals rendered its decisions.

There was something in briefs to that effect I should add.

But it did not come up at all until the Appellate Division had decided the case.

So that I think the situation is very comfortable to what it was in Raley against Ohio.

Justice William J. Brennan: Well, I must say Mr. Latto, I'm not so impress with that reply.

Mr. Lawrence J. Latto: Well, I'm content to have you reach and decide the Shapiro case because I do think the Court should do so.

If I may, I can't cover the Shapiro case in the moment or two that I have available.

But I'd like to point to one thing about it.

The statute involved in Shapiro required every person subject to this regulation.

To keep and make available for examination by the office of price administration records of the same kind as he has customarily kept relating to the prices which he charges for fresh fruits and vegetables.

And the bases upon which he determine maximum prices for these commodities.

I suggest that if that statute had gone on to say and every such person who fails to keep such records or whose records are inadequate shall appear before the administrator upon his demand and shall give testimony concerning the prices which he charges for fresh fruits and vegetables and the bases upon which he determine maximum prices for those commodities.

There is not a word in the Shapiro case that will indicate in any way why there should be a differentiation between the record portion of that statute which I have hypothesized and the oral portion of that.

The opinion itself --

Justice Abe Fortas: Well, you got two possible positions Mr. Latto.

I think one is that we should overrule or modify Shapiro and the other is that somehow rather the record keeping division here is different from that involved in Shapiro.

Mr. Lawrence J. Latto: I have made an argument in our brief --

Justice Abe Fortas: And the --

Mr. Lawrence J. Latto: -- that the record keeping --

Justice Abe Fortas: What bothers me is that if the privilege does apply to these records.

I was hoping you get to that obviously.

Can privilege does apply to these records since there any functions served by the requirement that the records be kept.

Let us say the records are required to be kept for the purpose of ask any whether lawyers have been doing things that they ought to do and as if when you do have a problem here.

It seems to me as to whether that particular function in the record keeping statute serves any purpose whatsoever if the privilege stands to them.

I've been bothered by this, I'm trying to --

Mr. Lawrence J. Latto: Well, Mr. Justice Fortas --

Justice Abe Fortas: -- have indicated the fruits?

Mr. Lawrence J. Latto: -- I must say, we have briefed and argued this case under this assumption that the power of the Appellate Division to regulate the practice of law is very broad indeed.

And that it does have the authority to require the keeping of records of this time.

Do not think that should carry with it automatically the abandonment of the privilege against self-incrimination unless you are prepared to overall avoid and to hold that the documentary matter is not subject to the privilege as oral testimony is.

That's would require to --

Justice Abe Fortas: Maybe there's difference between documentary matter and records that are properly required to be kept by statute regulatory records as in Shapiro?

Mr. Lawrence J. Latto: All that I suggest is that there's not a word in Shapiro that suggest what that difference might be.

And that other decision of this Court such as Albertson make it plain that there should be no significant difference between documents and oral testimony.

Justice Byron R. White: That there is no -- there's no problem of testimonial, non-testimonial as in Schmerber involved (Inaudible)?

Mr. Lawrence J. Latto: No.

I -- I do think that there was an intention to require him to testify and to make a record to that effect.

Justice Byron R. White: But the record as such would come I gather within the category testimonial rather than non-testimonial?

Mr. Lawrence J. Latto: Yes.

They're testimonial record.

I think in fact they're broader than the records.

He was required to keep by Rule 5 of the Appellate Division.

But this is another point entirely.

Chief Justice Earl Warren: Mr. Klein.

Argument of Solomon A. Klein

Mr. Solomon A. Klein: Mr. Chief Justice and may it please the Court.

I would like to say at the outset that I don't think that any lawyer should ever be required to crawl.

And this associate at the New York Court of Appeals has disbarred the petition because he refused to cooperate by relinquishing a valid Fifth Amendment privilege is with all duel deference to my adversary contrary, to the record facts as well as to the actual judgment of the New York Court of Appeals.

Now may I say, I happen to be one who agrees that the Fifth Amendment privilege against compulsory self-incrimination is one of the great landmarks of my struggle to make himself civilized.

That's Dean -- agree with those of Dean Griswold's words that have been quoted in opinions in this Court.

At the same time, I submit to Your Honors that on the facts in this case and on the judgment rendered by the highest Court of the state.

Not to your opinion written by that Appellate Division that the petitioner's position amongst to nothing more than that the Fifth Amendment privilege against compulsory self-incrimination can be stretched to a point of frustrating an equally important obligation on the part of all Government to provide equal justice under law, equal justice to the poor as well as to the rich.

And I submit to Your Honors that that is the issue in this case.

The State of New York and of the states but particularly the State of New York has for years been confronted with a difficult problem.

Namely, to try to control the evils that haven't -- as a result of experience are risen from the contingent fee negligence practice.

There was a time when New York prohibited contingent fees as well as other states in U.S. Inland and other foreign countries prohibited today.

The theory behind such prohibition is that the contingent fee introduces a speculative element which leads to or stirring up the litigation in passing the obligation, the duty that a lawyer has to a client.

It has cost what it almost a national disgrace namely the overcrowding of our calendars of federal and state courts where litigation that doesn't belong there because it is not merit.

But recognizing those evils is one important justification for permitting the contingent fee practice.

And it is the only justification for it namely, to put our courts of justice within the reach of the accident victims of which there are many in our highly industrialized mechanized society today, to put those courts of justice within the reach of those accident victims all because of financial inability even though they have a meritorious cause of action, cannot afford to pay a fixed fee for representation by competent counsel.

It is that important consideration that has induced New York and other states of our human to permit the contingent fee and to provide for necessary rules and regulations so as to prevent these evils from arising.

And what has New York done? For many years, not yesterday goes back to at least 1940, after some very bad experience starting in 1928 that established special rules that are very simple.

The first is that every attorney engaged in contingent fee negligence practice must file with the Appellate Division.

Today it's with the Judicial Conference of the State of New York, a statement of retainer in which he is to disclose the terms of this contingent fee compensation.

The name of the client and the source of the retainer and he's required to keep a special account into which he must deposit all recoveries that he obtains on behalf of his injured clients.

He is prohibited from commingling those funds.

He is prohibited from withdrawing his share before he pays that injured client.

He is required to give a closing statement to the injured client setting forth how much he recovered.

What his fee is and what the disbursement was?

And then, he is required by special rule to preserve his records of a disposition of those cases for a period of five years.

Justice Byron R. White: What were those records included in there?

Mr. Solomon A. Klein: The records would include and if Your Honor would look at the present rule, that prior rule said, “All dated memorandum with respect to the disposition thereof and that must be read in connection with the prior rule particularly Rule 4 which requires him to keep a special account and to deposit all recoveries in that special account.

And Your Honor will find that the rule today invoke the first and the second judicial deposits make it unmistakably clear that it includes canceled checks, vouchers, things of that kind.

Now let me say these things, Your Honors.

Justice William O. Douglas: And where there is a case files too?

Mr. Solomon A. Klein: He should pres -- well, case files should also preserve.

Yes, because the case files would contain for example, copies of the closing statements that he gave to the client or may contain other information.

It should preserve them for a period of five years.

Under New York Court of Appeals, rule in this case that the records required to be checked under Rule 5 come within the required records doctrine as enunciated by this Court in the Shapiro case and may I say, we all have the highest regard for the great constitutional decision in Boyd against United States.

One of the greatest, giving the most broad, liberal interpretation to both the Fourth and Fifth Amendments and in that very case as I indicate in my brief, I believe.

Unfortunately, the footnote I think.

Mr. Justice Bradley after giving the broadest interpretation to the Fourth and Fifth Amendments specifically for it says, that that does not apply to records required to be kept by law.

I will return to that in that moment Your Honors.

I'm watching my time.

Now, I want to emphasize that one of the problems of New York and other states is the danger that the hospital attendant, the policeman, the insurance agent, the boss of the Waterfront, the insurance company adjuster, and others may share at the danger in the recoveries made on behalf of injured clients who are laymen sufferings from severe injuries and do not know what their rights are.

That is the danger we were to provide against in addition to destroy both federal as well as state courts by plugging them with unjustifiable causes of action.

Now how can we do it?

By adding this requirement that he preserved those records, we then have the necessary information whether or not for example.

He has deposited the funds are recovered on behalf on his clients in a special account or they speculated to those funds for his personal profit and then even though he pays the client, keeps to properly made, or if he should lose in his speculation, the client suffers.

There is no other source that we content to determine whether or not he had abided by the special rules particularly, the deposit you see may of the monies he recovered on behalf of his clients.

Chief Justice Earl Warren: Mr. Klein, I want to ask this. Does he or there is a subpoena Court extensive with the revisions of the order about keeping financial records or does the subpoena go beyond --

Mr. Solomon A. Klein: I will say my judgment, it goes beyond.

In several instances, we are -- let me put it this way.

There's room for reasonable argument that some of the items called for in this appeal.

It might perhaps they argued do not come within the require records of I'm talking here.

Chief Justice Earl Warren: Yes.

Mr. Solomon A. Klein: But let me emphasize Your Honor --

Chief Justice Earl Warren: Would you mind relating those to us.

Tell us what those are?

Mr. Solomon A. Klein: Oh, those are I would say do not come.

Chief Justice Earl Warren: Do not come within the --

Mr. Solomon A. Klein: Or I could give it the other way.

Now, I submit sir --

Chief Justice Earl Warren: What page are you on?

Mr. Solomon A. Klein: At page 1 of the records --

Chief Justice Earl Warren: Page 1 of the record?

Mr. Solomon A. Klein: -- of the transcript, the printed transcript of the record, cash disbursements book.

Now Your Honors, payments too are --

Chief Justice Earl Warren: Now, cash disbursements --

Mr. Solomon A. Klein: I would say do come within the records.

Chief Justice Earl Warren: Yes.

Now, I thought you're going to tell us that those didn't come within the statute?

Mr. Solomon A. Klein: Well, I would exclude and I have --

Chief Justice Earl Warren: I beg your pardon?

Mr. Solomon A. Klein: I would exclude as not coming within the statute.

Chief Justice Earl Warren: Yes.

Mr. Solomon A. Klein: The federal and state tax returns for example.

In fact Your Honors, may I say --

Chief Justice Earl Warren: Yes.

Mr. Solomon A. Klein: -- that the past two years that I have been the counsel to the judicial inquiry must have been expressly, I limit, I omit calling of federal state tax returns because I do not deem it to be within my province to become an adjunct of either the federal internal revenue or the state tax.

Chief Justice Earl Warren: And how about the worksheets of the work --

Mr. Solomon A. Klein: Worksheets --

Chief Justice Earl Warren: That's without?

Mr. Solomon A. Klein: That's right.

Justice Hugo L. Black: You mean all of items filed Mr. Klein, would be out?

Mr. Solomon A. Klein: Item 12.

Copy the federal state income tax returns, accountant's worksheets, and all other -- I do not include as declare.

Justice Hugo L. Black: They go the outside of the rule?

Mr. Solomon A. Klein: Yes.

That's right.

Justice Hugo L. Black: No.

Mr. Solomon A. Klein: But may I ask.

That the others are all related through the essential enforcement of the special rules.

These payments that other lawyers have made to runners, hospital attendants, policemen and others are generally charged as necessary disbursements which come out of the claimed share.

It is that that we would like to find out whether the clients monies are being used for alleged necessary disbursements when in fact may be a pay off to an insurance adjustment.

Justice William O. Douglas: Well, that number 10, is that in the record?

Mr. Solomon A. Klein: Number 10.

Justice William O. Douglas: (Inaudible)

Mr. Solomon A. Klein: Yes.

Justice William O. Douglas: That's only record --

Mr. Solomon A. Klein: Yes, records of all those made from financial institutions and others open and close as that does have a relevancy in this sense.

Whether he is borrowing money in order to finance the contingent fee litigation, well, I do not think it's of any grave importance as to those records.

Justice Abe Fortas: Now with the question, I think that anyway I'm interest in is which of these records is and which is not required to be kept by this specific statute that is said statute --

Mr. Solomon A. Klein: Well, the specific statute is in broad language and as it reached today and may I add that in 1900, in July 1960 which was before the petitioner in this case ultimately claimed Fifth Amendment privilege and I will -- I must come to that.

The New York -- the first department, television and second departments, expressly provide that it shall include all memoranda data --

Justice John M. Harlan: It's a Court rule?

Mr. Solomon A. Klein: Yes, the -- and there pursuant to Section 90 of the Judiciary Law and are equivalent to statutes include cash and checks, vouchers, all financial data of that kind that would be related to the important questions as to what he did with these trust matters.

Now, I want to emphasize this in view of Your Honor's question.

When the petitioner ultimately asserted his refusals, each item in the subpoena this is taken.

He was asked about separately.

He refused to produced any want so that if I assume from the second discussion that some of them might not be included within the required records doctrine, the important finding, I won't anything but I --

Justice William J. Brennan: What was the ground?

Mr. Solomon A. Klein: What was that?

Justice William J. Brennan: What was the ground?

Mr. Solomon A. Klein: The ground was claimed of Constitution of Privilege Fifth Amendment.

And may I add that in the course, he also announced and I won't answer any question in relation thereto.

A blanket would use to give any and all testimonies.

And when Your Honors, they have already looked at it.

But when you do, the amended (Inaudible) of the New York Court of Appeals makes that unmistakably clear that the two grounds upon which they urged that he had been denied his constitutional rights, well, one that he had a right under the Fifth Amendment to refuse to produce anyone of the records and that the had a right to refuse to answer and I'm quoting any question which might be asked.

Now may I ask, --

Justice Hugo L. Black: Is there any immunity have been -- was there any immunity promised?

Mr. Solomon A. Klein: No.

There is no immunity was promised.

Justice Hugo L. Black: No immunity in a plain Fifth Amendment of judgment.

Mr. Solomon A. Klein: That's right.

Justice Hugo L. Black: What -- what would be the crime if they?

Mr. Solomon A. Klein: What would be the crimes?

Justice Hugo L. Black: That he might apprehend at which lead to certainty --

Mr. Solomon A. Klein: Well, there's a possible belief he paid the lay referral money for the foreign cases to it.

He was thereby being aiding in embezzlement a layman in the practice of law which is --

Justice Hugo L. Black: That's fine.

Mr. Solomon A. Klein: -- criminal under New York inmate.

As certainly it protects, he converted the client's recoveries for his personal used that would be lost in.

So that those are only -- was the two possibilities.

Chief Justice Earl Warren: How about taxes?

Mr. Solomon A. Klein: Yes, there's a possibility, in fact, in the record he said, that there might be tax problems.

Chief Justice Earl Warren: He mentioned that, didn't he?

Mr. Solomon A. Klein: Yes, he did.

At one time in the record, he said that may be tax problems.

But my point is this --

Justice Abe Fortas: Is that the man -- was this the man for production that was sustained in another action in the New York courts?

Did petitioner challenged this --

Mr. Solomon A. Klein: I'm glad Your Honor you asked that question.

This period -- the period of time covered in this.

I think it is 1958, June of 1958 until January 1962, that's the third at that time.

And at that time the lawyer didn't tell me have not yet been decided.

When he first appeared and his very first appearance before Mr. Justice Arkwright in response to the subpoena this was taken.

He was asked by Justice Arkwright, “Where are the records you are required to keep under Rule IV?”

I mentioned this because they said the first time they heard anything about the required document in the Court of Appeals.

In June 1958 of the day of his first appearance, “Where are the records that you are required to keep under Rule IV?”

Petitioner said, “Sir, the courts have weigh round the records.”

“You are required to keep under the Rule 4 which is the rule requiring you have set up a special account.”

Mr. Spevack: “They are in my check book.

I refuse to produce these checkbooks or as canceled checks.”

And then he had taken the journal.

And I come to Mr. Justice Fortas' question.

It was told only warrant of the records.

He then instituted a separate proceeding to quash this thing raising constitutional grounds and the case came up to here.

Up to this Court, they are always denied certiorari.

Justice Abe Fortas: Was that the subpoena -- the demand but now appears on page 1 of defendant record.

Mr. Solomon A. Klein: That is right, sir.

It is that very subpoena that he attack by independent proceeding and went through the state court is not -- the application to quash was denied.

Well, he filed a petition for certiorari before this Court and it was denied and then he came back through the judicial inquire and then for the first time then he asserted not to comment on that.

He asserted state privilege against self-incrimination and due process, fundamental premise requirement of the Fourteenth Amendment.

Justice Potter Stewart: And at that time this still was before Malloy?

Mr. Solomon A. Klein: Yes, and before Cohen v. Hurley.

And at that time, Mr. Justice Baker the presiding Justice did express the opinions likely to having like to claim the privilege.

But this is serious question and we're having a test case coming up so we will give you an adjournment.

We'll wait till the outcome of the test case and then we'll give you an opportunity to come by.

Now the test case is Cohen v. Hurley and I want to emphasize this point because I have kept in right in saying the opinion of Mr. Justice Black, Mr. Justice Douglas and I believe Mr. Justice Brennan and there's one important point as I see it.

Cohen v. Hurley did not deal where there were five records doctrine at all and as shown by the majority opinion of Mr. Justice Harlan, the Cohen case turned on points refusing to answer some 60 questions.

The answers to which he claimed would tend to incriminate and I check the record.

Cohen didn't refuse as or any at all questions.

On the contrary he answered some but a certain privilege only as to those where the answer might tend to incriminate.

And Mr. Justice Black in the dissenting opinion, in Footnote 3 pointed out, quite clearly that because the Cohen case “hinged” I'm quoting when I use the word “hinged”, on the refusal of Mr. Cohen to answer questions that had been asked.

Mr. Justice Black put the point of view that his constitutional rights had been violated.

Now, we have just the opposite kind of case here.

I say the dominant controlling fact from the first hearing on June 12, 1958 until the last hearing in January 1962.

The only thing that kept the man, all we want are the records.

Chief Justice Earl Warren: Mr. Cohen -- Mr. Klein, may I ask you this about that subpoena.

Mr. Solomon A. Klein: Yes.

Chief Justice Earl Warren: That did -- did not that subpoena command him to bring to the Court every financial transaction that he might have had in those five years without regard to whether it had anything to do with this class of business or not?

Mr. Solomon A. Klein: Oh, no.

Chief Justice Earl Warren: Well, I'm --

Mr. Solomon A. Klein: But because the subpoena at the very top says, “In connection with your business as an attorney” and --

Chief Justice Earl Warren: Well, as an attorney, yes.

But I mean without regard to whether it had any application to these contingent contacts.

Mr. Solomon A. Klein: Oh!

On the contrary, I would like to put it this way.

The petitioner here pursuant to the special rules filed with the Appellate Division in a period of seven and a half years, 1,062 returning statements at over a 140 cases a year.

It was in connection with that business as a single practitioner that we -- he was served with this subpoena to produce records pertaining to his business as an attorney.

That's the only business he has.

Chief Justice Earl Warren: How do we know that's the only financial business that he had as an attorney and how did you know that it was the only business he had?

Mr. Solomon A. Klein: Well, I should think that anyone hearing the (Inaudible) 40 cases a year is pretty well occupied.

Chief Justice Earl Warren: Well, pretty well occupied, yes.

But a man might have other financial institute --

Mr. Solomon A. Klein: Well --

Chief Justice Earl Warren: -- other financial arrangements and you demanded every financial transaction that he had.

Mr. Solomon A. Klein: Well, he could very easily Your Honor.

Say, I produce this which relate to my business as an attorney and do not produce those that are purely private.

May I add that it is in the record --

Chief Justice Earl Warren: I thought -- I thought he was charged with not producing those records which were within the rules?

Mr. Solomon A. Klein: He was charged with refusal to produce records he was required to keep it.

Chief Justice Earl Warren: Yes.

Mr. Solomon A. Klein: He was barred because of that ground.

Chief Justice Earl Warren: Yes.

And are you not bound to all by the scope of the subpoena?

Mr. Solomon A. Klein: Well, may I call Your Honor's attention to his statement, the petitioner's statement, of the record at page 31 to 32, when he first claimed privilege and the Court said, “You better state it again.

The subpoena calls for the production of the books.

They have not been produced.”

The witness: “Whatever records, Your Honor, that were available to me, I could physically if I have obtained the time.

Get them together and --

Justice Tom C. Clark: Mr. Klein, where you reading from?

Mr. Solomon A. Klein: At record pages 31-32.

Chief Justice Earl Warren: Page?

Mr. Solomon A. Klein: In this record.

Justice Potter Stewart: Just follow at page 31.

Mr. Solomon A. Klein: At the bottom of page --

Justice Hugo L. Black: Oh, bottom of page 31.

Justice Potter Stewart: Towards this -- towards the bottom of the page.

Below the sentence --

Mr. Solomon A. Klein: “I could them together on the package and in bundle and bring them here along side to me, therefore, if I may say the matter of producing production of the records are all having them here physically is not an issue.”

Court said, “Alright, bring that up now.”

And his attorney says, “Thank you.”

And the witness said, “That the only matter in issue is the refusal to turn them over.

It is quite clear as I see it that the position of the petitioner was that he won't produce anyone of the records.”

Justice Abe Fortas: Yes, but the demand was for records beyond the records that he was required to keep that --

Mr. Solomon A. Klein: Well, I'm not saying here.

Although, I express the opinion --

Justice Abe Fortas: Sir?

Mr. Solomon A. Klein: -- perhaps I will express the opinion on broad side and no right to lose some.

The New York Court of Appeals said, didn't distinguish, they make a distinction as I drew among with regard.

The New York Court of Appeals speaking for the State of New York say, these are the required records.

I merely indicated of what my practice is since --

Justice Abe Fortas: Then I suppose that if he produced just the records that were required -- that he was required to keep that that might very well constitute a waiver as to other records.

Mr. Solomon A. Klein: Well, no -- no it wouldn't.

Justice Abe Fortas: Why not?

Mr. Solomon A. Klein: Because if the other records -- they have not to come within the require record is not true.

He would have the privilege as to that, but he has no privilege.

Justice Abe Fortas: I'm not sure.

But are you sure about that?

That --

Mr. Solomon A. Klein: I feel --

Justice Abe Fortas: You say that the common understanding below is that if you produce some of the records relating to a given subject matter that -- that's a waiver of the privilege as to the balance of the record relating to the subject matter.

Am I wrong about that?

Mr. Solomon A. Klein: I -- I wouldn't agree with that.

It's an argument that could be made.

But I would disagree with this reason.

But under the doctrine of Shapiro against U.S., he has a no Fifth Amendment privilege as to records that are required to be kept.

He does have Fifth Amendment privilege as to records, he is not required and also as to the refuse to answer -- give all testimony that may tend to incriminate.

Justice Abe Fortas: That's very nice.

Thank you.

Mr. Solomon A. Klein: I hope I answer that.

Your Honors, we -- in the performance of our duties.

We don't want to deprive anyone lawyer or not lawyer of his constitutional rights but I say that a lawyer is entitled to the same constitutional rights as Mr. Malloy the gambler and Malloy against Hogan, and as Mr. Shapiro, the wholesale fruit dealer in the Shapiro case.

But he is not entitled to a greater rights and that is precisely the effect or the position taken.

Justice William J. Brennan: But I suppose Mr. Klein, these were again the same situation that Cohen and Hurley if that is, suppose we have here only a refuse to the answers-question on the ground of the privilege.

That's all we have left.

Since Malloy would you be taken the position that he could be disbarred for a refusal to --

Mr. Solomon A. Klein: My position would be that he could not.

Justice William J. Brennan: Could not?

In other words --

Mr. Solomon A. Klein: And I may say, I think that that is the position of the New York Court of Appeals.

Justice William J. Brennan: Since Malloy?

Mr. Solomon A. Klein: Since Malloy.

Justice William J. Brennan: So what really what this case look down do you suggest.

It's simply that this involved only records therefore Shapiro covers it like a blanket.

Mr. Solomon A. Klein: Yes.

Justice William J. Brennan: And we ought not to reconsider as true.

Mr. Solomon A. Klein: That is correct.

Now, I said --

Justice Hugo L. Black: What page does the Court of Appeals (Inaudible)?

Mr. Solomon A. Klein: Oh!

The Court of Appeals did say that Cohen v. Hurley is overruled.

What the Court of Appeals decided in this case, may I put it this way.

The Court of Appeals affirmed upon the party of Cohen v. Hurley and upon the further ground that a demand not the oral testimony but for records required to be kept by law do not come within the Fifth Amendment privilege.

Now on the facts in this case, coupled with what the Court of Appeals said, here is the holding in this case.

Mainly, that it is not a denial of due process of law or fundamental fairness which is Cohen v. Hurley, to disbar an attorney who refuses to produce unprivileged records.

That is the holding in this case whether or not as a result of the decision in Malloy v. Hogan.

The Cohen v. Hurley case dealing solely with a refusal to answer question that my time to incriminate is overruled I cannot not assume that authority.

I've answered Mr. Justice Brennan on this to what my own point of view is because I happen to believe that no lawyr bunch of case that make him can be deprive of a constitutional right and merely because are all required to relinquish.

Put it that way because that's the way they brief repeats it to relinquish a constitutional right in order to hold on to a job or to be a lawyer.

That's my personal point of view but I do not speak for the Court of Appeals.

In this case, I submit the New York Court of Appeals fully aware of this Court's mandate under Malloy v. Hogan that we must follow the federal standard did precisely that.

And now, my learned adversary is asking to this Court really to say to the New York Court of Appeals, “Mr. Court of Appeals, you had no business following our standard as enunciated in Shapiro and other cases.

There are others, the Fair Labor Standards Act is a good one where federal statutes are involved.”

I submit sir, I would add this.

This emphasis on the language selected from the opinion of the Appellate Division is on warrant and for this reason.

First of all, its no -- I don't mean any disrespect to this Court for me to say that Your Honors do not seek to revise the opinions of an intermediate cause of the states.

It is only to correct judgments involving federal questions rendered by the highest court of the State of New York.

And I submit sirs, that on the judgment here and on the particular facts of this case.

The constitutional rights of the petitioner or no way violated.

And I submit that is evident to be held otherwise then not only New York but every state in the union would simply be frustrated in any reasonable efforts to control the abuses in contingent fee negligence practice.

Justice John M. Harlan: Well, if you state (Inaudible)?

Mr. Solomon A. Klein: The rational as I understand is this, that where anyone lawyer or anyone else engages in any activity which is subject to Government regulation in there.

Government has a strong social-economic interest that in order to enforce those regulations.

Records must be kept then such records do not come within the reach of the Fifth Amendment privilege.

Justice John M. Harlan: (Inaudible)

Mr. Solomon A. Klein: Well, I wouldn't say it is all the written.

I would rather put it at the -- there's never intended that the Fifth Amendment should even reach that type of situation.

I don't like -- I am not -- I don't think it cuts down the Fifth Amendment.

It's that the Fifth Amendment doesn't reach it.

Justice John M. Harlan: (Inaudible)

Mr. Solomon A. Klein: That -- well that is the effect of it.

I --

Justice John M. Harlan: (Inaudible)

Mr. Solomon A. Klein: That is right.

And I suggest sirs, that that is the thought expressed by Mr. Justice Bradley.

It was carried on in the Fair Labor Standards Act where the federal government steps in, in order to protect minimum wages, maximum allowance, requiring those engagements to state commerce, the employers to keep records as to the wages paid in hours work in order to protect the economy our country.

And this Court, the case is cited in the Shapiro case, United States against Darby, unanimously upheld that kind of a valid regulation.

And surely, even my adversary next on contention that the special rules regulating the (Inaudible) of attorneys are invalid.

One further thought subject to any further questions.

Here is a lawyer who pursuant to the rules filed statements of retainer, gave information, profited by the permission granted to engage in extensive contingent fee negligence practice and after he did so, he was called upon to account.

He then says, “I won't”.

And he won't even answer any question.

“I'm not aware of any federal case.

I never said that any witnesses distinguish from the defendant; reference is made to Griffin against California as distinguished from the defendant that any witness called in inquiry where no charge is made against him and interpose a blanket of refusal to answer any questions at all.

As far as I'm aware about federal and state law agreed that he has no such right.

I submit sir that the judgment should be upheld.

Featured:

Sperry v. Florida - Oral Argument

Tue, 25 Sep 2012 22:34:46 +0000

Case:

Sperry v. Florida

Media File:

322_19630325-argument

Related Transcript:

322_19630325-argument

Transcript:

Argument of Carlisle M. Moore

Chief Justice Earl Warren: -- versus State of Florida on the relationship of the Florida Bar.

Mr. Moore.

Mr. Carlisle M. Moore: Mr. Chief Justice, and may it please the Court.

In this case, petitioner who is a nonlawyer has been duly authorized by the Commissioner of Patents pursuant to federal statutes and rules to advise and represent applicants before the Patent Office in the preparation and prosecution of patent applications.

The petitioner resides in Florida and there carries on these activities.

The question presented here is whether the State of Florida has the power to enjoin petitioner from these activities merely because he is not a member of the Florida Bar, and the Court has forbidden such activities, and we feel that the Court was incorrect in the following specific portions of the injunction, wherein the -- enjoined the petitioner from rendering opinions as to patentability of inventions, from holding himself out in Florida as qualified to prepare and prosecute applications for letters patents, and amendments thereto, and from actually preparing in prosecution applications -- prosecuting applications for letters patents, and amendments thereto in Florida.

Justice Arthur J. Goldberg: It's your argument -- you're (Inaudible)

Mr. Carlisle M. Moore: He can theoretically call himself a patent attorney because he was admitted to practice before the Patent Office prior to 1938 at which time even though he was a nonlawyer, he was entitled to call himself a patent attorney.

In 1938, the rules were changed so that nonlawyers thereafter registered with the Patent Office couldn't but there is a Grandfather clause which permitted those admitted before to still continue calling the same thing.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Carlisle M. Moore: Well, he can't call himself a patent lawyer.

A patent lawyer would be a term which he is not permitted to use.

He is not a lawyer.

Now --

Justice Arthur J. Goldberg: How can he be described?

Mr. Carlisle M. Moore: He can describe himself as a patent agent or as -- as a patent attorney.

In this case, actually he has ceased to use the name patent attorney, although under the federal rules, he is permitted to do so.

This perhaps might be one of the engraftments on federal rules which might be permissible so that there wouldn't be any mistake as to what capacity he's operating under.

Now, he has voluntarily stopped using the term patent attorney.

Justice Arthur J. Goldberg: That issue is not before us.

Mr. Carlisle M. Moore: That issue is not before us.

Justice Potter Stewart: Or whether an attorney means agent, doesn't it, it doesn't necessarily mean lawyer although a good many people think.

Mr. Carlisle M. Moore: Well, my understanding is that originally attorney meant attorney in fact, and then as distinguished from attorney at law --

Justice Potter Stewart: Right.

Mr. Carlisle M. Moore: And that I think that the normal interpretation of the word today, an attorney means an attorney at law.

I think that's the --

Justice Potter Stewart: If I give you a power of attorney because you're my attorney, you're not necessarily a lawyer although you have to be one.

Mr. Carlisle M. Moore: Well, that would be giving me an attorney -- power of attorney in fact.

Justice Potter Stewart: That's correct.

Mr. Carlisle M. Moore: And I think that usually they qualify it to be an attorney of fact rather than a straight attorney which I think to the general public which he's really most interested in what they are called.

To general public, I think that a --

Justice Potter Stewart: An attorney has come to mean a lawyer.

Mr. Carlisle M. Moore: -- person who says an attorney means he's an attorney of law.

Justice Potter Stewart: Although the dictionary definition I'm sure without having looked it up which showed at least one meaning of the word, it's simply “agent.”

Mr. Carlisle M. Moore: Well, I think that is correct but I don't think that's the -- what the public necessarily think.

Justice John M. Harlan: Does this record show one way or the other whether Mr. Sperry ever attempted to take the Bar -- the Florida Bar examination?

Mr. Carlisle M. Moore: No, the record doesn't --

Justice John M. Harlan: Or any bar examination?

Mr. Carlisle M. Moore: The record does not show that and I myself do not know.

Chief Justice Earl Warren: What does the patent bureau call them now since they no longer called them attorneys?

Mr. Carlisle M. Moore: Well, there are two classifications, 'patent attorneys' and patent agents.

Chief Justice Earl Warren: Patent agents.

Mr. Carlisle M. Moore: The members who are registered with the Commissioner of Patents who are attorneys are entered on the list of 'patent attorneys'.

Now those who are not are entered on a list called patent agents.

Chief Justice Earl Warren: I see.

Justice William O. Douglas: And the matters that the Court enjoined are listed on pages 67 and 68 of the record.

Mr. Carlisle M. Moore: Yes, correct.

Justice William O. Douglas: Which of those do you object to?

Mr. Carlisle M. Moore: Well, we object Your Honor to --

Justice William O. Douglas: You don't object to the first using the term 'patent attorneys' do you?

Mr. Carlisle M. Moore: No, we don't object to that.

Justice William O. Douglas: Do you object to the second rendering legal opinions?

Mr. Carlisle M. Moore: We object to the portion wherein it says including opinions as to patentability.

We maintain that this is a necessary function in advising an inventor as to the preparation of an application.

We object to number four and number five as well.

Chief Justice Earl Warren: You don't object to three?

Mr. Carlisle M. Moore: Well, three is -- as broadly stated preparing drafting and construing legal documents, he is not a lawyer.

If this, however, was intended to include activities before the Patent Office, then we would object to it.

Chief Justice Earl Warren: Do you take that this is broad enough to prevent him from drafting an application for a patent.

Mr. Carlisle M. Moore: Well, of course that is particularly covered in five.

Chief Justice Earl Warren: In five.

Mr. Carlisle M. Moore: And insofar as any activities which are restricted to state lawyers, we don't feel that he has any right to pursue those.

Chief Justice Earl Warren: Yes.

Justice John M. Harlan: Do you say you objected to three?

Mr. Carlisle M. Moore: No, Your Honor, three as stated strictly the practice of law which would we -- within the purview of the State.

Justice John M. Harlan: It depends what the documents are.

Mr. Carlisle M. Moore: Well, it does.

It -- you have to find out what documents were intended, however, what we are particularly concerned with are four and five having to do with the patent applications.

Chief Justice Earl Warren: But is -- is the patent application a legal document?

Mr. Carlisle M. Moore: Well, there is an answer -- our question would have to be answered yes in the sense that the patent application as it has been held by this Court is really a contract between the inventor and the Government.

Now this is a contract, however, that can be prepared for the inventor only by those whom the Commissioner of Patents has decided, has sufficiently qualified both legally and technically to prepare and prosecute such a contract.

It is a contract which cannot be prepared on behalf of an inventor by any regular member of a State Bar.

Chief Justice Earl Warren: Would the preparation of an appeal to the Court of Patents – Customs and Patent Appeals be a legal document?

Mr. Carlisle M. Moore: Well, that would not be practiced before the Patent Office.

Yes, that would be a legal document.

Chief Justice Earl Warren: It would be.

Mr. Carlisle M. Moore: But we aren't contending that practice --

Chief Justice Earl Warren: No, no, I'm not -- I'm not questioning what you're contending.

I'm just trying to see whether this number three preparing, drafting, and construing legal documents would prevent you from doing certain things.

Mr. Carlisle M. Moore: Yes, I would say that there is no right in a patent agent to appeal to a court without becoming a member of the Bar of that court.

Chief Justice Earl Warren: The Court of Patent Appeals?

Mr. Carlisle M. Moore: Court of -- Customs and Patent Appeals, correct.

Chief Justice Earl Warren: You concede that there must be a lawyer to do that?

Mr. Carlisle M. Moore: Oh, yes, Your Honor.

Chief Justice Earl Warren: I see.

Very well.

Mr. Carlisle M. Moore: Now, we contend that practice before the Patent Office consist of preparing a patent application after consulting with the inventor as to the scope of the invention then filing that patent application with the Patent Office, and then prosecuting it through the Patent Office until there is a final determination by the Patent Office, all of these to be performed within the rules and regulations of the Patent Office.

Now, once a patent is issued then any advice pertaining to the patent would not be practiced before the Patent Office.

Preparing of license agreements under patents is not something which is within the jurisdiction of the Patent Office.

That would not be --

Justice Byron R. White: (Inaudible)

Mr. Carlisle M. Moore: I would say that matters relating to infringement are matters of law relating to issued patents over which the Patent Office has no jurisdiction.

So therefore, it would not be practiced before the Patent Office.

That would be reserved to a lawyer.

Justice Byron R. White: (Inaudible)

Mr. Carlisle M. Moore: By the rules of the Patent Office, agents and attorneys were treated alike within the conduct of interference proceedings.

Justice Byron R. White: Where the finding of possible facts (Inaudible)

Mr. Carlisle M. Moore: Well, the advise as to --

Justice Byron R. White: (Inaudible)

Mr. Carlisle M. Moore: No, that's -- that would be another problem.

First of all, if an inventor comes to a patent practitioner being an attorney or agent, his first problem is, is this an invention which calls for making a preliminary search back here in Washington in the Patent Office.

After the --

Justice Byron R. White: (Inaudible)

Mr. Carlisle M. Moore: That is correct.

That is --

Justice Byron R. White: (Inaudible)

Mr. Carlisle M. Moore: He is rendering opinions as to whether the particular invention concerned is new and inventive in relation to the disclosures of those other patents.

Now the patents are prior -- part of the prior art which can invalidate the patent, but so are magazine articles, publications which aren't legal documents.

As far as determining patentability as to whether the following application, all that you are concerned with is whether the particular invention now is different from what has been done in the past.

You aren't concerned --

Justice Byron R. White: (Inaudible)

Mr. Carlisle M. Moore: Well, it's very conceivable that he might.

Justice Byron R. White: (Inaudible)

Mr. Carlisle M. Moore: Well, I think that when you get to matters like that, that that is beyond the rights of a patent agent but --

Justice Byron R. White: He required a patent (Inaudible)

Mr. Carlisle M. Moore: You would have to --

Justice Byron R. White: (Inaudible)

Mr. Carlisle M. Moore: I would say so.

Justice Byron R. White: (Inaudible)

Mr. Carlisle M. Moore: Yes.

Justice William J. Brennan: (Inaudible)

Mr. Carlisle M. Moore: An interference proceeding is a proceeding within the Patent Office to determine which of two applicants is actually the first inventor.

Justice William J. Brennan: How was it initiated?

Mr. Carlisle M. Moore: It's initiated by -- usually by the Patent Office because there are two conflicting applications in the Patent Office which are claiming the same subject matter.

Unknown Speaker: (Inaudible)

Mr. Carlisle M. Moore: It could be initiated by the fact of a patent issuing which was then is a public document.

Someone else who has the same invention either already on -- in an application in the Patent Office are -- who then files an application claiming the same subject matter in order to setup an interference.

Justice William J. Brennan: (Inaudible)

Mr. Carlisle M. Moore: It involves -- well, pleadings of a sort, yes, within the Patent Office.

Justice William J. Brennan: In preparation of introduction of evidence at first.

Mr. Carlisle M. Moore: It concerns the taking of testimony by deposition.

Justice William J. Brennan: By deposition.

Mr. Carlisle M. Moore: By deposition.

Justice William J. Brennan: And the agent or would your client do this?

Mr. Carlisle M. Moore: The rules granting that privilege.

Justice William J. Brennan: Any of the -- any of the --

Justice Hugo L. Black: The rules say what the --

Mr. Carlisle M. Moore: The rules throughout the -- the rules of practice throughout refer to attorney or agent in all instances that I can find wherein it determines what -- what can be done.

Chief Justice Earl Warren: Well, you can't take depositions, can you?

Mr. Carlisle M. Moore: Yes, as I was trying to find a particular place here as --

Justice William J. Brennan: Well, isn't all -- aren't all the proceedings by mail with the Patent Office.

Mr. Carlisle M. Moore: The bulk of the proceedings are by mail, all conducts with the Patent Office is by writing otherwise depositions are reduced to writing.

Justice Byron R. White: But anything -- any kind of proceedings that goes on in the Patent Office an agent who is authorized to inform the Patent Office as well as an attorney.

Mr. Carlisle M. Moore: Under the rules, he is, yes.

Justice John M. Harlan: Is most -- are there any figures that indicate how much of the business in the Patent Office handled by people who are registered attorneys as distinguished in patent agents.

Mr. Carlisle M. Moore: No, I know of no such statistics along that line, all I know are the statistics which we obtained from the Patent Office as to the numbers of practitioners in the various groups.

Justice John M. Harlan: Was to whether the business tends to flow on one direction or the other, it has no trend or you don't?

Mr. Carlisle M. Moore: I do not know, Your Honor.

Justice Hugo L. Black: Would you mind stating precisely as you can -- precisely what you think an agent can do like this sort of the staging in the practice of law in giving legal opinions and so forth, precisely what?

Mr. Carlisle M. Moore: Precisely, I think that the patent agent can advise and assist inventors in the preparation and prosecution of applications before the Patent Office.

And this, I believe includes by necessity, the right to advise a client as to whether a patent application should be filed, that is whether it's patentable.

Justice Hugo L. Black: And you say of course, that if he can do that as an agent, he can do it in the District of Columbia or he can do it in any state.

Mr. Carlisle M. Moore: Yes, Your Honor because 'patent attorneys' and agents reside all over the country as to inventors.

It's necessary for them -- for the practitioner to meet with the inventor to discuss the technical problems involved in any invention.

Now the Congress has, I'm sure recognized the fact that there are patent agents and practitioners all throughout the country.

The Patent Office, I believe, certainly realizes -- publishes a list of practitioners by state.

Justice Hugo L. Black: Now, most of the agents is here in Washington provide for practice and their agencies of people who are not attorneys.

Mr. Carlisle M. Moore: I'm not sure I understand your question.

Justice Hugo L. Black: Well, there are other agencies in the City of Washington besides the Patent Office and many of them, people who are there all the time and file applications of various kinds and types.

Lawyers do it sometimes and other people do it sometimes.

Are there any regulations with reference to the other agencies that you know of in this connection besides the Patent Office?

Justice William O. Douglas: How about the customs, for example?

Justice Hugo L. Black: I'm not that familiar with the -- that branch, however, it is my understanding that the Treasury Department can qualify or register qualified attorneys and laymen to represent people before the Customs Court.

Justice William O. Douglas: Will they do the same thing in the Interstate Commerce Commission?

Justice Hugo L. Black: I believe they do, Your Honor.

There are a number --

Justice William O. Douglas: Probably so, do they not, don't they have agents all over the country --

Mr. Carlisle M. Moore: Yes, they do.

Chief Justice Earl Warren: -- who are qualified to act before the Interstate Commerce Commission?

Mr. Carlisle M. Moore: Yes, and from the amicus brief, I understand that about a third of the Interstate Commerce Commission practitioners are not attorneys.

Justice William O. Douglas: How about the CPAs in the Treasury and Tax Courts?

Mr. Carlisle M. Moore: Well there again, the Treasury before the Tax Court has provisions wherein it can set the standards of who appears before the agency and it permits attorneys are qualified nonattorneys to represent people before that agency.

Justice Hugo L. Black: Is this jurisdiction of dispute something like a dispute that they frequently have over -- making abstracts of title?

I've been familiar with some of those.

Mr. Carlisle M. Moore: Well, I'm -- I'm afraid I'm not familiar with the problems involving the object of titles.

Justice Hugo L. Black: Well, I wouldn't have (Voice Overlap) to this title, lawyers sometimes get an idea that nobody should make abstract for a lawyer.

Mr. Carlisle M. Moore: Oh, I --

Justice Hugo L. Black: I think they have laws to that effect.

Mr. Carlisle M. Moore: Well, yes, and actually you would have really somewhat the same problem here that that's a matter of policing of activities which are carried on by professions which sometime overstep their rights and privileges and get into the unauthorized practice of law.

That of course, is improper.

Justice Hugo L. Black: That's also is --

Mr. Carlisle M. Moore: That could happen here.

Justice Hugo L. Black: It's also analogous, I assume, to the controversy that come over banks.

Mr. Carlisle M. Moore: Yes, Your Honor.

Justice Hugo L. Black: Acting as guardians and so forth, and to what extent they can do one thing and not do another.

Mr. Carlisle M. Moore: That's correct and even though there maybe problems, there's no reason to abolish those institutions.

Justice John M. Harlan: You're not suggesting, as I understand it in your argument -- (Inaudible) your argument that under Florida law, what your client did, constituted under Florida law the practice of law.

Mr. Carlisle M. Moore: Well, I can take --

Justice John M. Harlan: Or I --

Mr. Carlisle M. Moore: I contend that this is an area under which Florida has no power that this is not an area under which any of their general attorneys can practice.

This is --

Justice John M. Harlan: Well, it maybe that Florida has no right to do what it's done but it surely has the right to say what is the -- what is practice of law and within the meaning of the Florida statutes?

Mr. Carlisle M. Moore: Well, I think it might have that power but I don't think that it can then go and say that even though they consider this to be the unauthorized practice of law, I don't think that they have the right, the power to say that a person cannot do that in Florida when he has a federally right to do it.

Justice John M. Harlan: Well, that's what I thought the real question in this case was whether the federal statute in effect preempts Florida's right to say that you can't do this without becoming a member of the Bar under Florida law.

Mr. Carlisle M. Moore: Well, that is correct.

And the patent statutes and rules do provide that.

The patent statutes provide -- give the Commissioner of Patents the sole power to determine who is to be admitted to practice before the Patent Office.

Justice John M. Harlan: We'll put it in another way.

This case comes here with a finding by the Highest Court of Florida that what is being done here violates their practice of law statutes.

Mr. Carlisle M. Moore: That is correct.

Justice John M. Harlan: And we certainly have to accept that determination, don't we?

Mr. Carlisle M. Moore: Not when it discuss upon federal rights --

Justice John M. Harlan: Well, is that where the point (Voice Overlap) is -- that doesn't end the case as far as you're concerned obviously but that's the point of departure that we have to move on from, isn't it?

Mr. Carlisle M. Moore: No, I don't think that you are bound by their determination that this is the unauthorized practice of law and therefore must be stopped.

Justice Hugo L. Black: But why aren't we --

Justice John M. Harlan: I don't understand that.

Justice Hugo L. Black: I don't quite understand that either.

What I understand is, as you claim that the Federal Government with power to do so as prescribed how patent applications shall be filed carried to the Patent Office and that the appointed agents who have power to do that, do you say that Florida has come along and said that -- the doing of that thing violates Florida law and you say that it's barred by the Superior -- the Supremacy Clause of the Federal Constitution.

Mr. Carlisle M. Moore: That's right, Your Honor.

Justice Hugo L. Black: That's -- that's your only question, isn't it?

Mr. Carlisle M. Moore: Yes.

That there is a case cited in the -- in the reply brief also relied upon by respondent wherein they say that the State of Florida's determination on this matter should be accepted as final and binding on this Court.

Justice Hugo L. Black: Do they claim as I understand it that the Florida Court did that it can prevent that being done in Florida whatever else might be done somewhere else.

Mr. Carlisle M. Moore: That is correct.

And I --

Justice Hugo L. Black: And you say that they can't prevent it being done there or --

Mr. Carlisle M. Moore: Well, I think it's --

Justice Hugo L. Black: -- in the District of Columbia or in California because they were without power.

Mr. Carlisle M. Moore: Well, I think it's completely at odds with the federal legislation on the subject.

If all states were to do this and as indicated by one of these amicus briefs, their Bar Associations of about 20 different states taking the respondent's position.

Obviously, they are all going to -- to do the same thing if the Florida decision is upheld and the position of patent agents sanctioned by Congress would be eliminated.

Justice Hugo L. Black: Do you claim they don't have a right to have clothes shop industry?

Mr. Carlisle M. Moore: No, I don't, Your Honor, I don't believe they do, that this is something I feel is beyond the power of the State.

Justice John M. Harlan: Your answer to Mr. Justice Black perhaps I misapprehended the thrust of it.

I understood you to say that the things you thought that Florida had no right to interfere with were number five which was the preparation of applications for -- to those patents, would you -- you go beyond that, I take it, you say that they can give opinions and draw contracts within the field of --

Mr. Carlisle M. Moore: Only re --

Justice John M. Harlan: -- what pertains to applications?

Mr. Carlisle M. Moore: Yes, only relating to practice within the Patent Office.

What field in which they have been especially qualified to which they have had to take a test, a one day written test given to lawyers and agents alike before the Patent Office to meet the technical requirements of the -- an equivalent of an engineering degree which -- which is something that the average attorney does not posses.

These are matters of special techniques both legal and technical which are required to compare these patent applications.

Justice John M. Harlan: They're horrible things to read.

I know.

I've read a lot of them -- you go beyond that, you go beyond that, don't you?

Mr. Carlisle M. Moore: No.

Justice John M. Harlan: Or do you?

Mr. Carlisle M. Moore: No.

Justice John M. Harlan: In other words supposing these decree were cut down, let me put it specifically to you, to limit -- limited simply to five, would you be satisfied with that?

Mr. Carlisle M. Moore: No, Your Honor, because then with four, it says he can't hold himself out as qualified to prepare and prosecute applications, what sense would there be in saying that he could do that in Florida and yet say that he couldn't hold himself out as -- and able to do that.

It makes no sense to me.

Justice William J. Brennan: Unless the Board (Inaudible) whatever, your position basically as I understand it is that -- can federal preemption here, whatever the activities maybe defined as under Florida law as bringing them within the practice of the law, nevertheless to the extent of the federal statutes, permit the Patent Office to permit agents to do things.

To that extent, Florida is powerless to prevent it.

They're being done in Florida.

Mr. Carlisle M. Moore: That is our position.

Justice William J. Brennan: Well, then what -- well, then what -- I don't understand why you're -- you're so willing to concede the wording of this injunction in any form if basically it's a problem of preemption.

Mr. Carlisle M. Moore: Because --

Justice William J. Brennan: Now the Patent Office defines what these agents may do.

Mr. Carlisle M. Moore: Because the -- the judgment here extends far beyond practice before the Patent Office.

Now, we are con --

Justice William J. Brennan: I know but preparing, drafting, construing legal documents in this context, if permitted under Patent Office regulations could be done by patent agents, I would suppose --

Mr. Carlisle M. Moore: Then we would say that was bad.

Justice William J. Brennan: Well, I should think you would.

Mr. Carlisle M. Moore: Well, we do, Your Honor, and that's why I was talking about specifically four and five.

Justice Byron R. White: Well, you don't say, don't you that if number six says otherwise engaging in the practice of law, I would assume you would say that if doing what the pat -- Patent Office tells you, you can do, happens to amount to the practice of law in the State of Florida, Florida nevertheless cannot prevent it.

Mr. Carlisle M. Moore: That is right, Your Honor.

Justice Byron R. White: Suppose the Patent Office wants to call an attorney instead of agents.

Mr. Carlisle M. Moore: Well then, of course that's what they do right now.

That might however be in such a field that a state could properly require those persons to designate themselves in such a manner that would not confuse the public into thinking that they were actually attorneys at law.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Carlisle M. Moore: No, that's -- of course, that is one of the problems involved here.

That's why the case is here.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Carlisle M. Moore: That is correct generally.

But there's another requirement.

Justice Arthur J. Goldberg: No, the decision of this Court is whether there is a federal statute that (Inaudible) that does not exclude (Inaudible)

If that is so, then, you are saying what?

Are you saying that this statute, this statute of a state, if they argue the (Inaudible), is that granted by a lawyer?

Are you saying that -- what, it has no rational basis?

Mr. Carlisle M. Moore: No.

Justice Arthur J. Goldberg: Is that what you want to look into?

Mr. Carlisle M. Moore: On that's --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Carlisle M. Moore: On that specific point, this Court itself has said that it's the duty of the Commissioner, not the courts to protect the public from dishonest patent practitioners.

Justice Arthur J. Goldberg: Then you are saying that the Federal Government is acting to the area of court proceedings -- the Federal Government has been active in the area of court proceedings (Inaudible)

Mr. Carlisle M. Moore: Yes, Your Honor.

Justice Arthur J. Goldberg: Where do you find this from the statute, the part that discussed about the Patent Office and discussed about the Commissioner of Patents (Inaudible) regulations?

Mr. Carlisle M. Moore: Well, we find it in Sections 31, 32, and 33 of Title 35 and then in the -- in a comprehensive set of rules which have been adopted by the Patent Office covering the admission, conduct, and expulsion-exclusion and discipline of patent practitioners.

Justice Arthur J. Goldberg: In other words, the general finding is that you may provide for (Inaudible)

Is that correct?

Mr. Carlisle M. Moore: In this particularity, yes.

Justice Hugo L. Black: It's something like the Labor Act.

Mr. Carlisle M. Moore: Like what?

Justice Hugo L. Black: It's something like a Labor Act preemption.

Mr. Carlisle M. Moore: I know.

Justice Hugo L. Black: Very well.

Mr. vom Baur.

Argument of F. Trowbridge Vom Baur

Mr. F. Trowbridge Vom Baur: Mr. Chief Justice, may it please the Court.

This is probably the first unauthorized practice case to be argued in this Court.

And in my view of the petitioner's contentions raised a number of serious legal questions.

And as a result, I have a fair amount of materials to try to get out in 30 minutes and accordingly I will endeavor to present my argument in more or less outlined form.

Now, there are certain facts which the petitioners did not mention of which I think are material to the case.

The Solicitor General states in his brief that the petitioner here had practiced in Florida for many years.

This is incorrect.

The petitioner moved to Florida in 1958.

And there he proceeded to rent an office on the First National Bank building of Tampa and to advertise himself on the office door as a Patent Attorney.

And in answer to your question, Mr. Justice Stewart, the petitioner admitted in his brief in the Supreme Court of Florida which I have here, that the term ‘patent attorney', quote, “implies that he is a member of the Florida Bar.”

Then he proceeded to advertise himself in August, 1960 in the classified directory of the telephone book as a patent attorney.

And properly thereafter, in February 1961, the Unauthorized Practice Committee of the Florida Bar got after him and sued him, sued to enjoin the unlawful practice of law by the petitioner.

Now here's what the petitioner did in Florida.

First, he rendered legal opinions as to infringement and as to patentability.

Secondly, he prepared patent applications.

Third, he prepared legal documents, specifically license agreements, and he was admitted in the court below, and I'm quoting now from page 2 of the record, that the petitioner quote, “holds himself out to the public as authorized to engage in the practice of law in the patent field.”

In short, this is a holding out case.

Now, in the decision below, as it has already been indicated, the court below held that each of the acts in question committed by the petitioner, constituted the practice of law.

And the Court also held that the practice of law or rather the practice of patent law was the practice of law because the petitioner argued in the court below that the practice of patent law was not the practice of law.

Now it has also been indicated but not quite specifically enough, the petitioner here does not contest the entire decree below.

He does not assert a right to continue to use the term ‘patent attorney' or to continue to hold himself out as a lawyer.

Now, he does not assert the right to continue to repair legal documents and notably license agreements, and he does not assert the right to otherwise engage in the practice of law, and notably trademark practice which is also covered by the record.

And here, we come close to the point of the case perhaps of the issue.

As I read his reply brief at page 2, he does not assert a right to give legal opinions as to infringement and patentability if unconnected with the preparation of patent opinions, but he does assert a right to give legal opinions as to infringement and patentability if connected with the preparation of patent opinions -- patent applications, I beg your pardon.

Justice Potter Stewart: Qualification.

Mr. F. Trowbridge Vom Baur: Yes, sir, I used the wrong word, patent applications.

Justice Potter Stewart: In short, is it correct to say that the issues now are narrowed so that all the petitioner is claiming is what the -- what the rules of the Patent Office gives him, by which do not include the right to hold yourself out as a lawyer in the general practice of law.

Mr. F. Trowbridge Vom Baur: Yes, sir, I think that is a fair statement.

Justice Potter Stewart: So now that -- it's boiled down to all -- he is claiming against infringement by Florida of the rights, you say, which the Patent Office gives him, isn't that right?

Mr. F. Trowbridge Vom Baur: Yes, sir, and here we're coming so closer to the -- to the fine point of case because the petitioner contends in this Court, his brief as replete with statement to this effect that what the court below did was to enjoin him “from practice before the Patent Office”.

Now, I submit to this Court, that is not a fair commentary on the decision below that the court below did not enjoin the petitioner from practice before the Patent Office, and I will state my reasons why it did not.

In the first place, there is no language in the opinion below which is susceptible of any such interpretation.

Secondly, the only acts which took place, which were enjoined by the court below took place in Florida and it is noteworthy that --

Justice William J. Brennan: Well, is that your point, Mr. vom Baur that all that he's been enjoined from doing, he's doing it -- doing these things in Florida.

Mr. F. Trowbridge Vom Baur: This is part of my point.

It's not -- it is not the whole story.

Justice William J. Brennan: Well, but I thought one of his arguments was that he's practicing before the Patent Office when he's doing these things in Florida.

Mr. F. Trowbridge Vom Baur: This is what he says and this is what I am endeavoring to rebut.

I'm just proceeding to that point now if I could continue with it.

In short, my point here that I'm now endeavoring to make is that the court below did not enjoin him from practicing the Board of Patent law.

Justice Hugo L. Black: So they specifically said that, is it not, on page 68?

Mr. F. Trowbridge Vom Baur: Yes, sir, the Court specifically said the contrary of that --

Justice Hugo L. Black: That's right.

Mr. F. Trowbridge Vom Baur: They say -- the Court said the issuance of this injunction and I think I can quote it will not in any sense interfere with the right of the petitioner to practice before the Patent Office in Washington D.C.

Justice Hugo L. Black: That is if he comes to Washington and does these things, couldn't it?

But if it's practiced before the Patent Office to do these things in Florida, certainly, he's been enjoined to that extent from practicing before the Patent Office.

Mr. F. Trowbridge Vom Baur: If it is a practice before the Patent Office, I deny, Mr. Justice Brennan, that it is and I would still like to try to get out my reasons as to why if I may, sir.

Chief Justice Earl Warren: Well, doesn't the -- doesn't the regulation of the Bureau provide that they shall not do it by public appearance in Washington that they shall -- they shall deal with the Bureau by mail?

Mr. F. Trowbridge Vom Baur: That is an interesting question, Mr. Justice Warren, Mr. Chief Justice.

And -- well, the petitioner here makes that statement in his brief.

That in fact, in reading his brief, one has the impression I think, that no personal appearances are ever necessary before the Patent Office and perhaps it never even take place.

The contrary is --

Chief Justice Earl Warren: Now, let's talk about -- let's talk about the normal practice and what they -- what they ask their agents to do.

Do they not encourage them to deal with the Bureau by correspondence and not by personal appearance before the Patent Bureau?

Mr. F. Trowbridge Vom Baur: I cannot answer as to whether they encourage it but I can say is --

Chief Justice Earl Warren: But don't they suggest it in their --

Mr. F. Trowbridge Vom Baur: -- the rule of the Patent Office -- excuse me, sir.

Chief Justice Earl Warren: Don't they suggest it in their rules?

Mr. F. Trowbridge Vom Baur: Well, they say something about all correspondence should be carried on by mail, but the point I would like to make in answer to your question is, that the Patent Office rules which is a fairly voluminous document here provide specifically for a number of personal appearances in the Patent Office, such as interviews with examiners under Patent Rule 133, an oral hearing or oral argument before the Board of Patent Appeals.

Chief Justice Earl Warren: Well, he admits that he can't go before the Patent Appeals.

Mr. F. Trowbridge Vom Baur: No, this is the Board of Patent Appeals in the Patent Office, sir.

Chief Justice Earl Warren: In that --

Mr. F. Trowbridge Vom Baur: And these are things which take place in the Patent Office in which I think constitutes practice before the Patent Office.

Chief Justice Earl Warren: Yes, yes, yes, I agree.

Mr. F. Trowbridge Vom Baur: Now third, there are -- there is oral argument on motions in the Patent Office and interference cases.

And fourth, there's a whole section in the patent rules which bears a big heading in the middle of the page, trial in interference proceedings.

And then there is oral argument before the Board of Patent Interferences, another Board within the Patent Office.

Justice Arthur J. Goldberg: Mr. vom Baur --

Mr. F. Trowbridge Vom Baur: Yes, sir.

Justice Arthur J. Goldberg: Let's just get down with the facts.

Now, it's your position that he can't have an office in Florida?

Mr. F. Trowbridge Vom Baur: And hold himself out as a patent lawyer.

Justice Arthur J. Goldberg: No, I haven't said that.

Can this man (Inaudible) Patent Office have an office in Florida, what's your argument?

Mr. F. Trowbridge Vom Baur: I think he can have an office there.

Justice Arthur J. Goldberg: Alright.

Now, if he can have an office there, if he can rent an office, what can he do in that office consistent with the Florida decision that you (Inaudible)

Mr. F. Trowbridge Vom Baur: He cannot practice law in Florida, Mr. Justice Goldberg.

He --

Justice Arthur J. Goldberg: Considering any patent application to the Patent Office from his office in Florida?

Mr. F. Trowbridge Vom Baur: He cannot prepare a patent application.

That --

Justice Arthur J. Goldberg: Well, what do you do outside to pay rent?

Mr. F. Trowbridge Vom Baur: Justice Goldberg, most -- the great bulk of patent app -- of patent agents do not hold themselves out to the public.

The instance of a patent agent holding himself out to the public as entitled to practice patent law is a rare occurrence.

The great bulk of patent agents work in corporations, in the Government, or in law firms largely under the supervision of a lawyer, that is the -- those are the facts which distinguished this case from the great bulk of the other cases involving patent agents.

Justice Arthur J. Goldberg: So, what you're saying now (Inaudible)

What you're saying now is he cannot have a lease or rent an office.

He could work in a corporation if he's under the supervision of a lawyer.

Now, (Inaudible) what could he do independently?

Mr. F. Trowbridge Vom Baur: He cannot hold himself out to practice law in the patent field.

Justice Arthur J. Goldberg: Suppose he says -- now supposedly, I am not a lawyer and I am an agent of the Patent Bar and owning to both to -- by applications before the Patent Office, not every lawyer (Inaudible) what's your view there?

Mr. F. Trowbridge Vom Baur: The court below held that the preparation of patent applications constitutes the practice of law.

He would be enjoined from doing that and he will be barred from doing it.

Justice Arthur J. Goldberg: In other words, he could not have (Inaudible) within the Patent Office within Florida, in this area unless -- regardless of the statute that followed on what might be fully advised unless he operates under the (Inaudible) of a lawyer.

Mr. F. Trowbridge Vom Baur: Yes, sir, if he is practicing law, that is correct.

Justice Arthur J. Goldberg: Well, then your statement concludes it, but I am trying to get to the facts.

He could not operate in a limited area on filing applications or letters for patent to the Patent Office from Florida (Inaudible) regarding to applications unless he operates under the supervision of a lawyer.

Mr. F. Trowbridge Vom Baur: I think that is right, sir.

Justice William J. Brennan: Was that -- say Mr. vom Baur that he -- he might take employment with a Florida law firm in general practice and do their patent application work for them?

Mr. F. Trowbridge Vom Baur: Working under the supervision of a lawyer, yes sir.

Justice William J. Brennan: But what would -- what would the lawyers in general practice know about -- especially in patent applications.

Mr. F. Trowbridge Vom Baur: Well, and -- very frankly, lawyers in general practice don't practice patent law unless they are also admitted to practice before the Patent Office.

There are, however, patent law firms in Florida and I dare say as elsewhere some of them employ patent agents to work in the firm of lawyers.

Justice William J. Brennan: Well is that to say then that the only employment he could take would be with some law office doing a patent law of business.

Mr. F. Trowbridge Vom Baur: Or with a corporation or within the Government, there are a number of faculties in the Government.

Justice William J. Brennan: Not with some firm in general practice.

Justice Byron R. White: Well, Mr. vom Baur, that doesn't quite follow does it really -- it seems to me that anything that the Patent Office want it done or that not wanted done, permitted to be done by a nonlawyer, he could do it.

Anything that required a lawyer to do in the State of Florida any lawyer could do as far as Florida law is -- were concerned.

Any lawyer could give a patent opinion, any lawyer, isn't that true?

Mr. F. Trowbridge Vom Baur: Under the law of Florida?

Yes, sir.

Justice Byron R. White: Yes.

And isn't it true that any lawyer could hire this man to help him and sign his work.

Mr. F. Trowbridge Vom Baur: With one condition, Mr. Justice White, and that is that the lawyer also be admitted to practice before the Patent Office.

Justice Byron R. White: Well now, how far does the --

Mr. F. Trowbridge Vom Baur: Because the rules of the --

Justice Byron R. White: I'm just talking about the laws in the State of Florida?

Mr. F. Trowbridge Vom Baur: No, sir, there's a federal statute which requires --

Justice Byron R. White: I understand this but anything that goes to the Patent Office, he signs.

Now, the two of them together could do -- could do everything that you or the State of Florida or the Patent Office which implies.

Mr. F. Trowbridge Vom Baur: Perhaps so.

Justice Byron R. White: Yes.

Chief Justice Earl Warren: In other words, in preparing an application for a patent, he would have to do it under the supervision of a Florida lawyer and when it came to presenting it to the -- the Patent Office, the Florida lawyer would have to do it under the supervision of this man.

Is that correct?

Justice Byron R. White: Mr. Chief Justice, this is --

Chief Justice Earl Warren: I don't say that --

Justice Byron R. White: This is (Voice Overlap) --

Chief Justice Earl Warren: I don't say that superciliously but isn't that true as you state it?

Justice Byron R. White: No, sir, it is not true because in the first place, if I may say so, sir, it is unrealistic in the sense that no general practitioner tries to file applications in the Patent Office.

There is a federal statute which prohibits him from holding himself as qualified to do that unless he has admitted also to practice before the Patent Office.

The great bulk of the patent work in this country, as I understand it, is done by lawyers who were admitted to practice before the Patent Office and those are what you might call dual authority.

Chief Justice Earl Warren: How many are there in Texas who are lawyers who are -- not detected within Florida who were so qualified?

I read from your brief that there are 73 in the State of Florida, 73 lawyers who were qualified to act before the Commission, is that not correct?

Mr. F. Trowbridge Vom Baur: I think so.

That's right.

Justice Hugo L. Black: May I ask -- I think I understand what the idea is but I'd like to just state.Do you represent the Bar Association, do you not?

Mr. F. Trowbridge Vom Baur: Yes, sir, I do.

Justice Hugo L. Black: American Bar Association.

Mr. F. Trowbridge Vom Baur: Yes, sir.

Justice Hugo L. Black: What does -- am I wrong in thinking under the position of Bar Association means that it doesn't want any patent agents doing the business in Florida, thinks they shouldn't do it, that's its position and belief and if they should -- cannot be done legally and if the State of Florida can bar agents from carrying on any of that patent activities in Florida.

Mr. F. Trowbridge Vom Baur: We don't believe --

Justice Hugo L. Black: That's what I gather it to be.

Mr. F. Trowbridge Vom Baur: That is fairly close sir.

We do not believe a patent agent has the right to practice law in Florida in the patent field.

Justice Hugo L. Black: I -- let's forget the words practice law.

That means a thousand different things to a thousand different people.

What can he do -- or is it your position that he cannot thoroughly be there, be a patent agent, draw up application, talk to people about their applications, amend their applications and general management, and do any of those things and that if he does, he violates the law of Florida under the law of Florida is valid.

Mr. F. Trowbridge Vom Baur: I think so.

Justice Hugo L. Black: That's right, isn't it?

Mr. F. Trowbridge Vom Baur: I think so.

Justice Hugo L. Black: I think we could get it better if it's -- just argued on those -- that statement of facts.

Mr. F. Trowbridge Vom Baur: Well sir, I would like now if I may to return to my point that practice before the Patent Office was not enjoined by the court below.

It has pointed out the court below expressly disavowed any intention to interfere with the practice -- the practice before the Patent Office.

And fourth, in support of --

Justice Hugo L. Black: You said when done outside the State of Florida, that's the language you've used.

Mr. F. Trowbridge Vom Baur: Yes, sir, that is true.

And in the context of facts in this case, I think it is impossible to practice before the Patent Office in Florida-D.C. and I would like to give you one big reason in my opinion why.

Practice before the Patent Office according to the cases as I understand it means practice in the presence of the practice office, the Patent Office.

I have cited some five cases in my brief, pages 54 and 55, to the effect that practice before a government official or tribunal means in the presence of the particular government official or tribunal.

Those five cases in turn I may say, cites some other cases and they are not disputed by -- by adversary here.

And further, if I may proceed to the mechanics of practice before the Patent Office which I think there are some significance on this question, we find that, I submit, the practice before the Patent Office cannot begin until, number one, a proceeding is started before the Patent Office, and number two, there is an applicant there who can be represented.

Now, the mere preparation of a patent application does not start a proceeding in the Patent Office.

Secondly, if it's mailed at the Patent Office and physically received by the Patent Office, it is not automatically filed there.

There is a rule of the Patent Office which says, they will be carefully inspected, and if the particular application does not meet the specific requirements of the rules, the application will not be accepted, and will be sent back to the applicant.

And I may that if the statute of limitation runs in the meantime of course, the inventor is in trouble.

Now finally, there is no applicant before the Patent Office to be represented by anybody until after an application has been physically received and legally accepted and filed by the Patent Office.

And now I come to my first point, which is if the States have the right to control and regulate the practice of law.

This I think has been settled in this Court by Bradwell versus Illinois and in Theard versus United States in 354 U.S.

This Court stated that a states control over its judicial system was “autonomous” and the reason for this appears to be as stated in Theard versus United States that the Court's control over a lawyer's professional life derived from his relationship to the responsibilities of the Court, now I come to my second sub-point under this, which is the fact that the practice of law in a particular State involves federal subject matter in no way diminishes the power of the State to regulate it and here we come, if the Court please, to perhaps the only unauthorized practice of law case that has ever actually reach this Court and then cited by it with approval and that case is Kovrak versus Ginsburg in 358 U.S.

Now in that case, Kovrak was admitted to practice before this Court, the District of Columbia Courts and most significantly, the United States District Court for the Eastern District of Pennsylvania, a tribunal which sets in Philadelphia.

Now, he was not a member of the Pennsylvania Bar, but like the petitioner here very much, he nevertheless set up an office in Philadelphia and preceded as such -- advertised himself as “attorney at law, proctor in federal taxation”.

And at this point, the Unauthorized Practice Committee of the Philadelphia Bar Association proceeded to sue to enjoin him from unlawfully practicing law in Pennsylvania.

An interestingly enough in the Supreme Court of Pennsylvania, Kovrak's position according to the Court's statement was and I'm quoting now, “That he has a legal right to practice law anywhere in the Eastern District of Pennsylvania with regard to any legal matter in which a federal question was involved, no matter how remote.”

This is on page 26 and 28 of respondent's brief.

And I may say this is very close to the petitioner's contention in this case, “That he has a right to practice law anywhere in Florida with regard to any legal matter in which a patent question is involved perhaps”.

Justice Arthur J. Goldberg: But not before the (Inaudible)

Mr. F. Trowbridge Vom Baur: Yes, bear in mind Mr. Justice Goldberg, that is entirely right sir, but here, this man, held -- opened an office in Philadelphia, the very place where this tribunal six in the United States District Court of the Eastern District of Pennsylvania through which he was admitted, and he held himself out as an attorney at law, proctor in federal taxation.

And he contended he had a right to practice law anywhere in the Eastern District of Pennsylvania where a federal question was involved.

And the Court rejected his contention and said and I -- this is very significant if you will bear with me, I'd like to read it just one sentence.

No case has been suggested to us which holds that membership in the Bar of the United States Supreme Court entitles an attorney to practice anywhere in the United States without reference to local state requirements.

And that we substitute membership in the Bar of the United States Patent Office.

We have, I think the basic problem in this case.

Now in addition, in Kovrak versus Ginsburg, the Court, Supreme Court of Pennsylvania also pointed out that this did not interfere with his right to try cases in the United States District Court for the Eastern District of Pennsylvania.

Just as the court below pointed out that the -- that the decree below does not prevent him from practicing before the Patent Office in Washington D.C.

And finally, with respect to this case, if I may mention, it was cited with approval by this Court in Martin versus Walton in 368 U.S. 25.

Justice Arthur J. Goldberg: (Inaudible)

Mr. F. Trowbridge Vom Baur: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. F. Trowbridge Vom Baur: Appear where, sir?

Justice Arthur J. Goldberg: (Inaudible)

Mr. F. Trowbridge Vom Baur: Exactly.

Justice Arthur J. Goldberg: (Inaudible)

Mr. F. Trowbridge Vom Baur: Not so much a part of -- the matter of housing, it's a matter of holding himself out.

He can house himself physically anywhere but if he holds himself out to practice law, that is bad.

Well, I may say in this connection, there are two leading cases, I have so little time that I'm just struggling to get this out which upheld that admission to practice before a federal administrative agency does not entitle the person involved to practice law in a particular State.

Now one of them is a leading case in the patent field, Chicago Bar versus Kellogg upon which the court below extensively relied.

And again, the petitioner in that case contended there as he does here, that his recognition before the Patent Office entitled him to practice patent law in Illinois.

And the Supreme Court of Illinois said, “No, you can practice before the Patent Office to beat the bond but you cannot practice patent law in Illinois.”

Now if I may continue, I only have four minutes left that I want to get to this matter of the construction of the statute, if the Court please, because this is rather important.

The petitioner is given the impression that there is some kind of federal preemption here.

In my opinion, this is not so.

The keyword in this statute is the word recognition.

And I submit to Your Honors that the word recognition does not deal with the subject or purport to grant anything of a nature of a federal license, rather it is a much more passive lukewarm tepid kind of word which deals only, as I read Webster's Dictionary with the subject of acceptance in the sense of being entitled to attention.

This is a far cry from an affirmative grant of a license or the language in the Federal Power Act for instance which specifically says that so on as the Commission has power to issue licenses for the construction of dams, etcetera.

Now finally and this would be the last point I was trying to get out because I do not have any more time.

This particular statute in dealing with the recognition, I submit, was not passed to implement Article 1, Section 8, Clause 8 of the Constitution, rather it was merely a legislative recognition of a practice which had long existed in many of the government departments as part of their inherent power as a government department under Article 2 of the Constitution.

Now, the first place under that, during the Civil War and shortly thereafter, the Pension Office dealt with the subject of admission of attorneys to practice and their continued regu -- recognition under regulations promulgated by the Secretary of the Interior.

Then the Attorney General in 1880 ruled that the authority to disbar an attorney practicing before the Department of the Interior was an authority not given by statute but which seems to have been exercised heretofore by heads of departments in the protection of the Government.

That is independent of statute and that is this statute here because it is a companion statute, the two statutes which were passed at 1884, each virtually identical with this one, one dealing with Interior and one dealing with Treasury.

And finally, in Philips versus Ballinger, a case which is cited by approval by this Court in Goldsmith versus Board of Tax Appeals, the court there upheld the disbarment of a lawyer by the Secretary of Interior under the 1884 Act, which as I say is virtually identical with this one on the theory and I'm quoting the case now, “It is unnecessary to consider whether the 1884 Act constitutes anything more than a legislative sanction of the practice heretofore existing under another statute by a -- through all revised statute 161 nullified United States Code 22.

And that statute, I may say, gives the head of each department the power to promulgate rules governing the conduct of this department and this Court held in United States versus George in 228 United States that the power given by that statute was administrative only and not legislative.

In short, my point here is, if the Court please, that this particular statute was not passed to implement Article 1, Section 8, Clause 8, but rather was a mere legislative recognition of a practice theretofore existing for many years as part of the inherent power of a government department under Article 2 of the Constitution.

Now there's another feature the red light hasn't flashed yet but there is another feature here which I wish to -- which is of some importance.

And that is to take the administrative interpretation.

In 1938, the rules of the Patent Office were revised so as to provide categorically, and I have this in full page type on page 56 of our brief, that the registration on the Patent Office “shall not be construed as authorizing persons not members of the Bar to practice law.”

And that in 1949, the rules were given -- addressed the provision and that provision was restated in a new rule to effect that registration in the Patent Office shall only entitle the persons registered to practice before the Patent Office; in short, not somewhere else.

Now, I have --

Justice John M. Harlan: That's the same rules, if I mean one (Inaudible)

Mr. F. Trowbridge Vom Baur: Yes, sir.

Justice John M. Harlan: (Inaudible)

Mr. F. Trowbridge Vom Baur: In my opinion, that is correct.

Justice John M. Harlan: (Inaudible)

Mr. F. Trowbridge Vom Baur: No, sir, there is an additional rule which says the same thing with respect to trademark.

Justice Potter Stewart: Are there any?

Mr. F. Trowbridge Vom Baur: Yes, sir.

If you will look on page 56 of respondent's brief, you will see the 1938 rule which provides in categorical terms the registration before the Patent Office shall not be construed as authorizing persons not members of the Bar to practice law.

Now there is a separate -- an additional rule which is mentioned I think in Appendix A which has said the same thing for trademark practices.

Then as I've pointed out, the 1938 rules when they were given a general revision in 1949, preceded the State, I submit the same thing by providing that registration in the Patent Office shall only entitle people to practice before the Patent Office.

Now there's one other point I should like to try to get up before the red light flashes, and that is that the patent power is a very limited power.

This Court has held in Patterson versus Kentucky and two other cases that except for interference with an -- and fetters exclusive right to a patented invention, the Patent Clause and the patent statute passed by Congress are subject to the State's police power and there is at least one unauthorized practice case which is referred to at some length in Patterson versus Kentucky, one of the leading cases in this Court on federal state relations in the -- rather in the patent field where the -- where Jordan, this is Jordan versus Overseers of Dayton in our brief at pages 71 to 73 claimed that he had a federal right to administer a patented product without getting a license to practice medicine in Ohio.

And the Supreme Court of Ohio and also this Court said that he have to get a license to practice medicine in Ohio before he could administer the particular invention.

Of that, the case at least came close to interfering with an inventor's exclusive right to an invention.

Well, our case does not.

Our case bears no relationship whatever to the protection of an inventor's exclusive right to an invention.

Finally, this case, if the Court please, involves the future of the Bar and my last point is that a strong Bar is itself essential to the public welfare, and in this connection, I think it is effect of no small significance that one of the first acts of dictators such as Hitler, Mussolini and Castro is to decimate the Bar and with the decimation of the Bar there disappears also that leadership and public affairs, if I may say so, and the protection of the public which a strong Bar affords.

And with -- if the practice of law is going to be whittled away, chip by chip and turned over to laymen, lay agencies then the public will no longer have the protection which a strong Bar affords and the public will suffer.

Featured:

Willner v. Committee On Character - Oral Argument

Tue, 25 Sep 2012 22:33:13 +0000

Case:

Willner v. Committee On Character

Media File:

140_19630221-argument

Related Transcript:

140_19630221-argument

Transcript:

Argument of Henry Waldman

Chief Justice Earl Warren: Number 140, David Wilner, Petitioner against Committee on Character.

Mr. Waldman?

Mr. Henry Waldman: Yes I want to say at the very outset that I have been practicing law more than 60 years, and most of it in trial and appeal work in courts.

Well that's the reason my voice may not have the volume and I'm going to ask Your Honors to bear with me.

Chief Justice Earl Warren: [Inaudible]

Mr. Henry Waldman: Thank you, Your Honor.

This is an appeal from a unanimous decision of the Court of Appeals of the State of New York, which denied the petitioner, Willner admission to the Bar.

Willner commenced or rather applied for admission some 25 years ago.

It was denied and he has been fighting for it ever since.

Willner was the son of immigrant parents who were impoverished, and unlike we often read about young men who work their way through college, he not only had work to his way through college, and four years of law school, but he actually had to work his way through elementary school. the reason of the fact that those people were so poor.

Now ordinarily the average young man who applies for admission to the Bar is about the age of 25, 26, 27, when he applied he was a mature man, 36 years of age.

He had graduated from the School of Commerce, New York University with a degree of Bachelor of Commercial Science.

He then studied law for four years and graduated first as a Bachelor of Laws and then as a Master of Laws, and that exempted him from having to serve a clerkship in a lawyer's office, and that's very important in this connection.

He was married, had two children, a boy was suffering from asthma, was living in New York and then decided it would be better if he would move the family to the country, or at least -- and he moved it to Peekskill up in Westchester County.

It's about 30 miles north of the City Line.

And he had to make a living and what he knew was accounting, he practically finished his accounting course.

So he engaged in business of accounting, and that of course brought him into contact with people who had to do business with, and anyone who participates in the activities of the marketplace is bound to get an occasional cuff, bound to get into disputes like anybody else who engages in business, and he did.

He got into a dispute with a lawyer by the name of James Dempsey and I am not going into details regarding it, but he made a bitter enemy of Dempsey.

In the meanwhile, he had taken the Bar examination, had passed successfully and was ready to be admitted to the Bar.

Now admission into the Bar in New York is delegated to the Appellate Division.

The Court of Appeals makes the rules and regulations and delegates the Appellate Division, the business of admitting attorneys to the Bar.

Naturally the number of lawyers who apply for admission is very large in New York, and so the job of examining the character and fitness of the applicant for admission to the Bar is delegated to a committee of -- termed the Committee on Character and Fitness.

It consists of ten members and they are all supposed to be eminent lawyers.

Willner having received his certificate from the Board of the Law Examiners then applied to the -- or Bar rather appeared before the Character Committee.

Unknown Speaker: [Inaudible]

Mr. Henry Waldman: Pardon?

Unknown Speaker: [Inaudible] character, who appoints --

Mr. Henry Waldman: Oh, the Character Committee is appointed by the Presiding Justice of the Appellate Division and in the meanwhile, while waiting to receive his certificate as a Certified Public Accountant, he thought it advisable to open an office in Manhattan, and he sublet from the firm Weidner and Westall [Inaudible] cost of $7.50 a month.

That office was apparently managed by Weider, and after he got in there he found a motley crowd of subtenants, one was a bookmaker and by that I don't mean one who publishes or writes books, one who takes bets on races, another was a handicapper and as soon as Willner saw what he was in for, he walked out, and meanwhile he gotten into row with Weidner and Weidner's partner also realizing the sort of office was in, dissolved his partnership and walked out.

When he came before the Character Committee, oh, yes, and Weidner also filed a complaint --

Unknown Speaker: [Inaudible]

Mr. Henry Waldman: Pardon?

Unknown Speaker: [Inaudible]

Mr. Henry Waldman: Weider did and Dempsey did.

Justice Potter Stewart: Filed a complaint?

Mr. Henry Waldman: Complaint that is -- whether it was in affidavit form or just mere letters, we do not know, because Willner was never permitted to read them.

He was questioned about them, and the Committee consisted of Mr. Strook, Mr. Ellison and Basil O'Connor.

Apparently when he appeared before this Committee, he was questioned very sharply and he became very much nettled and probably in all -- probably spoke rather crudely.

In any event he apparently made a bad impression on this committee of three and lo and behold they filed a report which stated that they were not satisfied that he possessed the character and fitness requisite for a member of a Bar of New York.

Justice John M. Harlan: Was he given Mr. Waldman, was he given the names of the two lawyers?

Mr. Henry Waldman: Yes, he was told about them.

Justice John M. Harlan: Told about them.

Told --

Mr. Henry Waldman: But he was -- he asked the Committee to summon these two men and confront and permit him to cross-examine them.

In fact what he demanded of the Committee was he demanded a trial.

Justice John M. Harlan: Where does that appear in the record?

Mr. Henry Waldman: Oh, yes.

Justice John M. Harlan: I say where, I'm not questioning that.

Mr. Henry Waldman: It appears in the transcript.

Justice John M. Harlan: Well, never mind go ahead sir.

Mr. Henry Waldman: Pardon?

Justice John M. Harlan: Go ahead don't let me interrupt you argument.

Mr. Henry Waldman: Now he -- that was in 1937 and he made additional applications, about five or six more.

Everyone was denied without opinion, not so much as a three word sentence.

All unanimously denied, no opinion, and to this day he doesn't know just why he was not admitted to Bar except of course he assumes that the Dempsey and Wieder letters probably are the cause.

Now, the right to a trial, in a case of this kind is unquestioned.

When I mean a trial, I mean he has the right to face, to confront his accusers, cross examine them and in fact have a trial in the ordinary and the usual course, where common law procedure and rules of evidence are maintained.

As a matter of fact that right is established as case law in the State of New York and the case of a recoupment.

That case was argued in 1959, but decided -- published in 1960, that's a long time ago, but that case has never been overruled, modified or qualified to my knowledge and its stare decisis is still in force.

That case is the law in the State of New York.

Now that case stated that admission to the Bar was a substandard right.

In other words, a substantial right to which a man was entitled to confrontation and all.

Now as a matter of fact, the Character Committee every time is served with papers, never appeared either by serving a reply to the petition or by the personal appearance of one of it's members, all of whom are lawyers or of it's secretary.

He simply ignored it with a sort of silent content and that man Willner where every few years, he made a new application, denied, the Character Committee didn't appear and the Appellate Division simply denied it without opinion.

We finally got the petition, which initiated this proceeding was run up by Willner himself, though I think with the aid of a young lawyer friend.

In any event he appeared pro se and I only got into it later.

The petition was denied by the Appellate Division.

I made application to the Appellate Division for leave to appeal to the Court of Appeals that was necessary.

Motion denied, then I made an application to the Court of Appeals and to my amazement and joy the application was granted.

When I of course filed a brief and the other side did not file a brief, when I appeared in Albany before the Court, the other side wasn't there.

I argued the appeal for about 20 minutes and two days later, they rendered their decision.

Order of the Appellate Division unanimously affirmed, no opinion.

The first time that I received a brief was when I filed my petition for certiorari here.

And then the Attorney General of New York up here filed a brief and from the -- but only really said, was in view of the fact that his application had been denied way back 25 years ago, there's no reason why, the petition should be granted.

And there is that -- although he didn't raise the claims, res judicata and in my reply brief, I would like to state because I think its worth stating in answer to his claim, a distinguished general in the army attended a social function in full dress uniform and his chest covered with medals.

Asked how he got all of these medals, he said the first I got by mistake and the others because of the first.

Now the same thing here, the -- having denied his admission in 1936 and they contend that he should be denied admission in the year 1963.

Chief Justice Earl Warren: Mr. Cohen.

Argument of Daniel M. Cohen

Mr. Daniel M. Cohen: Your Honor and Justices of the Court, may it please the Court.

I think that possibly one of the clearest answers that can be given to the petition in this case was indicated by the procedure here this morning when in connection with admissions to the Bar of this Court, each applicant was required to produce somebody who would certify that the applicant satisfied the requirements of the Bar of this Court.

New York has a similar requirement with respect to its Bar.

The process of admission as Mr. Willner has stated has been entrusted by the New York courts to the various Appellate Divisions, the four Appellate Divisions throughout the state.

Each of these Appellate Divisions dealing with residence in its own district has what has been described as a Character Committee.

This Character Committee can affect forms for the large group of applicants to the Bar in New York, the same function that was performed here this morning by previously admitted members of a Bar of this Court.

It examines into the character of each applicant and if the Committee is satisfied as to the applicant's character and fitness it certifies to the Appellate Division that the applicant is entitled to admission.

Now --

Chief Justice Earl Warren: That was exactly like ours [Inaudible]

Mr. Daniel M. Cohen: It's not exactly like yours, it's not --

Chief Justice Earl Warren: [Inaudible] bar and in yours he must go before this court and if they say no then he has to file [Inaudible]

Mr. Daniel M. Cohen: Exactly Your Honor, in effect there is a monopoly, but it is a monopoly which exists under the law of the State of New York, they – there isn't any challenge as I see it to the procedural provision that requires the endorsement by the Committee that is not the question that is been presented either by Mr. Waldman, for his client or by the Bill of Rights Committee of the Bar Association, which has filed a brief amicus.

Chief Justice Earl Warren: Do they also see that the [Inaudible]

Mr. Daniel M. Cohen: No, that's not agreed to at all.

The – and as a matter of fact if an admission were denied arbitrarily in New York, there is a procedure under – we submit under Article 78 of the Civil Practice Act which would provide for review of any arbitrary action by the Committee.

Justice John M. Harlan: Am I right in thinking that the Character Committee as an arm of the Court simply files its report either recommending or recommending against a candidate, is that right?

Mr. Daniel M. Cohen: Your Honor is absolutely right, if this is in effect an investigating committee of the Court.

Justice John M. Harlan: Well now the next question I want to ask you, is there a procedure where if a man fails to be certified by the Character Committee, does he have any regress before the Appellate Division, if he chooses to contest its recommendation?

Mr. Daniel M. Cohen: [Inaudible] was applied at the Court for admission, he can attempt review as I suggested by Article 78.

The situation here with Mr. Waldman -- with Mr. Willner but the – apparently at no time after his various denials to be applied directly to the Appellate Division for review of an action by the Committee, the –

Justice John M. Harlan: Is that a fact?

Mr. Daniel M. Cohen: I think that is a fact and I think that the record will bear that out.

There were various applications that were made, various boards of applications, but if I can get down to the facts briefly, possibly I can show you exactly what happened.

The first application that was made by Mr. Willner --

Chief Justice Earl Warren: May I pose this [Inaudible] What requirements are there of the court [Inaudible] hold a hearing, is the applicant entitled to conformation [Inaudible]

Mr. Daniel M. Cohen: Well to those questions one at a time.

Chief Justice Earl Warren: [Inaudible]

Mr. Daniel M. Cohen: In response to your first question, there are no absolute requirements that I can find in the New York Statute for any hearing.

There are no absolute requirements for cross examination or confrontation, that --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Pardon?

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: No, the statute does not prescribe in any sort of detail, the procedure that is to be followed by this Committee.

The Committee is primarily an investigating committee and is so designated in the statutes which provides for its creation.

The committee is -- has its procedure prescribed only in or approximately a very limited degree by stating that one of the procedures that it can require from an applicant is that he submit two affidavits in support of his application by attorney showing his good moral character.

Apart from that the Committee is pretty much left on its own as an investigator for the court, as an arm of the court, to go out and to obtain its information in the manner in which it deems it best to obtain the information.

There are no limitations on its processes of investigation.

The committee advertises as soon as an applicant files his application with the committee and transmits the certificate that he has satisfied the scholarship requirements by passing the Bar Exam.

Committee advertises in the Law Journal the names of the persons who have applied for admission.

Attorneys, other persons who see the advertisement in the Law Journal respond, send in whatever information they have.

The committee itself has investigators.

The staff is a relatively small staff, who are able to go out and to check up on the information that they receive, but the ultimate function of the committee is not to pass upon the application for admissions to the Bar, not to adjudicate that a person is not entitled to admission, but simply to transmit to the Appellate Division when it receives this information, which is unfavorable.

Now when there is no such information, when there is nothing which comes before the committee, which acts as sort of a danger signal, a warning to the committee that it should stop.

The committee is in a position where it can certify that an applicant is entitled to admission to the Bar.

When information comes --

Justice Potter Stewart: Mr. Cohen, I assume that in the vast majority of the cases, 99% or so cases a certificate is issued by the Committee, by the Character Committee under Rule 1, which if you are right in your --

Mr. Daniel M. Cohen: Yes, page four of --

Justice Potter Stewart: -- saying that the applicant is entitled to admission and that certificate is sent to the Appellate Division is it or to the applicant?

Mr. Daniel M. Cohen: No, that certificate is sent to the Appellate Division and the Appellate Division acts on it pretty much pro forma.

In most cases they will admit a very large class at one time, sometimes it comes to 300 or 400.

Justice Potter Stewart: Yes, now we're dealing here --

Mr. Daniel M. Cohen: Now this is the pathological case.

Justice Potter Stewart: Yeah, now we are dealing with the rare case where the Committee did not issue such a certificate and what do they do before they fail to issue a certificate, do they get in touch with the applicant or what happens?

Mr. Daniel M. Cohen: They get in touch with the applicant.

They bring him in for – before a sub-committee, generally consisting of three to five members.

In this particular department they work with two sub-committees both consisting of five members generally.

Justice Potter Stewart: And really, well I suppose we shouldn't be talking about what was the procedure back in 1937 and 1938 --

Mr. Daniel M. Cohen: This was the procedure back in 1937 and 1938. Originally however in this particular case they brought him in before a three-man sub-committee as was stated and Mr. Wieder was confronted with these letters, or this -- the record indicates one letter at that particular time, which had been received filing a compliant against him.

Presumably he was informed as to the substance of the complaint.

The sub-committee apparently thought there was enough here to worry about to have a full hearing and a hearing was arranged, Mr. Wieder, however, was not informed beyond apparently the substance of this letter as to the nature of the compliant that had been filed against him.

Justice Potter Stewart: Mr. Wieder or Mr. Willner?

Mr. Daniel M. Cohen: Mr. Willner.

Justice Potter Stewart: Yeah, Mr. Willner.

Mr. Wieder was --

Mr. Daniel M. Cohen: They are so much alike --

Justice Potter Stewart: He was the complainant, wasn't he?

Mr. Daniel M. Cohen: Wieder is the complainant.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Mr. Willner, the applicant was the only person present.

Willner is the applicant for admission, and no one was present at the hearing.

These hearings are held privately, secretly, confidentially, so that the facts as to an applicant are not exposed to the public at large.

Applicants as to whom unfavorable information is received are protected against publicity on such complaints and there is -- and possibly they may not turn not to be true.

Willner attended the hearing and as Justice Harlan has pointed out in the Second Koenigsberg case, the hearings are a form of obtaining information from these applicants.

One of the best methods of obtaining information from applicants is by examining them on the basis of information that has been obtained as to them.

Chief Justice Earl Warren: Has there been a hearing before [Inaudible]

Mr. Daniel M. Cohen: No.

The complainants were never brought in for hearing.

This was not an adversary type of proceeding, apparently what happened was that the committee, the Character Committee sent out its own investigator to check to a certain extent or as far as this investigator could, on the details of the complaints that were filed against the applicant and on the basis of the report that was brought back by the committee's own investigator, the applicant was examined before the committee.

Now, he was given notice through the form of questioning as to the nature of the charges and complaints that were filed against him.

He was given an opportunity to deny or admit the charges, in connection with the first complaint, and the first complaint was that this applicant had attempted to serve a clerkship where the attorney Weider had not completed it for various reasons.

The applicant admitted that he had failed in his questionnaire before the committee that set forth the fact that he had been employed by Weider.

Now, the fact of employment was significant because it indicated a non-disclosure of a fact that apparently the committee deemed material.

In view of the fact, this man actually did not require a clerkship.

The committee apparently did not dispose completely of the application in a negative form, but as you will see, as you go through the history of this case, it gave Mr. Willner an opportunity to come in supply whatever information he had to disprove the charges in the complaint.

These were not formal charges, this was just material contained in the letter.

The substance of my argument it seems has to be reduced in view of the short time that I have and I'm not going to try to quote with this whole record.

But the record will indicate that at various times the Committee deferred its disposition of this matter, granted various adjournments in effect to the applicant, to give him an opportunity to clear up his record.

Each time that he was given such an opportunity, there was a new complaint, there was something else that appeared that was disadvantageous to Willner.

Each time that the committee set this matter down for hearing that was material before it that could be considered as reflecting upon his character.

Now, there was no formal disposition in his first application until 1938.

I would say that the --

Chief Justice Earl Warren: Did they make any findings for the court at all [Inaudible]

Mr. Daniel M. Cohen: It's a very general finding, Your Honor, which indicates that the Committee was not satisfied as to that this particular applicant was fit for admission to the Bar and that he had the moral character which entitled him to admission.

It is not a --

Chief Justice Earl Warren: [Inaudible] what are the rights of the petitioner in the appellate Division?

Mr. Daniel M. Cohen: He can apply to the Appellate Division –-

Chief Justice Earl Warren: At that time?

Mr. Daniel M. Cohen: -- at that time he can apply for review.

He can move his admission.

It seems to me, might have some sort of procedure available by which he could ask for a hearing.

There is nothing, which prohibits it.

Chief Justice Earl Warren: Is there a statute on it?

Mr. Daniel M. Cohen: There is no statute on it, there are no rules and regulations which have been prescribed.

There is just the general procedure that is available either by way of motion practice in New York or by way of our so called Article 78 review the determination of an administrative body.

Now in effect, what Mr. Waldman suggests that we throw away the whole book, on the record it was of what has occurred with relation to the applicant, what they have, what I have set forth as to the proceedings before the Character Committee.

The various hearings that were held in 1938, 1948 and disregard this record in effect what he is asking us to do is to say that any of the facts before the Committee were immaterial because his client was not given the right to cross-examine and to confront the people who filed the first two complaints against him, Weider and Dempsey.

Now --

Chief Justice Earl Warren: Do you know of any practice of the appellate division whereby [Inaudible] petitioner a hearing to [Inaudible]

Mr. Daniel M. Cohen: Well, our experience in connection with these cases is very limited.

Generally what happens is that these committees treat these matters as non-adversary proceedings.

They have no ax to grind.

Their report goes to the court as an arm of the Court.

It is then up to the court to determine what it should do, but the court is in a position where on its own motion, it can direct such a hearing, it can direct that the hearing be held, whenever it wants to in -- if a situation develops that requires a trial-type hearing.

Most of these cases apparently are disposed by the Character Committee in a manner where they will not receive ex parte any information which the applicant is not given an opportunity to explain or to deny and the position of the committee is that it proceeds only on information which is not ex parte.

Now, if in connection with any particular application before, the committee has unfavorable information, information that makes it set up its own, and so here, this man must wait, the committee, it seems to me is not acting arbitrarily if it has in its possession unfavorable information.

In this particular case, the assumption is that everything was set against Willner in these first two complaints was credited.

If the complaints were completely credited and as to the first one of the charges was that the man asked for a false affidavit that he had served the clerkship.

I'm sure that if, if the committee had accepted that that it would never have allowed Willner later on and the Court itself would not have allowed Willner at a later day to have filed a new application for admission as it did in 1948.

If it had accepted the second charge, which would in effect was that Willner had engaged in a fraudulent transaction where he promised that he could put through an RFC loan that he had to pay moneys to an RFC employee to bring about the loan, if these charges had been taken in hold -- at face value by the distinguished members of the Bar who constitute this Committee then it seems to me that again the 1948 application would not have been allowed.

These would have been allegations of a sort that would have so, despite the man's character if accepted that he should not have been allowed to file a second application.

Chief Justice Earl Warren: What I would like to know is how does an applicant able to defend himself?

Is this [Inaudible] any place it wants then make no findings to the court.

Here they say that we don't believe that he has the character to become the lawyer.[Inaudible]

Mr. Daniel M. Cohen: Well he can pick --

Chief Justice Earl Warren: [Inaudible] the committee might be satisfied that eleven of them are [Inaudible] defend himself against that.

How is he going to prepare any defense to it?

Mr. Daniel M. Cohen: Well, it seems to me that the answer to that is substantially the answer I tried to give you a little while ago and that is that the application, the man can bring his case to court and say this is what happened, this is how I was examined before the Committee, I do not know on what ground my application was denied for a certificate, not my application for admission, the application for admission must be made to the court, I don't know why this Committee is not giving me a certificate.

I ask you the Appellant Division of the State of New York to direct the Committee to come in with a report which is specific, which contains findings which will inform me of the basis upon which my application has been denied.

Now he did not do that at the time --

Chief Justice Earl Warren: No, but what – it is perhaps [Inaudible] you said you don't know, you never heard of it.

Now how can he get such a hearing if the committee acts in general [Inaudible]

Mr. Daniel M. Cohen: He can get such a hearing by applying directly to the Appellate Division which in its inherent power has the right to grant such a hearing.

There is --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: He didn't do that when he -- what apparently what happened is that after an application is denied the applicant is notified by letter, by the Secretary of Character Committee that his application for a certificate of good character has been denied.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: He went back to the Appellate Division, but at the times that he went back these manners will rather stale.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: When you mentioned the first time, the first time apparently he went to the Appellate Division was 1943, which was five years after his application for a certificate had first been denied, he started this --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Well, in 1943 apparently what happened was that the Appellate Division denied without opinion his --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: His request on the basis of the report that has been transmitted to it by the Character Committee.

At that time he had asked for a hearing relative to his admission to the Bar in which he stated that he deemed it inadvisable to set forth at great detail, the various phases of testimony and the basis upon which his application for admission to the Bar was denied.

Now that very allegation would seem to indicate that at that time he knew I had a pretty good idea of the basis upon which his application had been denied back in 1938.

His hearing before the committee had been quite extended --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: He wanted to be appraised --

Justice Potter Stewart: So there was conspiracy?

Mr. Daniel M. Cohen: Well this was not in 19 -- he didn't say if there was a conspiracy in 1943.

He said in his original application for leave and we're here simply on an application for a leave to renew his application upon his application for leave to renew in 1961 that there was conspiracy.

Back in 1943 and this record is rather complex and I'd had to dig it out individual file papers, he said that he knew two things, first a considerable stress had been placed at his hearing, this first hearing on the fact that he had set forth in answer to a request for information that he had served no clerkship.

He didn't hit directly on the point the fact that he had --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: In effect that was what he asked for.

He asked that he -- he didn't get that at that time.

There isn't any explanation that I can find in the record the Appellate Division disposed of thing without opinion, I can only speculate that on the basis of the report that had been made by the committee and you'll find a reference to that at page 33 of my brief, 33 to 34, the Committee had reviewed the testimony and the hearings at which Willner had been personally present and in addition to they set forth certain details as to his conduct between 1938 date and 1943 application.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Why the Appellate Division --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Well --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Let me say this, I would say that all of this material is rather academic as back to 1943, because the Appellate Division actually allowed him in 1948 to renew his application.

I would say that every -- well let me tell you what happened in 1948.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Before the Appellate division?

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Well he -- apparently various representatives of his have seen the material in the file at various times.

It's not clear whether they saw the confidential reports by the Character Committee to the Appellate Division that little gap, which may not be considered by the court is a little gap is missing.

Chief Justice Earl Warren: [Inaudible]

Mr. Daniel M. Cohen: Well, I would say that he's had an opportunity to defend himself against it, because the record shows at first he was granted this opportunity in 1948 to file a new application for admission.

In 1948 it appeared that he had testified falsely in a civil proceeding as to one, whether he was a member of a certified Public Accountants Associate.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: This material which was incorporated in the various reports by members of the Character Committee to the --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: He had made an application before the Appellate --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: I don't whether these motions were argued orally or whether they were submitted simply on the basis of the motion papers, but there were various motions returnable before the Appellate Division.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: He never requested before the Appellate Division that he be granted.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: That's right.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: He asked that at this -- in connection with a particular application, which is before this Court for review, where in effect --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Yes, Your Honor.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Well I think --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: I think the answer to that has to depend upon the nature of function that this particular Committee performs.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: I would say that it does not deny him due process.

If he failed to request at an appropriate time, a hearing before the Court itself.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: One, it's a little bit tardy.

Witnesses --

Justice Potter Stewart: 25 years?

Mr. Daniel M. Cohen: Just about.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: I think it is because witnesses die.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Well, I think he is pretty much in the same situation as somebody who tries to get certiorari from this Court and tries at about six weeks or 20 days too late.

I think that the time for him to make his application was at the time when there are people available who can testify, pro or con.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Well, I didn't say at anytime.

I'd say within -- under your New York Statute, the provision that deals with the ordinarily review of the determination of an administrative body requires that an application for a view be taken promptly.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: An investigative body.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: It's an investigative body primarily; the only administrative function that I can see that it performs is to issue or not to issue a certificate.

Now, if you -- pardon?

Chief Justice Earl Warren: Is this [Inaudible] the administrative agency --

Mr. Daniel M. Cohen: I don't think that -- I don't think that the question has ever been formally presented to the New York courts for review.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: In this particular case?

In 1939?

In 1961, it --

Unknown Speaker: In May 1961 [Inaudible]

Mr. Daniel M. Cohen: In May 1961 you had an application, which was an application addressed to the Discretion of the Court for leave to renew an application for admission to the Bar.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: They just denied it.

The reason that they denied it is not clear.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: They did that because this Committee and the Court itself has assumed that it is its functions.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Possibly, I have clouded the issue rather than straighten it out.

But let me say this, this particular Committee has acted, as Justice Harlan indicated a little while ago as an arm of the Court.

The Court has assumed through the years and it was not until 1960.

Now, that in any case, the Court of Appeals called upon the Attorney General to submit a brief or to argue in the Court of Appeals, any appeal connected with the disposition of an application for admission to the Bar.

The matter has always been considered as an intra-court process.

The Character Committee reported to the Appellate Division.

The Appellate Division in case there was any application disposed the application.

If an appeal were taken to the Court of Appeals, the papers were transmitted just as they were in this case to the Court of Appeals.

Now, it was not until the disposition of matter of anonymous, which I've referred to in my brief in 1960, that for the first time, so far as I know, the Court of Appeals called upon any outside agency being the Attorney General's office in that particular case, and the Attorney -- this is the second time that it has called on the Attorney General to intervene in a case, and to act as an advocate.

The theory of a Court being that this is a matter, which requires the Court's own exercise of discretion, apparently being -- that the theory being that these experienced members of the Bar will not out of hand arbitrarily or otherwise on the basis of ex parte evidence dispose off any applicant arbitrarily.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: It's exactly what they say we have done here.

They say we've acted arbitrarily because we haven't given this man a hearing.

That in every case we got to give a man no --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Well, in the Court of Appeals, in the very case, which they cite, this matter of anonymous that came through the Court of Appeals last year.

The Court of Appeals indicated that if a proper application were made to the Court of Appeals for the papers, they would be allowed to be examined by the applicant.

The Court of Appeals in that case afforded that opportunity and directed that the confidential file be supplied.

Now, one of the difficulties with the position here is no such application was ever made.

Now, the failure to take advantage of the available remedy, it seems to me indicates a failure of advocacy possibly, a lack of diligence by Willner, but --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: That decision was handed down in 1960.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: When you say --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: This is not this case I'm about, Your Honor.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: I'm afraid that Your Honor is going to have to read this record a little bit more carefully, than I've been able to explain it within the limits of a 30-minute argument.

The record -- this book which the Appellant asks us to disregard completely contains facts which indicate that in 1943, possibly the basis upon which a hearing could have been granted, might have been outlined by the Appellant, but there would not have been at that time an arbit -- yeah.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: There is no reason why that could not be done in New York without an express rule.

Actually what happened in this particular case was that apparently the Court concluded that on the basis of the facts and --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: You have the facts on the basis, your own Committee's report and that --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Ordinarily, I should say --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Well, I think that possibly the questions that have been asked within the past few minutes indicate an unwillingness to accept what has been the traditional method of dealing with applications for admission to the Bar.

Justice Potter Stewart: There's been a good many references to the amicus briefs filed by the Committee of the New York City Bar Association.

Today, you filed a reply to that amicus brief containing at the end of it, in the appendix, a letter to Mr. Herbert Brownell from Mr. Waldman purporting to set up the procedure and function of this committee.

Does that accurately --

Mr. Daniel M. Cohen: I think it's --

Justice Potter Stewart: In your knowledge -- to your own knowledge [Inaudible]

Mr. Daniel M. Cohen: It's accurate and up-to-date statement of the – of the Committee's procedures.

Let me say this, the Bill of Rights Committee filed its brief amicus rather late, gave me very little chance to reply.

I've done as well as I could within relatively few days in getting out a reply to the Bill of Rights Committee.

Now it seems to me that one of the things that we are heading for in this discussion of the case is a question as to whether the Bill of Rights Committee is correct in suggesting, that as to this particular type of investigation in to the conduct of a particular individual, the rules which ordinarily apply to trial type hearings should apply.

Now, our --

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: That judicial process can be available if on the facts that's presented -- a showing has made to the Court with such a judicial proceeding as warranted.

I don't see anything in the New York law that prohibits that, even though Jersey needs to have a specific provision.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Yeah, that's right.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: That's right.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: That's right.

Unknown Speaker: [Inaudible]

Justice John M. Harlan: What you are saying, I take it Mr. Cohen.

As we examine this record which is referred to, which I understand is in the clerk's office, the question we have got to decide is whether either in 1948, 1960 the Appellate Division abused, violated a due process by denying a hearing on the basis of what was presented to it?

Mr. Daniel M. Cohen: That's right.

Justice John M. Harlan: Isn't that the only thing in this case?

Mr. Daniel M. Cohen: That's right.

Justice John M. Harlan: And we got to look at the record, now where is the record?

Mr. Daniel M. Cohen: The record is on file in the clerk's office.

Justice John M. Harlan: How big it is?

Mr. Daniel M. Cohen: It's been stipulated between the parties that these papers which were the original papers can be examined by the Court.

I have summarized in this completely as I can.

Justice John M. Harlan: I noticed that.

How big is the record?

Mr. Daniel M. Cohen: Pardon.

Justice John M. Harlan: How big is it?

Mr. Daniel M. Cohen: Oh!

I would say that this no higher than these two stacks of papers.

They --

Justice John M. Harlan: And I would like to ask another question if I may?

I am puzzled by this amicus brief.

Is there a representative of the Bar Association in the Court Room?

Mr. Daniel M. Cohen: There is no represent -- I gather, they were allowed to file a brief, but not to argue.

Justice John M. Harlan: Do you know what the -- there seems to be a difference of view between the Committees on some subjects in relation to this amicus brief and I can't put my finger on what the difference is?

Mr. Daniel M. Cohen: Well, they have said it's far from their brief.

I haven't had any greater advantage then, Your Honor, in being able to find out exactly where the division lies in the Committee.

As a matter of fact, my information up until about two to three weeks ago was that they were not likely to file a brief in connection with the case.

Apparently, there was a last minute switch, a brief was filed.

The brief is addressed primarily as I can see it to this trial-type hearing problem.

They -- if I can go back to a period say about 35 years ago, when I studying with Mr. Justice Douglas at Columbia Law School, I might say this, at that time I learned not to over generalize and I think that --

Justice John M. Harlan: That's an old fashion trade.

Mr. Daniel M. Cohen: Pardon?

Justice John M. Harlan: That's an old fashion trade.[Laughter]

Mr. Daniel M. Cohen: Yeah.

And I should say that the over generalization that might result from the presentation of facts by the Bill of Rights Committee is that because this is a specific type of investigation, a hearing is required.

Now I think if we read carefully what Your Honor said the Second Canningsberg case with Justice Frankfurter has said, or Justice Cardozo said, when he was a Judge of the Court of Appeals for the State of New York, McCollum case, it will be fairly clear that the tradition in this specific type of investigation has been for the responsibility to be placed with the members of the Bar or the Court to find out and ascertain the information that was available about a particular applicant and if issues arise with relation to them, it seems to me that it is not beyond the procedures that were available without specific rule, without specific statute in New York.

Justice John M. Harlan: Well --

Mr. Daniel M. Cohen: -- For the Court to give any man who says that he has been denied a hearing on any subject and under appropriate circumstances where the Court deems it essential or proper to even require cross examination of persons who filed complaints as to which an adjudication maybe necessary before a determination of character.

Justice John M. Harlan: Or unless things have changed, since I've been practicing in New York, I would suppose that an applicant who had been denied admission to the Bar, where there is a matter of inherent power of the Court or under Article 78, could file a petition in the Court, in the Appellate Division saying that he has been improperly denied admission on the basis of an ex parte report of the Character Committee.

And if the Appellate Division thought there was substance to it, they would appoint a referee to investigate the matter and make a report.

Now, am I incorrect?

Mr. Daniel M. Cohen: You are absolutely right Your Honor, not incorrect.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Yeah.

Unknown Speaker: [Inaudible]

Justice John M. Harlan: The question was [Inaudible]

Unknown Speaker: [Inaudible]

Justice John M. Harlan: I don't know what the [Inaudible]

Mr. Daniel M. Cohen: No what you have here now Your Honor is an application for a leave or permission to renew an application for admission to the Bar, 25 years after it was first denied.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Well, that may have been due to his own awkwardness in applying to the Court.

Justice John M. Harlan: I think it's [Inaudible] sometime.

Unknown Speaker: [Inaudible]

Mr. Daniel M. Cohen: Well, it depends upon timeliness; it depends upon all of the other facts that are contained in the record.

Chief Justice Earl Warren: All of these procedures [Inaudible] or the Court proceedings, everything in [Inaudible] a set of findings on which a [Inaudible]

Mr. Daniel M. Cohen: I don't think that that has been done, but I think that some of these papers indicate that he had a very clear idea of why his application had been denied.

Let me go back to 1943, when he made his application in 1943 to the Court, he said -- so that committee can be properly apprised of the various places at which he has resided since the termination of the prior date, prior proceedings and hearings in 1939.

If instant awareness at that time of the necessity and of giving the committee up-to-date information, which was what he hadn't done originally and he set forth as to the second matter, which he acknowledged had been stressed by the committee, “My failure to state or to explain more fully the nature of certain litigation in which I had participated at or about the time of my consideration before a set committee.

A particular enquiry was made of me by the Clerk and of the Character Committee during such time as to moneys owed by me and litigation pending.”

Chief Justice Earl Warren: Did the Committee make any finding as to --?

Mr. Daniel M. Cohen: The Committee made no findings at that time.

It just supplied a confidential report to the Court and that report indicated all sorts of other conduct between 1938 and 1943.

Chief Justice Earl Warren: Did the committee made any findings for the Court to do anything?

Mr. Daniel M. Cohen: No, no more than this Court did in 1954, when it denied certiorari to this applicant the first time.

This Court denied --

Chief Justice Earl Warren: Is there any difference?

Mr. Daniel M. Cohen: There is a slight difference Your Honor.

Justice Arthur J. Goldberg: [Inaudible] please correct me if I am wrong, [Inaudible]

Mr. Daniel M. Cohen: That's right.

Justice Arthur J. Goldberg: An application was received --

Mr. Daniel M. Cohen: To the Character Committee.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Daniel M. Cohen: Right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Daniel M. Cohen: Right.

Justice Arthur J. Goldberg: In 1943, he made an application for the Appellate Division, is that correct?

Mr. Daniel M. Cohen: Right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Daniel M. Cohen: Right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Daniel M. Cohen: By reason of different conduct --

Justice Arthur J. Goldberg: Then in [Inaudible]

Mr. Daniel M. Cohen: That's right.

Justice Arthur J. Goldberg: In 1954, he filed another application he still did everything, that was wrong, 1954 --

Mr. Daniel M. Cohen: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Daniel M. Cohen: That's right, that's right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Daniel M. Cohen: They have submitted and whether they are or not it depends upon that type of conduct, that's right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Daniel M. Cohen: That's right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Daniel M. Cohen: That's substantially an outline of the record with an omission of the details as to the nature of the misconduct that was involved and without a consideration of whether the conduct that he was guilty of in the first instance, which was clearly reflected in the record not as to the details with -- as to which there might be a dispute was the type of conduct which might be considered by the Appellate Division in connection with his application for leave to renew, as the type of conduct that might be akin to cancerous misconduct or whatever it was conduct that was trivial that might be overlooked, where the man quoted some later date in someway reprieve themselves.

Now they -- and in connection with an application to renewal, I assume that the basic problem before the Court is whether this man is entitled to another opportunity to appeal before our Character Committee at this late date.

That is something that seems to me, which is purely discretionary and which should be left to the discretion of the State Admitting Court.

Thank you.

Chief Justice Earl Warren: Mr. Waldman.

Rebuttal of Henry Waldman

Mr. Henry Waldman: I'll only take a minute or two.

In the first place, I was shocked to hear Mr. Cohen say that under the New York practice, an article what he terms an Article 78 proceeding could have been brought by Willner to test the validity of the action of the Character Committee.

Article 78 applies only to a proceeding to compel an administrative agency to do its duty and has nothing to do.

Furthermore, Mr. Willner at someone's suggestion took his file to Mr. Robert Roger Bryan Hunting, the Secretary of the Bar Association of the City of New York, and Mr. Hunting, two weeks later informed him that there was nothing in that in his record, which justified the denial of admission of the Bar.

And I might say this day Willner was entitled to be admitted at the Bar, when he first applied and in view of his age, in view of the fact that 20 years, 25 years had been lost, the Court should admit him to the Bar, direct his admission to the Bar forth with.

Justice John M. Harlan: Your Honor, excuse me.

Mr. Henry Waldman: Yeah.

Justice John M. Harlan: I was going to ask you perhaps you've answered it and I state, as to what relief you are requesting here, that he be -- as if this Court directed his admission to the Bar or that it'd be -- the case be sent back with the directions that he be accorded --

Mr. Henry Waldman: To send it back for a rehearing before perhaps a hostile --

Justice John M. Harlan: I see.

Mr. Henry Waldman: -- Committee and why the man has gone through hell over the 25 years.

Agony and some of the wild letters that he wrote anybody else, any -- I believe I would go berserk, if I had been treated that way.

This man has been denied justice, just simple and plain justice and if this Court reverses, please do not send it back to the Character Committee for rehearings, but direct his admission on committee.

Thank you.

Featured:

Cohen v. Hurley - Oral Argument, Part 2

Tue, 25 Sep 2012 22:38:03 +0000

Case:

Cohen v. Hurley

Media File:

84_19601215-argument-2

Related Transcript:

84_19601215-argument-2

Transcript:

Argument of Denis Hurley

Chief Justice Earl Warren: Albert Martin Cohen, Petitioner, versus Denis M. Hurley.

Mr. Hurley.

Mr. Hurley, late yesterday afternoon.

Mr. Kiendl asked if he could -- if he could be excused from appearing today and because he had finished his time and I thought it would be commentating my -- I said it would be alright for him not to be present.

Mr. Denis Hurley: I'm sure that'll create no problem --

Chief Justice Earl Warren: Yes.

Mr. Denis Hurley: -- Your Honor, Mr. Chief Justice and -- and members of the Court, may it please the Court.

In connection with Mr. Kiendl's leaving yesterday I said I would readily consent to what he did say that he wished he could stay here to hear my argument so he could keep me within the bounds of fairness but he said if he left, he felt that I would have to even more fair because this Court would move and then protect him.

This is the fifth time that a problem arising in this judicial inquiry in Kings County, New York has come before this Court, the second time that oral argument has been permitted.

Therefore, I -- I mention that because I think therefore I need not dwell on the nature of this judicial inquiry or its scope or its purpose.

Indeed, I think Mr. Kiendl yesterday made a very fair summary statement of the background of the inquiry and of the facts in this particular case.

In the light of yesterday's argument by Mr. Kiendl, I think there are just a few points that I would like to touch on and -- and clear up.

One, the Appellate Division of the Supreme Court of the State of New York is the Court that's vested with a plenary power by statute and inherent power as -- as it has been ruled over the admission and the discipline of lawyers.

And in that connection, I would like to say in answer to a question that was asked yesterday that the Appellate Division has nothing to do with the grand jury, nothing to do with any grand jury investigation.

It has no power to impanel a grand jury or to direct a criminal investigation.

That in New York and particularly in the City of New York and Kings County is for the county court which has criminal jurisdiction and is handled by the District Attorney who is an independent elected public official and not strictly subject to the Appellate Division.

Chief Justice Earl Warren: Does the District Attorney play any part in these matters?

Mr. Denis Hurley: In -- he -- he -- even before this judicial inquiry started, the District Attorney was conducting on his own a so-called ambulance chasing investigation into corrupt -- alleged -- allegedly corrupt lawyers.

That's absolutely independent of the judicial inquiry.

Chief Justice Earl Warren: He -- he wasn't present at any of these hearings or --

Mr. Denis Hurley: At -- at --

Chief Justice Earl Warren: -- took no part?

Mr. Denis Hurley: None.

As a matter of fact, he -- he's -- he's conducted his own investigation proceeded against lawyers on his own.

And then in some few instances on the recommendation of the Justice presiding at the judicial inquiry, the Appellate Division has referred some of these matters arising out of the inquiry to the District Attorney for possible criminal proceedings.

But once he gets in the hands of the District Attorney, we have nothing to do with it.

As a matter of fact, all the judicial inquiry does is investigate and then the Justice presiding reports to the Appellate Division and the Appellate Division either takes no action or it recommends disciplinary action or it recommends criminal action in which event the matter goes to the District Attorney and then it's entirely up to him.

So that there's no investigation as such by us into crime.

That's in another problems.

The Appellate Division Inquiry called the judicial inquiry here is mainly into so-called "ambulance chasing" in the all accepted sense of that term and it's into unethical conduct of lawyers violation of the rules of court which prime facie constitute professional misconduct, inquiry into the Canons of Ethics as to whether there's been any violation and only incidentally into crime.

I'll come to a case later, the leading case in New York on this matter People ex rel. Karlin against Culkin where the opinion was written by Chief Judge Cardozo.

And he points out the distinctions between the judicial inquiry and a particular investigation into crime.

In other words, sometimes, we hid upon crime but most of the offenses are less than criminal, less than penal.

Now, the next point that was raised yesterday is the question of the ground upon which this lawyer predicated his refusal to answer.

Now, the refusal of the attorney in this case to answer questions was grounded upon the state constitutional privilege against self-incrimination.

That's Article 1 Section 6 of the New York State Constitution and not under the Fifth Amendment of the Constitution of the United States.

Justice John M. Harlan: I thought he raised both, Mr. Hurley.

Mr. Denis Hurley: No.

Well, he -- he raised -- if Your Honor would care to look at the record, page 61 and 62, there's the whole answer of the lawyer to the petition for the discipline.

And on page 61, he answers the -- the petition which contain the specifications by admitting the first 22 paragraphs of the petition.

He denied paragraph 23rd which is the paragraph where we say that by his refusals to answer, he breached his inherent duty as a lawyer.

He wasn't candid and frank with the Court and he frustrated the Court in its inquiry.

Then he goes on and affirmatively alleges an affirmative defense, which I take to be the soul issue in this matter.

And under that affirmative defense, he pleads his right to self-incrimination under this New York State Constitution.

That's the top of page 62.

He cites the cases of the Court of Appeals up to that time that he relies on and then he says that there's been a denial of due process to him in violation of his rights under the Constitution of the State of New York and under the Fourteenth Amendment of the Constitution of the United States, claiming also a penalty hardship and forfeiture and also the last paragraph that the right to practice law is a right of liberty and property protected by the Fourteenth Amendment of the Constitution of the United States.

Nowhere is there any allegation either in the pleading or in the testimony of -- of the Fifth Amendment.

And also in answer to a question yesterday, we do not investigate federal crimes.

This is a state inquiry by the Court and there's no such claim of federal crimes asserted anywhere in this case.

Now, on -- on that score and in opposing the grant of certiorari in this case, we conceded that the petitioner had asserted the claim of depravation of due process under the Fourteenth Amendment.

But, as I've said, he made no claim under the Fifth Amendment.

The Court of Appeals in its amended remittitur conceded also petitioner's assertion of depravation of Fourteenth Amendment due process but held that his rights had not been violated.

Therefore, in opposing the grant of certiorari in this case, we argued one, that the non-federal grounds upon which the New York courts rely were entirely adequate to support the final order of disbarment and two, the petitioner's claim of depravation of Fourteenth Amendment due process is insubstantial.

So that the question that was actually resolved here, as I see it, as the opinions of the courts, I think, very clearly demonstrate, the question that was actually resolved was whether there was any conflict between the New York statute namely Section 90 of the judiciary law pertaining to disciplinary proceedings of lawyers and the provision of the New York State Constitution against self-incrimination.

That was the soul question that was determined by the courts of New York.

Now, in this connection, I would like to emphasize because I think this is a question that's related to some of the other matters that have been before this Court and were argued only yesterday, Anastaplo and Konigsberg that in New York, the underlying question in this case was decided 32 years ago in 1928 by the Court of Appeals and that's the opinion I referred to a minute ago by Chief Judge Cardozo where a lawyer was held in contempt of court for refusing to answer proper legal questions in New York's first judicial inquiry.

Now, the lawyer there did not plead self-incrimination but he attacked the whole judicial inquiry.

He said that there was no power in the Court to conduct such an investigation into lawyers and that there had to be charges -- complaints and charges and so on but a general preliminary investigation, he claimed, could not be conducted.

So therefore, he refused to be sworn and he refused to testify.

And he was held in contempt for refusing, the bare refusing to testify in that landmark case.

Justice Potter Stewart: It wasn't a disbarment case, was it?

Mr. Denis Hurley: No, this was -- this arose in the preliminary investigations.

Justice Potter Stewart: (Voice Overlap) --

Mr. Denis Hurley: The lawyer was called as a witness.

He refused to talk.

Justice Felix Frankfurter: Mr. Hurley --

Mr. Denis Hurley: Yes, Your Honor.

Justice Felix Frankfurter: -- Judge -- Judge Fuld refers to is the Culkin case, which all of us New York lawyers well know in saying that their -- that cooperation is a requisite because the lawyer's duty was subject to his right to claim privilege.

Mr. Denis Hurley: That's true, Your Honor, but there, the lawyer hadn't claimed it so it seem to me that that was unnecessary to the decision --

Justice Felix Frankfurter: Well --

Mr. Denis Hurley: -- but -- but I go further even though it was probably unnecessary because it hadn't been claimed.

Nevertheless, Judge -- Chief Judge Cardozo did say he had to answer subject to his privilege.

Justice Felix Frankfurter: The reason that I put it to you is because that case -- in that case, he laid out a rather comprehensive view.

Mr. Denis Hurley: Yes, indeed.

And -- and I -- I think I -- I like to, if I may, come to it in order but --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Denis Hurley: -- to say now in answer to your question, Your Honor, that I think that our case is perfectly consistent with that case because the Court made a distinction between the lawyer coming as a witness as a citizen and as a lawyer.

And as a citizen, he could invoke his privilege but as a lawyer, since he refused to obey the mandate of the Court to answer its questions, he forfeited his -- his membership in the bar.

In other words, the -- our case is really an extension, therefore, of the Karlin case and I think perfectly in line with it and perfectly consistent with the Karlin case.

But I did want to --

Justice Felix Frankfurter: In Culkin, you might also say, of course, that's a New York State question.

Mr. Denis Hurley: Yes, indeed.

Justice Felix Frankfurter: I mean that -- even assuming -- even assuming that they could -- Chief Judge Cardozo's statement, they're literally.

He was talking about the claims that could be made under New York's -- under the New York --

Mr. Denis Hurley: Under New York law and under New York State Constitution, yes, indeed.

Justice Felix Frankfurter: But federal question didn't come into play there at all, did it?

Mr. Denis Hurley: No, it wasn't -- it wasn't in the case.

But I think it's most interesting in the light of the claim that's made here that there, we have the law on the refusal of a lawyer to talk to the Court that admitted him and the Court that has disciplinary power over him in -- in its investigation into the conduct or misconduct of lawyers that there, we have that case which has been the law of New York for 32 years.

But not only that, Judge Cardozo, in that case, as Mr. Justice Frankfurter has indicated, and we all well know, he traced the history of the Court's supervisory control over lawyers back to the New York State Constitution of 1777.

And beyond that, for over 300 years to England and to the authority of the Inns of -- of Court over lawyers and then the Inns of Court intern visited by the judges and of course, as we know in the history of that, Mr. Judge Cardozo's so-called a scholarly points out even as to the cut of the beard and -- and the clothes that the -- the lawyers wore so that the -- the question of the refusal to answer, according to Chief Judge Cardozo, went back over 300 years in England and then was incorporated in the Constitution of the State of New York in 1777.

So that until now, we haven't had a lawyer refused to answer a question put by the Court in an inquiry by the Court into the prevalence of unethical conduct.

But it said now that this case is different because this attorney based his refusal to answer upon the plea of self-incrimination in reliance upon the New York State Constitution only.

That I say is a state question.

But the courts of New York have refused to recognize that claim difference.

And they've held that an attorney's refusal to answer, no matter what the ground, is a breach of the attorney's inherent duty to the Court.

It's an obstruction of the Court's investigation and it's a defiance of the Court's plenary power and control over lawyers.

And that in refusing to answer, the lawyer frustrates the investigation and renders the Court impotent to perform its statutory and inherent responsibilities in the cleansing of the bar and in the disciplining of lawyers.

Now, in reaching that conclusion, as I see it, the courts of New York were meticulous in pointing out that the attorney was not deprived of his constitutional guarantee against self-incrimination.

Indeed, the right to invoke his privilege was upheld and -- and sustained in all three courts of New York that the additional special term at the Appellate Division and in the Court of Appeals.

Therefore, New York ruled that this attorney was a court of the fullest measure of his constitutional guarantee against incriminating himself by his own testimony.

The New York State Constitution guarantees nothing more than self-protection against self-incrimination.

It doesn't guarantee that he may not be subject to indictment, prosecution or conviction through the testimony of other persons nor does the Constitution guarantee that he may defy the authority of the courts in its proper investigation or that he may not be disciplined for remaining silent when it is his special duty as an officer of the Court to speak out forthrightly with candor and frankness in response to the Court's judicial inquiry into misconduct at the bar.

Yes, sir --

Justice William J. Brennan: Mr. Hurley, may I ask now, if he talks a -- his evidence proves to be incriminatory --

Mr. Denis Hurley: Yes, sir.

Justice William J. Brennan: -- he then to indict and prosecute?

Mr. Denis Hurley: Yes, it maybe, Your Honor.

Justice William J. Brennan: It's a rather a dilemma, isn't it?

Mr. Denis Hurley: It is a dilemma.

But the courts of New York have said it's -- it's a dilemma.

Justice William J. Brennan: If he doesn't talk, he is disbarred.

If he does talk, he goes to jail (Voice Overlap) --

Mr. Denis Hurley: Where -- where he chooses -- where he -- where he's -- where he's forced into this choice and he either -- he either uses his right as a citizen and claims his privilege and refuses to talk or he speaks up as a lawyer should, as a lawyer should and he takes whatever punishment is coming to him on the basis of what he has done.

That seems to be -- to be the result of the -- of the attitude of the courts of New York on the subject.

In other words --

Justice John M. Harlan: What do you -- oh, I beg your pardon.

Mr. Denis Hurley: Yes Your Honor.

Justice John M. Harlan: What do you conceive to be the federal question of the Court of Appeals that is passed on or submitted to?

Mr. Denis Hurley: Well, I didn't want to say anything about that.

I -- I doubt if there's a federal question here.

We vigorously oppose the grant of writ.

Justice John M. Harlan: Could New York repeal its privilege, state privilege against self-incrimination consistently with the Federal Constitution?

Mr. Denis Hurley: Could it repeal it, Your Honor?

I think so.

I think it could.

I think that is a problem that has been discussed and talked about.

I don't think it has to be part of the State Constitution.

Justice Felix Frankfurter: It wasn't until relatively --

Mr. Denis Hurley: That's right, Your Honor.

Justice Felix Frankfurter: -- recently.

There is (Inaudible) I forgot to what within --

Mr. Denis Hurley: I -- I don't --

Justice Felix Frankfurter: -- not until (Voice Overlap) --

Mr. Denis Hurley: I don't recall the year when it --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Denis Hurley: -- was put in but it hasn't always been -- it hasn't always --

Justice Felix Frankfurter: Not only --

Mr. Denis Hurley: -- been in -- in the Constitution.

Justice Felix Frankfurter: -- not only within my -- my lifetime which is an age but -- but much more recently within the lifetime of (Inaudible)

Justice William J. Brennan: Well, still isn't constitutional in my (Inaudible)

Mr. Denis Hurley: In New Jersey?

Is that so?

I didn't know that.

Justice Felix Frankfurter: But Mr. Hurley, in answer to your -- in answer to Justice Harlan's question --

Mr. Denis Hurley: Yes, Your Honor.

Justice Felix Frankfurter: You don't think there's a federal question there.

Mr. Denis Hurley: I -- I think --

Justice Felix Frankfurter: You mean -- you mean that -- you don't think there's a solid federal question but the -- the Court of Appeals said we did consider whether what was done here violated due process under the Fourteenth Amendment.

In other words -- did Mr. Kiendl argue the case there?

In other words, he raised that question that under the Fourteenth, it's violative of a due process because -- possibly because of the dilemma to which Justice Brennan called attention.

They said we did consider whether putting a lawyer in that kind of crouch, that kind of dilemma is -- comes within the general conceptions of due process.

So what you mean is you don't think there's a substantial federal question.

Mr. Denis Hurley: That's -- that's my point.

Justice Felix Frankfurter: But the case comes here on the most authoritative pronouncement by the Court of Appeals that they --

Mr. Denis Hurley: Well, my --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Denis Hurley: -- well, my problem is whether the -- whether the Court of Appeals simply said as -- as they framed the question in the -- the remittitur, they -- they talked about the appellant having asserted that there was like a Fourteenth Amendment due process.

In other words, there was a claim made --

Justice Felix Frankfurter: And they passed --

Mr. Denis Hurley: -- but --

Justice Felix Frankfurter: -- on it.

Mr. Denis Hurley: -- but clearly did they pass out of the something substantial or -- or not substantial.

Now, if --

Justice Felix Frankfurter: That's why you're arguing but they did say --

Mr. Denis Hurley: But the -- the language --

Justice Felix Frankfurter: -- we have before us the federal question.

We passed on it by rejecting it.

Mr. Denis Hurley: That's right.

Now, I -- I -- frankly, I'm -- I -- I have -- I think this case is of such importance not only to New York but to every State in the union that -- that I've no -- no hesitancy and -- and very readily asking this Court to pass upon on the merits.

I think -- I think that's the attitude of the New York courts.

Now, Judge Baldock said that this was one of the most important questions involving lawyers that have ever arisen in New York.

And until this case is settled, we will have many, many problems in judicial inquiries and otherwise.

Justice Felix Frankfurter: Well, they can't be very heavy.

What you said a minute ago is correct.

This is the first lawyer who refused to answer.

Mr. Denis Hurley: He -- he is the first but immediately upon his refusing, 41 others followed him [Laughter].

So we have -- we have the cases of 41 other lawyers really writing on the results of this case.

Actually, we had -- I think to date, we have about 98 who have -- who have pleaded the privilege.

The second to the lawyers come the doctors.

20 or 42 -- 42 lawyers, 20 are doctors and the others were layman, insurance brokers, insurance employees claims justice and so on.

Justice Felix Frankfurter: They are -- they are all subject to the schedule of peace that the right provision has promulgated, aren't they?

Mr. Denis Hurley: The --

Justice Felix Frankfurter: But --

Mr. Denis Hurley: -- the attorneys?

Justice Felix Frankfurter: Yes.

Mr. Denis Hurley: Oh, yes.

Justice Felix Frankfurter: I mean that -- that's settled now.

Mr. Denis Hurley: Resolved in this Court and --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Denis Hurley: -- well, it denied certiorari in (Inaudible) yes.

Justice Felix Frankfurter: Anyhow.

That means the Court of Appeals' decision stood.

Mr. Denis Hurley: That's right.

Justice Felix Frankfurter: That they're all subject to it.

Mr. Denis Hurley: All subject to it.

And -- and as a matter of fact that they have just -- that was in the First Department and their rule has now been made uniform in the Second Department, so we have the same rules in -- in both Departments now.

Justice Felix Frankfurter: The -- as I remember that the inherent charge more than 50% unless in an ad hoc proceeding, the circumstances plead the Appellate Division to make an exception, is that right?

Mr. Denis Hurley: That's right.

They -- they --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Denis Hurley: As a matter of fact, they have a -- excuse me, Your Honor.

They have a sliding scale in New York or either take the sliding scale or you take a flat one-third.

You can take a flat one-third, a contingent fee or go according to the sliding scale.

Justice William J. Brennan: May I ask, Mr. Hurley.

This -- perhaps it's not really irrelevant but -- that his -- does the practice in New York automatically to disbar on conviction of a crime?

Mr. Denis Hurley: If it's a felony.

Justice William J. Brennan: Of a felony.

Mr. Denis Hurley: If it's a conviction of a felony, it's automatic disbarment.

Justice William J. Brennan: And I take it some of these questions might have -- it leads to conduct which would have constituted felony.

Mr. Denis Hurley: Possibly, Your Honor.

As a matter of fact -- in -- arising from our proceeding, I think there were probably five or six cases now in four years.

One lawyer was acquitted and later disbarred and disciplinary though.

Two lawyers got six months in jail.

They pleaded to a misdemeanor and others pleaded guilty to felonies and consented to disbarment.

So six were dispose up today in four years in that way.

So that, you see, the great majority of the cases involved are something other than crimes.

And that, of course, we have the -- the problem of -- of whether -- in the -- in the criminal courts of having to prove it beyond a reasonable doubt whereas we have the -- the weight of evidence, the preponderance of the evidence in the disciplinary proceeding.

I should like to point out and I think this is important here is -- whether in some of these other cases that this case, as I conceive it, points up too sharply conflicting views of the role of the lawyer in American society.

And I think the real question that's presented in this case involves the true status of the American lawyer or if you -- if one would prefer more modern current Madison Avenue style, the true image that should be projected of the lawyer, by the courts and by the bar, not the lawyer of fiction or TV or movies or the comics but the -- the real honest to goodness image as lawyers and -- and judges know he should be.

In other words, is he just a plain American citizen with no more obligations or no additional burdens or responsibilities, and the ordinary citizen?

Is he only as he's claimed here by the opposition only a bear licensee of the State or is he something more?

Now, I think this Court and the courts of New York have indicated more and more that the true role of the lawyer is more in the nature of a trustee.

And I think if that's considered for a few moments, you'll see how -- how that works out with every element as I -- as I conceive it of -- of a trust involved here.

And it seems to be the judgment of the -- of the courts of New York that when a lawyer, as I said before, is called to the witness stand, he comes there in two distinct capacities.

First, as a citizen, with all the rights and privileges and duties of a citizen, but beyond that, he appears as a lawyer with all of the rights and privileges of the lawyer and also all of the stern duties and solemn responsibilities of his lawyerhood.

So that we think he's -- and the courts of -- of New York have said and this Court has repeatedly emphasized in -- in various opinions involving lawyers that he's more than a -- a mere licensee and more it came through a trustee.

So that we -- we work that out in this way.

That when a lawyer is admitted to the bar.

He presents himself for admission and he is admitted to the bar, the effect seems to be that the court, the admitting court is representing to society at large that here is an honorable man worthy of the public's trust and confidence, worthy to uphold the honor of the profession and as its officer, the dignity of the court.

So that when a lawyer takes the oath, as happened here this morning, takes the oath, whether in this Court or any other court in the land, he is held out and certified by the admitting court as a person in whom the Court places its special confidence and in whom the public may trust.

That certainly consistent with what Chief Justice Hughes said some years ago that the practice of the profession of the law is the privilege administration of a public trust.

And I think it's upon the basis of that -- of that certification, that representation by the Court that in every specific case that the lawyer handles, his clients confined the most precious causes to him.

They trust in him even though they never met the lawyer before and they put in his hands because they trust him on the representation by the Court and holding out by the Court, they entrust him with the defense of their properties and their liberties and their lives.

And in a broader sense, may I suggest to this Court, in a broader, in a more general sense, as I conceive it, every lawyer is also a trustee of the vast rich heritage of the common law, of all of our statutory law and of all that the law stands for.

So that I submit that upon admission, a lawyer in reality becomes a trustee of the law and the Court appoints him as such.

You have a trust grieves.

You have the great body of the law that was so eloquently described by Justice Holmes.

You have the public as the beneficiary.

You have the Court as the creator or the secular of the trust.

Now, you have a lawyer as the trustee and he's called in by the very court that admitted him and it has the power to discipline him.

He's called in to give an accounting of his stewardship.

He may refuse to answer, that we conceive.

He may invoke his privilege and his plea must be sustained if he invokes his constitutional privilege.

But the courts of New York said, in failing to account, for his failure to account, he forfeits his trusteeship in the bar.

And in this case, the Court's decree that petitioner by failing to account for his professional conduct could be stood no longer.

Now, carrying the analogy further, where a court ousts a trustee for refusal to render his account, he comes in, he's told to render his account, whether he is a testamentary trustee or whether he is a trustee of a living trust and he refuses to account under a claim of constitutional privilege, I submit, that a claim of depravation of due process has no validity in such circumstances.

Certainly to prevent his removal, the trustee cannot insist that the beneficiaries must -- as this claimed here, must in the first instance prove an affirmative case against him of wrongdoing against the trustee before he must come forward with his account.

And the right to specific charges and prove to confronta -- confrontation on cross-examination of witnesses, I submit, is beside the point where there is an absolute duty in the first instance of coming forward with the true account.

I gather my time is up.

Featured:

Cohen v. Hurley - Oral Argument, Part 1

Tue, 25 Sep 2012 22:38:02 +0000

Case:

Cohen v. Hurley

Media File:

84_19601214-argument-1

Related Transcript:

84_19601214-argument-1

Transcript:

Argument of Theodore Kiendl

Chief Justice Earl Warren: Number 84, Albert Martin Cohen, Petitioner, versus Denis M. Hurley.

Mr. Kiendl.

Mr. Theodore Kiendl: May it please the Court.

This case is here on certiorari to review a decision of the Court of Appeals of the State of New York, which affirmed an order of the Appellate Division in the Second Department of the Supreme Court of the State of New York, disbarring the petitioner from the further practice of the law.

In the Court of Appeals, the opinion of that Court was written by the Chief Judge.

There was one dissent in a separate opinion by Judge Fuld in the Appellate Division of the Second Department where the disciplinary proceeding originates in which had power and control over the bar.

The opinion was written by Mr. Justice Baldock and there was one dissent by Mr. Justice -- Mr. Justice --

Unknown Speaker: Kleinfeld

Mr. Theodore Kiendl: -- Mr. Justice Kleinfeld -- and an indication by the presiding justice in the concurring opinion with the -- the Court's opinions that he entertained some reluctance in reaching the conclusion to go with the majority in that case.

Now, the amended remittitur shows clearly, as we see it, that the federal constitutional question was raised and necessarily disposed off in the Court of Appeals.

Your Honors will see at page 96 of the transcript of record, the Amendment to the remittitur in which it was stated amongst other things that upon the appeal herein, they were presented and necessarily passed upon questions under the Constitution of the United States quoting them and then concluding the Court of Appeals held that the rights of appellant, petitioner here, under the Fourteenth Amendment had not been violated.

Now, our case is somewhat different from the two cases that proceeded and that there's nothing here involving any question about Communist membership, subversive activities or anything of that kind, violent overthrow of the Government by force and violence.

This is a case involving an attorney.

And the facts are virtually uncontradicted and so far as this Court is concerned, we think conceded.

We may draw different inferences from some of the facts but essentially, the basic term and the facts in this case are undisputed.

And if I may, I'd like to briefly summarize them.

The petitioner was admitted to practice in the Supreme Court of the State of New York in the year 1922, almost 38 years ago.

He specialized in the practice of negligence law, taking personal injury cases and death cases on contingency basis.

And he continued that practice right up to the time that this disbarment order was entered a year or so ago since it's been stayed by an order of this Court.

Now, in the course of his practice, he was compelled under the rules of that Court improperly to file statements of the retainers that he accepted in these personal injury cases.

If you'll entertain more than five such cases in a year, you had to file written reports with the Appellate Division and this was done -- and this record shows that during the course of a period of five years from 1954 to 1958 inclusive, he had filed some 300 of retainers or an average of some 60 a year in this specialty in which he was engaged.

There came a time when the Appellate Division in the Second Department for reasons that we're satisfactory to it, ordered a judicial inquiry into practices existing in the bar and the borough of Brooklyn, the County of Kings.

Those practices we might call "ambulance chasing" practices for want of a better word.

And the inquiry started in the subpoena duces tecum was served on this petitioner.

Subpoena called for the production of all his books and records pertaining to these retainers.

It also called for his attendants as a witness.

And he attended before there was inquiry which was being conducted by an additional special term of the Supreme Court but had been delegated for that purpose by the Appellate Division of the Supreme Court.

He attended and was asked various questions.

He was asked to produce his books and records including his bank accounts and things of that kind.

He was asked some 60 different questions, touching along and relevant to unquestionably the professional -- his professional conduct in some of these retainer cases.

There's no doubt the relevancy of the question, and no doubt about the propriety of the injury.

But he took the position on the advice of able and experienced counsel.

And in the utmost good faith that under the Constitution of the United States and the Constitution of the State of New York, he was entitled not to become a witness against himself, treated the doctrine -- the privilege of self-incrimination, refuse to answer, refuse to produce these records.

Now, the only answered questions were of this nature and I summarized them from the respondent's brief, page 7.

The only answered questions related to the identity of his law office, partners and so forth to his possession of the record, to any possible destruction of the records to his bank accounts, to his paying off police officers, caught or prison employees to his paying insurance company employees and promising to pay the laid persons 10% of recoveries or settlements.

That was the type of questions that were answered, that he refused to answer.

Justice Felix Frankfurter: Mr. Kiendl, you indicated that these questions -- that the claim was partly based on the Fifth Amendment and not merely the -- the New York privilege against self-incrimination.

Mr. Theodore Kiendl: No question about it at all.

It was based --

Justice Felix Frankfurter: Would you mind just -- just reading his under faith?

I don't think quite see that these -- on the faith of the subject matter of these questions related to -- to potential federal offenses.

Mr. Theodore Kiendl: In the Amendment to the remittitur, if I may quote it rather than attend to paraphrase it, Your Honor, which appears at page 96 with this record.

The statement is made upon the appeal herein.

They were presented and necessarily passed upon questions under the Constitution of the United States.

The appellant asserted that his disbarment based solely upon his reliance in good faith and his constitutional privilege against self-incrimination in a nonadversary proceeding without any substantive charges of misconduct being made or proven against him at a full hearing where the right of confrontation and cross-examination of witnesses and full and ample defenses would be available was violated of due process of law under the Fourteenth Amendment and that his disbarment based on his assertion in good faith of his constitutional privilege against self-incrimination which the Appellate Division held constituted or refusal to cooperate with the Court and a breach of the Canon of Ethics violated his guarantees of due process of law under the Fourteenth Amendment.

The Court of Appeals held that the rights of appellant under the Fourteenth Amendment had not been violated.

Justice Felix Frankfurter: Well, is that -- am I to infer from that that you are arguing or at least assuming that the Fifth Amendment is to be read into the Fourteenth?

Mr. Theodore Kiendl: No, if Your Honor please.

Justice Felix Frankfurter: Then I repeat my question.

On the face of it, the things that you -- the subject matter of the questions that you read from -- on page 7 of the respondent's brief, they don't obviously seem to me to relate any danger of being prosecuted on any federal law.

Mr. Theodore Kiendl: Well, if Your Honor please, our position is this.

That the question of which is essentially presented here is this.

Did the State violate due process?

In summarily, disbarring an attorney from the further practice of his profession, who relies on his constitutionally guaranteed right against self-incrimination --

Justice Felix Frankfurter: Given by --

Mr. Theodore Kiendl: -- in good faith.

Justice Felix Frankfurter: Yes.

Given by the State Constitution as well as the Federal Constitution.

Mr. Theodore Kiendl: Unquestionably, Your Honor.

Justice Felix Frankfurter: But -- and my -- well, I can understand that -- that he brings himself under jeopardy under the state guarantee -- against self-incrimination.

I don't -- under faith that they see how he comes within the scope of the protection of the Fifth Amendment.

Justice William O. Douglas: Did some of this relate to bank -- bankruptcy proceedings or bankruptcy matters?

Mr. Theodore Kiendl: Not at all.

Entirely, the personal injury negligence cases --

Justice Felix Frankfurter: Alright.

Mr. Theodore Kiendl: -- which he specialized.

We submit that that is the one and the sole question and the narrow question presented to this Court.

And we submit that due process was violated in this case by the arbitrary exercise of the courts of his right to censor, suspend, disbar and so forth members of the bar.

Now, we must admit very frankly to this Court that neither the respondents nor the court below agreed with us on a court that that was the simple question presented.

The court below took an entirely different view of it in one which we think was wholly unjustified.

It was arbitrary, that was capricious that one had no rational basis to support it.

The court below -- the respondent below went off into this line of reasoning.

Say they, "Here is a lawyer who, from the very time that he's admitted to practice law, owes the absolute and vital duty to the court, to the public, to the bar of frankness and candor in full cooperation, that he's entitled to every constitutional right including due process under the Fourteenth Amendment, that when he took the position that he will refuse to answer on the ground of self-incrimination, he was perfectly within his rights.

He has the absolute right.

He has the perfect right to plea that privilege.

But he did so at the parallel, at the danger of committing professional suicide, that's what it was tantamount to.

Of course, I'm familiar with the decisions of the courts.

The disbarment of an attorney is not punishment.

I'm familiar with the fact that it's not a penalty of forfeiture in the accepted sense.

But the consequences to the disbarred lawyer, is just as bad as if he cuts his own professional growth.

Now, they say that the attorney who comes before a judicial inquiry into ambulance chasing and refuses to answer this type of question does not possess the character and fitness to the requisite for admission to the Bar in the State of New York.

And that his complete cooperation must be continuously given as long as he remembers -- remains a member of that profession.

We think the situation has summed up succinctly and completely in one sentence of the dissenting opinion in the court of original jurisdiction.

Mr. Justice Kleinfeld there stated, and I read from page 96.

I'm afraid I have the wrong page, Your Honor.

I'll find it in just a minute.

Sorry, it takes so long.

Justice Felix Frankfurter: Go ahead.

Unknown Speaker: It begins at 77.

Mr. Theodore Kiendl: 77?

Unknown Speaker: Yes.

Mr. Theodore Kiendl: Yes, it should be page 77.

And I have it now.

Mr. Justice Kleinfeld there said, at the bottom of the page, "Despite all disclaimers to the contrary, respondent is being disbarred for pleading his privilege against self-incrimination."

And we say there's no escape from that conclusion when this record is read by this Court.

That's the one and the only reason why he was disbarred.

They call it a refusal to answer questions -- but the refusal to answer questions were implicitly the invocation of the constitutional right against self-incrimination.

They are so unutterably and inextricably interwoven that they are substantially one in the same thing.

And to say that a member of the bar may exercise a constitutional right not to become a witness against themselves should be disbarred ipso facto per se for taking that position to us seems to be entirely wrong and it's a denial of due process and an arbitrary denial which warrants the intervention of this Court to correct that situation.

Now, what do they say about the consequences that would ensue?

They predict that dire consequences would happen if a lawyer in the position of this petitioner were permitted to standby, refused to answer questions, refused to produce records that it would hobble and prejudice and impair the possibility of the Court through its duly accredited agent, the Supreme Court additional special time, from cleaning the professional house impertinently from ensuring the non-existence of illegal practices, unethical practices that this Court would be stopped, powerless, impotent is the word that they used in once sense.

We say that's not at all so.

And that's merely driving a red herring across the trail.

There were two avenues of approach that were available to this inquiry that they could have used and used effectively without going through this summary process of disbarment solely for the exercise of a constitutionally guaranteed privilege.

The two things they could've done was this.

When he was called before the Committee -- I'm sorry, I said Committee.

I was thinking of the last case, called before the -- the inquiry.

He was told that this was not an adversary proceeding, that he was not a defendant, that he was not a respondent that he was not being charged with anything.

But that, the inquiry had in its possession information which indicated his participation in professional misconduct, that's what he was told.

And when he was confronted with that information, he took the position he did take.

Now, if the inquiry had that information and it was available, they were empowered and authorized and had full authority to go along with the proposition of bringing a disciplinary proceeding against the petitioner, trying it in use -- usual way and plenary fashion giving him all the safeguards that he was entitled to under the Due Process Clause and protect the court, the bar and the public against these very dire consequences that they have predicted to be otherwise in the suit.

But they had an even more important possibility.

In connection with the inquiry that was being conducted by this addition of special time, they were parallel with that inquiry, grand jury proceedings.

And in the grand jury proceedings, this petitioner could've been called by serving him with a subpoena to appear before a grand jury and compel to answer questions of the very character which were asked in -- at this inquiry, compelled to produce the very documents.

Would he -- they asked him to produce under the subpoena duces tecum at the inquiry.

And if he refuse to answer those questions and refuse to produce those documents, under the law of the State of New York beyond any doubt, he would've been in contempt if he refused to answer.

He would've been subject to imprisonment.

He would've been subject to disciplinary process.

Justice Felix Frankfurter: He couldn't have -- could he not have invoke the same privilege before the grand jury -- in refusing to answer grand jury question?

Mr. Theodore Kiendl: He could, Your Honor, but if the grand jury gave him complete immunity as they did and do, then he was in the position that I've outlined.

Justice Charles E. Whittaker: Well, do you think is that to argue, sir -- is -- is that to argue that the grand jury maybe used for the investigation of civil manners?

Mr. Theodore Kiendl: This wasn't really a civil manner and they accept the sentence, but in any event, the grand jury was used in this very investigation, in this particular matter, not as against this particular petitioner but as against other, and we cite the case that I'm coming to later, In re Cioffi, I think it's pronounced, C-I-O-F-F-I, where the grand jury did ask questions to the man who was somewhat in similar situation.

Justice Charles E. Whittaker: You don't argue that the bar in cleaning its house, its own house, may resort to grand jury proceedings, do you?

Mr. Theodore Kiendl: We maintain that under the situation that existed in this case, this particular inquiry set up by the Appellate Division whom we're dealing of an additional special time, had the right to be paneled the grand jury to make such investigation that was necessary and that it did serve in this particular situation in cleaning its own house, in awarding his dire consequences and continue ambulance chasing, solicitations, payment of fee, (Inaudible), and things of that kind.

I'll mention that case a little later on if I may Your Honor but I'll try definitely not to forget it.

Now, if those disastrous consequences were not ensued, we realize that we're not using lawfully expression home free at all.

We're still met with the line of cases in this Court, seem so extensively argued both orally and in writing in the last two or three years.

I refer to the line of cases beginning with Lerner, running through Bilo -- Beilan, and Nelson, and Globe, and cases of that character.

All those cases had been argued today, cases that arose under states statutes or constitutions.

There, the refusal to answer, were despite statutory legislative enactments requiring the employees, the public employees to give answer to those questions at the pain of dismissal.

And we say that they're radically different.

It's been argued here this afternoon from the situation involved so far as an attorney is concerned.

And we not only say that, but we say there's respectable authority sustaining it.

We think it's implicit in the decision of this -- this Court in those very sharply divided opinions that the basis, the inherent basis of the decision sustaining the dismissal of the teacher, of the policeman, of the subway worker was all because of the relationship of master and servant, employer or an employee.

And we cite three cases that we think squarely support that from other courts.

First, we cite the case, Supreme Judicial Court of Massachusetts where that Court was asked by the Legislature of that State to render an advisory opinion I'm about to propose about the constitutionality of the proposed bill that made it mandatory, give authority to dismiss teachers, both public and private, if they refuse to answer questions regarding communistic or sub -- subversive activity.

And in that case, unanimous, Supreme Judicial Court of Massachusetts decided that it would be definitely unconstitutional if private teachers were brought into the same category with public teachers.

That -- the two situations were radically different.

And they used the word "perfectly obvious".

It was perfectly obvious that the cases were different.

In the Supreme Court of Illinois, courts refused to disbar a lawyer who took the advantage of his constitutional privilege and differentiated that case from the case of a policeman, public employee.

And in the famous case of Sheiner in Florida, a situation almost analogous to this case at bar, was presented in the Supreme Court of Florida to refuse to disbar a lawyer who took advantage of one of his constitutional rights.

And after the case was originally decided by the Supreme Court of Florida, this Court decided the cases that I've referred to.

And on the petition of the Bar Association, Supreme Court of Florida was asked to review its decision in the Sheiner case in the light of the impact of the decisions of this Court and it did review its decisions in the former case, its decision in the former case in the light of the decisions here and reached precisely and exactly the same conclusion that this Court's rulings on those cases were not finding on an attorney who took advantage of the constitutional privilege.

There were two more matters that I want to refer to and I should start.

You cite the Gray and Ellis cases in the appellate -- in the Court of Appeals in the State of New York as authority for the proposition that we were entitled to take advantage of our constitutional rights even as a lawyer.

The Court of Appeals in its opinion by its Chief Judge rather apologetically referred to those cases as we read his opinion.

He said this, and I read from page 87.

Justice Hugo L. Black: Page what?

Mr. Theodore Kiendl: 87.

The appellant's reliances on matter of Gray and matter of Ellis, matter of Sullivan and matter of Coffenberg, the four cases in the Court of Appeals in the State of New York.

None of those decisions control us here.

The precise question in Gray and Ellis was as to whether a lawyer who offered to answer all pertinent questions could be compelled in such an investigation to waive immunity and advance a question.

The holding in each case was that the lawyer, like every other citizen, is constitutionally privileged not to answer damaging question.

The difference between those cases and the present one may seem slight but it is enough to permit a fresh examination of the question now directly presented.

We think when Your Honor reads the decision in those cases, you will see that the distinction, the difference was not slight that there was no real substantive difference between those cases and the case at bar.

Here is the situation that has tremendous importance to all members of the bar everywhere.

It's a case of far-reaching effect that's tantamount if this Court sustained the decision of the state courts to a holding that the State can compel lawyers to be witnesses against themselves.

It is tantamount to a holding that a lawyer is not a citizen the same as every other citizen in the United States but as one court below said assumption, a second grade citizen.

Is respondent taking the position?

The respondent taking the position on the other hand that lawyers or super citizens, that they're "citizens plus" is the expression that they used and they're held to a much higher state of answerability or responsibility than the school teacher or the subway employee.

All this regardless of the fact that in this case, so far as this record, it appears, here is a lawyer of exemplary character until this situation came up for 37 years, a lawyer who has an unblemished record at the bar, a lawyer who has been a legislature -- legislator, a lawyer who was running for judicial office and has been endorsed as qualified after these things had happened by three major bar associations of the City of New York.

Now, we say that in that situation, it was nothing short of being arbitrary for the state courts to disbar him for exercising his constitutional rights.

We point out in our brief one case that I wanted to refer to because of a question that has asked me by Mr. Justice Whittaker and that is the Cioffi case.

At page 8 of our reply brief, we discussed that case somewhat.

In the Cioffi case, Cioffi was called before a grand jury, as I have indicated, in connection with this judicial investigation in the ambulance chasing and took the position that he would refuse to answer questions because of the fact that he wasn't granted the full immunity that he was entitled to.

The courts disagreed with him.

And he was held in contempt.

He took the case in the Appellate Division.

The Appellate Division sustained the lower court.

He took it to the Court of Appeals.

The Court of Appeals sustained the lower court and held the grand jury had given him full immunity, everything that he was entitled to by a pleading to defend himself -- the privilege of self-incrimination.

We cite that case as authority for a proposition on that page and the respondent says, "That's not so at all, that we're citing a case which completely demolishes our thesis."

At page 8 of our reply brief we referred to it.

That is the case of In re Cioffi.

And he says that as result of the position taken by Cioffi in that case, the District Attorney was blocked as -- the inquiry was blocked in this case quite the contrary as the fact.

As a matter of fact, in the Cioffi case, when that case went through the Court of Appeals and the Court of Appeals determined that he had gotten full immunity in the grand jury proceeding.

Mr. Cioffi came back and testified and testified fully and I think he's even now testifying in the course of this inquiry so that the dire prediction of what would happen if they resorted to grand jury proceedings in that case, it's just the opposite of what they contend.

Now, we conclude with just this statement.

And I want to attempt to paraphrase the very language of Mr. Justice Frankfurter in the Schware case.

Justice Hugo L. Black: In what case?

Mr. Theodore Kiendl: Schware, S -- I think, it's pronounced Schware, S-C-H-W-A-R-E.

There, Mr. Justice Frankfurter -- I'll find it in just a second.

I seem to have trouble finding the right brief."

To hold as the Court did that Communist affiliation for six to seven years up to 1940, 15 years prior to the Court's assessment of it, in and off itself made the petitioner a person with questionable character is so dogmatic in inference as to be wholly unwarranted."

Paraphrasing that language to the situation in this case, we submit that the whole as the courts below did that the exercise of a guarantee, constitutional privilege in and of itself made the petitioner forfeit his right to practice law is so dogmatic in inference as to be wholly unwarranted.

We submit that this decision below was wrong that it should be reversed by this Court.

Chief Justice Earl Warren: We'll recess now, Mr. --

Featured:

In Re Sawyer - Oral Argument, Part 1

Tue, 04 Dec 2012 20:37:09 +0000

Case:

In Re Sawyer

Media File:

326_19590519-argument-1

Related Transcript:

326_19590519-argument-1

Transcript:

Argument of John T. Mcternan

Chief Justice Earl Warren: Number 326, in the matter of disciplinary proceedings against Harriet Bouslog Sawyer, Petitioner.

Mr. McTernan.

Mr. John T. Mcternan: Mr. Chief Justice, may it please the Court.

We are hereby in certiorari to the Ninth Circuit which affirmed a judgment of the Territorial Supreme Court of Hawaii suspending petitioner, a lawyer, from the practice of law for a period of one year, by virtue of the rules of the local court that suspension is tantamount to disbarment because she cannot get back without taking another examination and passing the character test and I quote from the rule, "As an applicant for admission".

The conduct upon which the matter was tried in the Territorial Court involved two incidents, one was a public speech given in a little hamlet called Honokaa over on the Island of Hawaii.

And the second was a series of interviews of a trial juror after the case in which that juror had served -- had closed and the jury had been dismissed.

Let me -- I will discuss the facts in each of those --

Justice John M. Harlan: How long -- how long after the trial jurors (Inaudible) would take place?

Mr. John T. Mcternan: Five or six days, Your Honor.

Justice John M. Harlan: (Inaudible)

Mr. John T. Mcternan: Approximately that.

We contend that the findings of gross misconduct --

Justice William J. Brennan: What I ask is that -- there's no question the jury has been discharged.

Mr. John T. Mcternan: There is no question about that, Your Honor.

Justice William J. Brennan: Not waiting service with another -- another case.

Mr. John T. Mcternan: This juror had served 10 months, Your Honor, in one case and he was dismissed for good.

We contend that the findings with reference to the Honokaa speech are arbitrary and that the discipline imposed upon her involves an infringement of her rights under the First Amendment.

She was found to have impugned the integrity of the trial judge in the remarks that where attributed to her.

Before getting into the details of our argument on that, let me just give you this much background.

Counsel and her firm -- I mean petitioner and her firm were counsel for the ILWU, the dominant labor force in the island.

And the regional director of that organization along with six others was indicted for conspiracy to violate the Smith Act in a case called United States against Fujimoto.

Petitioner was a counsel of record in that case and had been from a day or two after the indictment had been returned.

She was counsel for this regional director whose name was Jack Hall.

The trial had been under way for approximately six weeks at the time of the speech.

And during those six weeks, the Court had her testimony from a witness named Paul Crouch, one of the three perjurious witnesses referred to in an opinion of this Court in Communist Party against SACB.

This man had told a story about galloping over the Russian steppes in 1927 at a time when defendant in the Fujimoto case, Jack Hall, was 14 years old and another defendant was four years old.

And there had been a series of objections and motions to strike with reference to that testimony, and the testimony had been admitted subject to connection and subject to later a motion.

They had also been contentions made to the Court in Fujimoto that the trial should not be held because of the adverse climate of public opinion and similar matters.

Now, the union had set out a defense committee which was doing the job of raising money for the defense, Jack Hall and other people who might be caught in the then political prosecutions that where going on both in Hawaii and elsewhere.

And this Committee called the Union Defense Committee sponsored the meeting at Honokaa at which petitioner gave her speech.

And it says in the record that this was kind of rapport back to this -- this union membership and some of their friends from the public who attended this meeting.

It should be pointed out that -- as I think I've indicated already, that Honokaa is a small rural hamlet over on another island about 182 air miles from Hawaii over open ocean.

It's a little town in the rural section there, the sugar plantation area.

Now, we -- as I say, we attacked the findings that in this speech, petitioner impugned the integrity of the trial judge as arbitrary.

The issue obviously is from the finding of the Court, and that will be found at page 117 of the record or rather at page 118, the paragraph beginning at the top of -- the continued paragraph at the top of the page.

Issue is, did the language, which he used, impugn the integrity of Judge Wiig?

Now, we concede at the outset, because much of it has made of this in appellant's brief, that this speech was largely all then concerning the Fujimoto trial.

Indeed, the speech was critical of the conduct of the Fujimoto trial.

And in one or two passages, it may reasonably be said that petitioner was critical of Judge Wiig.

Justice Felix Frankfurter: What was the stage of the trial?

Mr. John T. Mcternan: It was in progress, Mr. Justice Frankfurter.

Justice Felix Frankfurter: I mean what -- yes --

Mr. John T. Mcternan: There was taking evidence.

Justice Felix Frankfurter: -- I understand that, but -- but how far was the trial gotten?

What kind of issues was put?

Mr. John T. Mcternan: Well, the trial had been in progress for about six weeks.

The Government was putting on its case.

It was tendering the issue the Communist Party or at least some group within the party was engaged in the conspiracy to overthrow the Government by force and violence.

And as I recall the Fujimoto record, the evidence of this man, Crouch, was put on, remote as it was, back in 1927, speaking as of that date, to show the nature of the Communist Party and then apparently, the -- the burden still remained upon the Government to connect this up with the particular defendants who were standing trial there.

There was a --

Justice Felix Frankfurter: Was the case-in-chief of the --

Mr. John T. Mcternan: This was the Government's case-in-chief, yes --

Justice Felix Frankfurter: I understand.

Mr. John T. Mcternan: -- which went on for many months after.

Justice Felix Frankfurter: Cross-examination of Crouch had not yet began, is that it?

Mr. John T. Mcternan: Well, I think, the cross-examination of Crouch had -- may have been concluded by that time.

In any event, I'm -- I'm quite sure that there had been cross-examination of him by the time that this speech was given.

Justice John M. Harlan: What would Mrs. Sawyer's position in the --

Mr. John T. Mcternan: She was --

Justice John M. Harlan: (Inaudible) chief counsel or she --

Mr. John T. Mcternan: She was one of counsel, Your Honor.

Justice John M. Harlan: -- a principal counsel or what?

Mr. John T. Mcternan: The -- various of the defendants were represented by different counsels.

She and her partner, Mr. Simons, were of record for the defendant, Jack Hall.

Justice John M. Harlan: Did she take a lead in the trial?

Mr. John T. Mcternan: No, she was one of counsel.

She was in the trial court much of the time, much -- some of the time, she was out of court because she had, among the division of labors among counsel, a large responsibility for research work in the preparation of papers and motions, various things of that kind.

But she was an active counsel of record, there's no question about that.

Justice William J. Brennan: Well, but did she actually participate in the examination -- cross-examination of witnesses?

Mr. John T. Mcternan: Yes, sir.

Now, we say that the mere fact, and -- and this is an important aspect of appellants -- of -- if respondent's case, as I understand.

The mere fact that she spoke about this trial, the fact that she was critical of the conduct of the trial or that she was critical of Judge Wiig, do not, of themselves, prove that she impugned the integrity of Judge Wiig more than that is necessary to make out the findings which the trial court asserted at the place of the record I've already indicated.

Let me say and I will review the evidence in some detail in a moment by I do want to make the general observations about it, that I find and I think that the Court will look at that speech inveighed upon any direct or explicit evidence that petitioner impugned the -- the judge's integrity.

There was no casting of any reflection upon his honesty, no charge of corruption or political motivation or abuse of power or willful partiality nor is there any evidence of direct and explicit attack upon the District Court or upon the judiciary generally.

Indeed, the general burden of her -- of her talk is in quite a different direction.

The main thesis of her talk where that the Fujimoto trial was a trial of doctrine involving books and ideas, and that this was bad.

Then in a conspiracy case like Fujimoto, the prosecution is predicated upon an alleged agreement to do something not the actual doing of it that in a conspiracy case there is -- like Fujimoto, there is great latitude in the receipt of evidence of third party declarations and third party conduct, that this latitude was necessary for the Government to make its case, and that the Government was constantly pressing for greater latitude in these respects.

And these characteristics of Fujimoto are not found in prosecutions for the substantive offense and they raise grave questions of vicarious guilt and finally, the thesis that the Government's pretrial propaganda in the FBI methods of recruiting witnesses had cast a -- a heavy cloud of unfairness upon the trial.

Justice John M. Harlan: Am I right in thinking that the actual test of what you said in this meeting is not in the record but a dictated brief, in my recollection, is that it?

Mr. John T. Mcternan: Your Honor, I -- I'm hopefully happy you mentioned that.

I intended to mention that in my preliminary statement.

There is no verbatim account of this speech.

She spoke extemporaneously.

There was a newspaper reporter present who took longhand notes from which he wrote the news article which led to all the fuzz over this.

And there is a -- an enlarged version of his note, which I will come to in a moment.

In addition to that, there is petitioner's own version of what she had said which she gave to Judge Wiig when he asked her thereto after the event.

We -- we rest our position here upon an analysis of the notes of the newspaper reporter and the testimony of the witnesses because we feel that our attack here has to be predicated upon the evidence against us, and we don't ask this Court to resolve conflicts in the evidence.

So that this -- essentially, what I'm giving you now and what I will rest my argument on is the notes of this newspaper reporter which were appended to the opinion of the majority clause, Appendix B and begin at page 573 of the record.

Justice Felix Frankfurter: Well, were there accounts, news accounts of the -- this speech --

Mr. John T. Mcternan: There was --

Justice Felix Frankfurter: -- contemporaneously?

Mr. John T. Mcternan: -- there was a news account, Your Honor, given in the newspaper in Hilo, Hawaii the following day.

Justice Felix Frankfurter: Is that in the record?

Is that in the record?

Mr. John T. Mcternan: Well, the newspaper account is in the -- set out in the opinion of the court below.

It begins at page 559.

Justice Felix Frankfurter: Thank you.

Mr. John T. Mcternan: Incidentally, we attempted to -- to offer an analysis of the -- of the Matsuoka, that's the newspaper reporter's name, notes in our statement of the case and that being is at page 8 of our -- of our opening brief.

Justice William J. Brennan: (Inaudible)

Mr. John T. Mcternan: Yes.

Justice William J. Brennan: Is it not?

Mr. John T. Mcternan: That's right.

Justice William J. Brennan: I mean that's his newspaper account made up from his notes.

Mr. John T. Mcternan: That's his news story made up from his notes.

Justice William J. Brennan: Because --

Mr. John T. Mcternan: Yes.

Justice William J. Brennan: -- I understand that you're argument is going to be premised on accepting what's said in the notes, not in the news articles.

Mr. John T. Mcternan: Not in the news articles.

Justice William J. Brennan: Yes.

Mr. John T. Mcternan: We think that the news article had no place in the case as a matter of evidence.

Justice Felix Frankfurter: You think -- you think a contemporaneous news article by a lawyer in the case -- about the case has no place in the case?

Mr. John T. Mcternan: Well, I think that it does -- this is not evidence, Your Honor, of what she said.

I think that this is -- this is such a matter of interpretation and selection and it's a matter of -- of hearsay, it would seem to --

Justice Felix Frankfurter: I can well understand.

You're challenging the accuracy of that report, is that it?

Mr. John T. Mcternan: Indeed, we are because his own note show that she said many other things and then --

Justice Felix Frankfurter: Well, in addition, you mean additional -- that -- what is -- what is printed is what is printed.

What I want to know is whether you think a speech by a lawyer in litigation in a criminal case then before the jury meets three, printed in a reliable -- in a -- in a newspaper which circulates currently among the population of the people in what Justice Holmes called the impregnating atmosphere, you think that it's irrelevant?

Mr. John T. Mcternan: No, I think it's irrelevant to this case because she was not charged, Your Honor, with interfering with the fair administration of justice, and she wasn't found to have committed any such offense.

Justice Felix Frankfurter: I understand that.

She's up before the appropriate authorities whether she's a fit person to continue to practice without some discipline.

Mr. John T. Mcternan: On a charge that she impugned to the integrity of the trial judge, not on a charge that he -- said she interfered with the fair administration of justice.

I think it's a quite a difference.

Justice Felix Frankfurter: You mean the only -- the pleading -- we are restricted to the pleading that she impugned the integrity of the Court?

Mr. John T. Mcternan: Oh, Your Honor --

Justice Felix Frankfurter: Is that what she -- is that why she was suspended for a year?

Mr. John T. Mcternan: Precisely, precisely.

This is not only a matter of pleading, Your Honor, this is a matter of finding by the Territorial Court at page 118 of the record after looking at the remarks.

Justice Felix Frankfurter: But I -- I can understand the Court's finding that she was a lawyer who impugned the integrity of the Court is something -- the matter of it.

But I was wondering whether that was the charge, that is the complaint that there was any informal complaint against her on which -- to which she had to answer before the appropriate --

Mr. John T. Mcternan: Yes.

Justice Felix Frankfurter: -- bar committee.

Mr. John T. Mcternan: There was a complaint which charged her with impugning the integrity of the trial judge.

This was heard before a illegal ethics committee appointed by the Territorial Court which submitted its report based upon the testimony.

It found that she impugned the integrity of the trial judge.

The Court then issued an order to show cause based upon that report, and she responded to that by filing a return.

Justice Felix Frankfurter: Well, on this branch of your case issued then a -- a very simple one, namely -- as I see it, namely, a charge of impugning the integrity of the Court based on the speech, the speech not prepared or extemporaneously expressed notes thereof taken by a reporter.

Those notes are available.

The notes -- on the basis of the notes, she also printed something in the paper, and all -- one has to do is to read those notes in that paper and see whether that fairly makes out charge of impugning the integrity of a court, isn't that it?

Mr. John T. Mcternan: That's -- that's true.

Justice Felix Frankfurter: Just simple as that.

Mr. John T. Mcternan: That -- it's just simple as that.

Justice Felix Frankfurter: Just meaning a few -- a figure to a writing.

Mr. John T. Mcternan: Well, I -- I think it is reading them very carefully and seeing to what she was saying.

Justice Felix Frankfurter: Well, I -- I assume judges read carefully.

Is that too unfair to you?

Mr. John T. Mcternan: Well, I don't think its unfair assumption applied to this Court.

I think, if I may say so [Laughs] it applies to the courts below because they disagreed with me.

Justice Felix Frankfurter: I'm talking about all responsibility --

Mr. John T. Mcternan: Yes.

Yes, Your Honor.

Justice Felix Frankfurter: -- on that branch --

Mr. John T. Mcternan: Correct.

Justice Felix Frankfurter: -- of the case.

Mr. John T. Mcternan: Yes.

Justice Felix Frankfurter: A very simple one.

Mr. John T. Mcternan: I think so --

Justice Felix Frankfurter: And --

Mr. John T. Mcternan: That's right.

Justice Felix Frankfurter: -- reading these notes and as reported in the paper and comparing it whether it meets the test of the charge, namely, impugning the integrity --

Mr. John T. Mcternan: Well, Your -- I would disagree with your statement so far as reading the account in the paper because I don't think the account in the paper is fair evidence of what she said.

Justice Felix Frankfurter: Well, anyhow, for the -- for the moment suspending that, for myself, when the lawyer in a case, a particular case enmeshed in such emotional fact of this case was makes a speech which is bound to be reported, I think, for myself, I cannot leave out of consideration how she'd be reported the next day unless you made a nice idyllic speech and is then reported in a sanguinary tone.

I think the fact that a lawyer makes a speech, he must anticipate that he'll be reported in the meats of a trial.

Mr. John T. Mcternan: I would agree with Your Honor.

And I would say that we would have a different issue here if petitioner were charged with having interfered with the fair administration of justice in the District Court of Hawaii.

This, she was not charged.

Well then, she was not found guilty of, and she has not been suspended for that reason.

And there is no hint so far as I can find that this entire record that this kind of conduct was ever evaluated by any court below.

Justice Felix Frankfurter: I'm not assuming that --

Mr. John T. Mcternan: Yes.

Justice Felix Frankfurter: -- but I'm assuming that the -- that the way a reporter reports a speech for people to read while a case is on trial itself may be relevant in determining whether what she said was susceptible of being interpreted one way rather than another.

Mr. John T. Mcternan: Well, Your Honor, it seems to me that that embraces so many unknowns as to involve as an extremely serious First Amendment problem.

Justice Felix Frankfurter: Let me ask you this.

Is there a great discrepancy between what he reported in his notes?

Mr. John T. Mcternan: Oh, yes, there is.

Indeed, there is because the report, the report picks out four to five remarks, this is a newspaper article now, picks out four to five remarks just as the Territorial Court did and indeed, just as the court below did and treats them as if they had no context.

And by treating him that way gives them a meaning which, in the context, they do not have, and I want to get to that and -- and discuss that as though this is the heart of our case.

Justice Felix Frankfurter: That happens everyday in the most respectable of newspapers, that the limitations of space, of a -- of interpretation, of construction, of time lead to unsyncopated report of a long speech.

That happens everyday.

Mr. John T. Mcternan: That I -- that I understand but I don't think of --

Justice Felix Frankfurter: You say a lawyer has no responsibility for taking that fact into account.

Mr. John T. Mcternan: I don't think that a lawyer's license hangs by that, Your Honor.

When the charges that she called into question the judge's integrity, I think again becomes --

Justice Felix Frankfurter: You've just said that he left out, not that he put in.

He didn't put it -- did he -- let me ask you this, did he put into a mouth things she didn't say?

Mr. John T. Mcternan: I -- she -- I think that the treatment that her remarks got the picking of sentence here and picking of sentence there resulted in putting into her mouth things she did not say.

Justice Felix Frankfurter: I never thought I had a right to complain when -- when responsible newspapermen have done that to me for a lifetime.

Mr. John T. Mcternan: Your Honor, she is not making a complaint against the newspaper, she is trying to defend her life in -- on his evidentiary showing that's insufficient.

Justice Felix Frankfurter: Yes, I know but I'm saying that's -- it is to be expected that he make an hour speech that a newspaper would print an hour worthy.

Mr. John T. Mcternan: Quite true.

Justice Felix Frankfurter: And that then --

Mr. John T. Mcternan: But if --

Justice Felix Frankfurter: -- take out the hot stuff, that's regulation thing.

Mr. John T. Mcternan: But -- but if the finders of the fact are to determine what she did, they had to look at what she said not what the reporter selected from what she said in order to proof the offense charged against her.

Going back to the general survey of her speech, in addition to the thesis draft, which I have already outlined, let me point out what the subject matter of most of her sentences where, and I used language in quote, "Men in power", "The Government", "FBI Agents", "FBI", "The Government witnesses, Crouch and Johnson”.

Judge Wiig is not named and the District Court is not named.

There is no express assertion of any particular misconduct on the part of -- either the judge or the Court.

Now, there is one statement, and I refer to page 577 of the record which is part of the -- of the Matsuoka notes where she refers to a federal judge sitting on a federal bench permitting Crouch to testify about 27 years ago.

But I submit that this compares the operation of the hearsay rule and the substantive offense cases as against the operation of the hearsay rule and the conspiracy cases.

I think it maybe reasonable to criticize to -- to construed that as criticizing Judge Wiig's ruling, what it does not, it does not impugned his integrity.

It does not go on the question his honesty.

Therefore, in the absence of evidence directly or explicitly impugning Judge Wiig's integrity, it becomes necessary for respondent to rest upon interpretation of the evidence of the remarks attributed to petitioner and the implication is to be drawn from them and therefore, becomes necessary to examine the nature and the quality of that evidence very carefully.

And here, we come, I think, Mr. Justice Frankfurter, to the issue that we have just had.Wiig more and a thousand cases called attention to the untrustworthiness of oral evidence of oral declaration.

This is what we are dealing with here.

And Wiig more points out that the more complicated as the utterance, the more necessary is it to have the full context of what the speaker said and the remarks made with this great precision as possible.

Justice Felix Frankfurter: You don't expect me to disagree with you here.

Mr. John T. Mcternan: Of course not.

But I think that we have to understand the application of that to this case.

Now, there are eight witnesses who testified about this speech.

Their testimony is fragmentary.

It is confined to the remarks charged, which, as I said, were only four or five taken out of this speech as a whole.

They were given nearly two years after the event, and there is no evidence in that testimony to develop a remarkable position or in context.

We have now the notes of Matsuoka, the newspaper reporter, as already been referred to.

Remember if you will that he took original longhand notes from which he wrote his news story.

The news story called cause -- what he called a “to do in court”.

And his city editor then asked him to type up his notes which he did in a slightly expanded form.

Now, he says the slightly expanded form means that he was spelling out ellipses which crept in to his handwriting when he was writing in a hurry.

I do think, however, that the notes have a certain post litem motam quality about them and in any event, they are not verbatim.

Incidentally, the original note that was testified, they were turned over to the FBI when it conducted an investigation which Judge Wiig ordered, and the original notes were never produced in the hearing and the FBI certified that it couldn't find them.

These notes which are in evidence then are sort of two steps removed from the original event having been put together after the to do was (Inaudible) in court, they are not verbatim and they were -- reflect a layman's understanding of fairly complex legal subject matter.

Chief Justice Earl Warren: But these that we do have are the ones of the Bar Association used, is that correct?

Mr. John T. Mcternan: That's correct, Your Honor.

They are in evidence as far as -- so far as the Bar Association's case.

Chief Justice Earl Warren: Yes.

And the one that the FBI did not return were not used by the Association either?

Mr. John T. Mcternan: That's right.

They are gone.

Chief Justice Earl Warren: Yes.

Mr. John T. Mcternan: They -- they disappear.

Let me just say this one more thing about those notes.

On their face, they are not petitioner's words.

They are an interpretation, if you will, a rendering of petitioner's words.

In any attempt to determine what petitioner actually said, the words which she used is in turn an interpretation of an interpretation and therefore, constitutes a weak basis for extending very far beyond what appears on the face of the document.

Now, we get down to those notes themselves.

The core of respondent's case turns on four sentences which it is taken out of context, out of a 30-minute speech and hatch together as if they where a single excerpt.

If the Court will follow me on page 577 of the record, we find that the first paragraph breaks the words “There is no such thing as a fair trial in a Smith Act case.

All rules of evidence have to be scrapped or the Government can make a case.”

Then we go down what represents the page in the original document to another paragraph that says, “There is no fair trial in the case, they just make up the rules as they go along.”

Now, those four sentences do not belong together, they are separated by important contextual material.

They are preceded and they are followed by important contextual material.

Let's take the first sentence, “There is no such thing as a fair trial in a Smith Act case.”

The whole page of the notes preceding that deals with what the -- the notes refer to as a barrage of Government propaganda carried on by the Government prior to this trial making the climate of public opinion unfair to these defendants.

It talks about FBI tactics in recruiting and coercing witnesses not only the service witnesses but to say what the Government once said.

It seems to me, if the Court please, that this constitutes a rational explanation of her statement, “There is no fair trial in a Smith Act case.”

And it doesn't -- and it, at least, is rational as -- saying that she is charging Judge Wiig with deliberately and perhaps dishonestly causing the trial to be unfair.

Justice John M. Harlan: Could I ask you a question?

What is the (Inaudible) notes with reference to the constitutional question (Inaudible) findings of fact --

Mr. John T. Mcternan: We're raising two constitutional questions.

Justice John M. Harlan: (Inaudible)

Mr. John T. Mcternan: We're -- we're raising two constitutional questions, Your Honor.

We claim that the findings that she impugned the integrity of the trial judge are so arbitrary that it constitute a violation of due process.

Justice John M. Harlan: (Inaudible) to review the evidence.

Mr. John T. Mcternan: In -- in the way that that's required, yes, and secondly, that -- to discipline her for this speech infringes her rights under the First Amendment.

Justice John M. Harlan: Assuming that what -- the finding supported (Inaudible)

Mr. John T. Mcternan: Taking this evidence, there is no clear danger to a public respect for the courts made out.

That's our -- that's our position, on -- on the First Amendment, that's our position.

Justice John M. Harlan: (Inaudible)

Mr. John T. Mcternan: I -- I think that -- I -- I think that when we deal with -- well, that I -- I think that -- that we -- we deal here with the -- with the social interest in free speech.

We deal with the social interest in respect for the Court.

We have two weigh this competing interest.

And I think that given this evidence, the balance does not make out a -- a case of interference or -- or reflection upon the public respect and confidence in the Court.

Justice Potter Stewart: Mr. McTernan, I understood you say that your claim is to discipline her for this speech violates her First Amendment freedom.

Mr. John T. Mcternan: Yes, sir.

Justice Potter Stewart: Is your claim as broad as that?

What if the discipline had been imposed because she interfered with the fair administration of justice by getting this speech?

Mr. John T. Mcternan: Well, the -- of course the issue is not here.

Justice Potter Stewart: I know it's not.

Mr. John T. Mcternan: And if I were to argue that issue, I would say that -- that this speech does not constitute an interference with the fair administration of justice and nothing that flowed from it could be reasonably said to what appear with the fair administration of justice.

Justice Potter Stewart: Surely, your lawyer can't -- he's not protected by the First Amendment, is he, from unfairly and improperly and unethically trying his case in the newspapers?

Mr. John T. Mcternan: Well, the question is someone weighted by those adverbs.

Let me --

Justice Potter Stewart: I know -- I know the issue isn't here but --

Mr. John T. Mcternan: But I -- it presents a problem which the case at least suggest if it doesn't actually raised.

I -- I think this, Mr. Justice Stewart, that -- that there are two categories of limitations on the lawyer's right of free speech.

I think that he operates under the same restriction or lay down or indicated in Bridges, Pennekamp and Craig as applicable to laymen as a whole.

I think that in addition, he must -- he must not indulge in speech which causes loss of public respect and confidence in the court, the so-called Canon 1 offense that we referred to the -- the Code of Ethics prescribed by the American Bar Association.

There is another canon that might be involved, Canon 20 which is actually a fair administration of justice situation, the so-called leaking of essential information to the newspaper.

Now, so far as I can find in -- in my research and we've given a considerable attention to this and we wrote our brief in such a way that -- to challenge our adversary to find authorities.

We could find no authorities which say that the limitations imposed upon the lawyer are any greater than this.

Now, I recognize that in weighing all the factors in either one of those situations, there would be additional factors operating where the lawyer's speeches involved on the fair administration of justice cases for example.

It would mean a lot more in the public principles, the lawyer in the case to say that the witness testifying on the stand is a lair.

And that we're prepared to show that he has committed to all kinds of public events and so on.

But I -- I think that we have essentially the same question of law although, the -- the questions of fact could be weighed would be somewhat difficult.

So also, in the -- in the public respect and confidence in the Court, the case has recognized and when a lawyer speaks, casting reflections upon a judge or upon a court, his words weigh more than those of the laymen's.

But again, we're dealing with the -- the same question of law that is slightly different questions of fact.

Now, getting back to this -- to this analysis of the evidence because I think context is all important here with reference to that first sentence about no such thing is a fair trial in a Smith Act case.

Let me suggest also that the paragraphing in those notes is of significant.

If the -- the statement, “There is no such thing as a fair trial on a Smith Act case” were written in Matsuoka's notes as a part of the paragraphs that preceded it, its relationship to that context and the meaning it gets from it would be considerably different.

And this paragraphing is Matsuoka's paragraphing not petitioners.

Now, we come to the second sentence, “All rules of evidence have to be scrapped or the Government can make a case.”

Incidentally, the court below did not find that that remark had been made.

But in any event, the context that follows shows that what she was talking about was the disuse, if you will, of the hearsay rule in conspiracy cases as compared with substantive offense cases.

And therefore, I think that while this may have been in exact language, it may have been fully chosen language, what she was saying is that the conspiracy technique results in depriving people of the protection of the hearsay rule.

And if you go back early in the speech, you'll find that this is the theme that she's struck in various forms through out the speech.

Now, we go down to the next two sentences, “There's no fair trial in the case, they just make up the rules as they go along.”

The context which precedes that, that which I have discussed and the context which follows it again refers to the hearsay rule in the conspiracy cases and also to the problem of remoteness and the Government's pressure in these Smith Act cases to enlarge this scope particularly with reference to remote evidence from case to case.

And this again strikes the theme struck earlier with reference to Crouch in Russia in 1927 when Paul was 13 and Fujimoto was four.

It also, it seems to me, indicates or finds support from or my reading of evidence in this respect finds support in the testimony of one of the witnesses, he was a labor relations manager for one of the plantations who said that the way he understood the significance of the speech, he had tied in to any Smith Act case whether in New York or Honolulu or whatever.

Now, if the Court please, we get down by virtue of the treatment of the evidence in the court below to a pretty fine hair, that pronoun “they”.

The court below, if you'll look at page 561, in setting forth its findings as to what she said puts -- as to paragraph 3, puts the pronoun “they” in quotation mark.

Justice Potter Stewart: What page you on now?

Mr. John T. Mcternan: 561, Your Honor.

Justice Potter Stewart: 561.

Mr. John T. Mcternan: And respondent in its brief says that they meant Judge Wiig because who else was applying the rules of evidence?

Who else was deciding admissibility?

But again, if the Court please, let us look at the context.

We're back at page 577 now.

The context about making up the rules as they go along is one in which he is talking about the pressure of government lawyers in successive Smith Act cases to expand the limits of remoteness in the -- in the receipt of evidence.

And the subject of the next sentence is the word "attorney" and the subject of the sentence which follows is “government” and she's talking about exactly the same subject matter.

But even more, if the Court please, let us look at the testimony of the witnesses who dealt with this remark.

And these were the witnesses now whose testimony was focused just on the remark and not on the context as a whole.

Six witnesses dealt with this remark in their testimony.

Four of them said that the subject of the sentence about scrapping the rules was government, and two of them said “they”.

And I submit that respondent's position and the position of the court below that “they” equals Judge Wiig is bad grammar torn out of context, contrary to the evidence.

Now, respondent's case next rest upon an excerpt which appears on the same page 577, the next paragraph which reads, “Unless we stop this mistrial trial in its tracks here, there will be a new crime.

People will be charged with knowing what is included in books' idea.”

Now, I think that the meaning of this is perfectly obvious that what she was saying is that Smith Act prosecutions continue.

We're going to define as a crime of reading books and having ideas.

The Smith Act will be so applied.

And as a matter of fact, I don't think that's too remote from the conclusion to which these courts reach in the Yates case.

But in any event, I think that it -- this is the only reasonable, rational conclusion that can be drawn from the sentence.

And I think that respondent's construction of it is utterly tortured and unsound.

They say that this sentence means or these two sentences mean that Judge Wiig's conduct of the trial was a crime.

Now, the only way, if the Court please, that that construction could possibly be supported.

It's in the excerpt with the words “unless we stop the Smith trial in its tracks here, there will be a new crime.

And that's cropping the evidence, if the Court please.

Somewhat similar to the irresponsible cropping of the evidence that is conducted by a certain late senator in a hearing conducted across the street a few years ago.

This evidence, if the Court please, does not rationally justify the finding that petitioner impugned Judge Wiig's integrity.

Neither the lower court in its opinion nor the Territorial Court in its opinion attempted to examine these remarks in context or try to ascertain precisely what petitioner said.

Neither evaluated the remarks in the context of the trial in which she was speaking.

Those courts and especially respondent here gloss on to the remarks, words and ideas which are not found in the evidence and which are contrary to the evidence.

And if I may pick out what I think is a -- an agriedous example of this, I refer the Court to pages 57 and 58 of respondent's brief, where these very words, not put in quotes, are treated this way, right from the bottom of page 57 that there could be no fair trial in the Smith Act case because all of the rules of evidence have to be scrapped so the Government can make its case and so on.

Now, there is nothing in the evidence from which the word “because” can reasonably be interpolated in to her remark.

It's not there in the Matsuoka notes, it's not there in the testimony of the witnesses and it's contrary to the context in which she made the statement.

There is nothing in the evidence which says or attributes to her the remark that the scrapping of the rules was so, that is for the purpose of enabling the Government to make its case.

And it's simply a -- a matter of interpretation by interpolation, if you will, which constitutes, it seems to me, an evidentiary force.It's just not there and it -- and it doesn't belong.

I submit that here, the burden upon petitioners' accuses was to establish the charges by clear and convincing evidence, the charge that she had impugned the integrity of the judge.

I submit that under the evidence here, the remarks are at best dubious as an attack upon integrity and in context there as an obvious and rational construction of them quite the other way.

And I submit that the free speech aspect of this case alone require the acceptance of the rational explanation of her remarks when the evidence afford such (Inaudible).

Now, addressing myself to the First Amendment aspect of the case for the moment and again, we're dealing only with the Honokaa speech.

Central to the lower court's disposition of this aspect of the case were these two factors, first, that the speech was given during the pendency of the trial and secondly, by a lawyer of record in the trial.

And our positions for reasons which I've indicated to Mr. Justice Stewart earlier are that these two considerations have no application.

The value of public discussion during the course of the trial has been pretty well spelled out by this Court in the Bridges, Pennekamp and Craig cases.

I would think that a lawyer, given his training and his ability to articulate and to expound, could be a particularly valuable contributor to public discussion when the discussion deals with law and the operation of law, law enforcement technique and so on.

Now, I recognize that there are risks here, and I think Mr. Justice Frankfurter has already indicated them that what is done with the speech in public, in the public prints may resolve in their being some impact upon the fair administration of justice.

But I think that this calls for an even nicer discrimination of the evidence, if the Court please.

That it become --

Justice Potter Stewart: Bridges and -- the Bridges and the Pennekamp cases both involved contempt, didn't they?

Mr. John T. Mcternan: That's right.

Justice Potter Stewart: This case --

Mr. John T. Mcternan: Involving --

Justice Potter Stewart: -- involves a disciplinary procedure --

Mr. John T. Mcternan: Yes.

Justice Potter Stewart: -- of a lawyer, of a --

Mr. John T. Mcternan: Of a lawyer.

Justice Potter Stewart: -- or professional.

Mr. John T. Mcternan: And I don't -- I don't contend that the cases apply foursquare.

I think that they have important lessons to be drawn for purposes of this case that by no means control.

But I think that we should, in -- in approaching this -- the First Amendment aspect of this case, have fully in mind the importance to public enlightenment of discussion during the pendency of the case and the contribution which a lawyer was his -- inform the judgment can make to this public discussion.

Justice Felix Frankfurter: (Voice Overlap) just a lawyer.

This is an informed lawyer during the things that lawyers have done in this country over the beginning, namely, try to enlighten the public.

This is a fellow in a case --

Mr. John T. Mcternan: I understand --

Justice Felix Frankfurter: -- trying a case.

Mr. John T. Mcternan: -- I understand that.

Justice Felix Frankfurter: (Inaudible) of assuming he is just a citizen

Mr. John T. Mcternan: I -- I never assume that in this --

Justice Felix Frankfurter: No, but I --

Mr. John T. Mcternan: -- argument, Mr. Justice Frankfurter.

I --

Justice Felix Frankfurter: (Voice Overlap) you said it.

When I think of this dissenting opinion, the lawyer is just a citizen, and free speech had been formed --

Mr. John T. Mcternan: Well, Judge Pope --

Justice Felix Frankfurter: -- dead files are also important.

They are the basis of our civilization.

Mr. John T. Mcternan: I -- I agree with that, but I don't think that that consideration embargoes the trial lawyer in -- who is in the case from public comment upon the case in which he is engaged.

Justice Felix Frankfurter: All -- so far as I'm concerned, in making features affecting the credibility, the words, the weight, the reliability of what is going on in court while it's going, almost, for me.

Mr. John T. Mcternan: Well, I -- I can understand why lawyers' comment could -- the -- the comment of the -- of the lawyer of record in the pending case could have the kind of impact upon the administration of justice which you described.

Justice Felix Frankfurter: I know in regards to trial by newspapers as an inherent ingredient, as an important course in this country that said the American way of life, for myself, I repudiate it completely and regretfully and sadly that it should be said but that's a part of the American way of life.

Mr. John T. Mcternan: Well, I don't -- I don't find my -- necessary to reach that proposition at all here because I think that a lawyer has the right to go out and talk to members of the public about a case in which he is engaged to point out the serious, social and legal problems which that case posses to --

Justice Felix Frankfurter: And deal the witnesses and their reliability as the weight to be attached and the way the context of the trial is going?

That's what the court rule is for.

Mr. John T. Mcternan: Your Honor, in that, as the evidence clearly shows, whatever he said in those respects were things which he had already been said to the Court were matters which had already been urged to the Court.

Justice Felix Frankfurter: The courtroom is a place from her urging.

Mr. John T. Mcternan: But in any event, as I -- as I said before --

Justice Felix Frankfurter: (Inaudible)

Mr. John T. Mcternan: -- this is not the issue here.

Justice Felix Frankfurter: What is possibly issue here because you go about speaking just speech apart the way answering fixed apart, the way one who speak apart answering speech in the sum total would be that he said some very nice thing about Bouslog.

Mr. John T. Mcternan: Your Honor, I have not fixed the speech apart.

What has been done by my opponents is to pick the speech apart, they take five sentences out of 30-minute speech and say that she attack the -- the integrity of the trial judge.

If you put those five sentences in the context, she didn't attack any judge.

Justice Felix Frankfurter: She didn't say I attack him neither did -- neither did answer the happen in word.

There is skill in speech that may convey the -- the intent as much though as explicit and literal language.

Mr. John T. Mcternan: Your Honor, I think it relies within the right of the lawyer to say that certain rules operate badly and certain rules caused unjust results.

Justice Felix Frankfurter: I think it's his duty to do so far as the public is concerned but not on lawyer in a case, while case is on.

Mr. John T. Mcternan: Well, I -- I understand that position.

All I can say to you is what I have said before that we would face a different case here if that issue had ever been tendered in this case.

It has never been --

Justice Felix Frankfurter: But the complaint isn't as restricted as you say it is.

I've just read the complaint.

Mr. John T. Mcternan: Well, the findings of the court below are -- are as restricted as I say they were.

Justice Felix Frankfurter: The findings of the Committee aren't even as restricted as to that.

I looked at the complaint.

One would suppose the complaint was she impugned the integrity of the Court.

That is not the complaint.

Mr. John T. Mcternan: Well, there's another -- there's another element to the case, this jury -- juror --

Justice Felix Frankfurter: Well, I'm talking about -- I'm talking about this matter, page 3, the complaint doesn't -- isn't restricted of that.

Mr. John T. Mcternan: Well, as Your Honor look at page 118, the findings of the Territorial Court, beginning at the top of the page, the finding is she engaged and participated in a willful oral attack upon the administration of justice in and by the said United States District Court for the District of Hawaii and by direct statement and implication impugned the integrity of the judge presiding therein.

There's other formal language but that's the essence of the finding and that is all that she was suspended for.

Justice Felix Frankfurter: But she certainly attacked the administration of justice in and by the District Court, didn't she?

Mr. John T. Mcternan: No, sir.

I don't think she did.

Justice Felix Frankfurter: You don't think she did.

Mr. John T. Mcternan: No, sir.

I --

Justice Felix Frankfurter: She talked about this case -- she talked about what was going on but that was having an attack upon the administration of justice in that case.

I don't see how you make that up.

Mr. John T. Mcternan: Your Honor --

Justice Felix Frankfurter: What was she talking about, Mr. McTernan?

Mr. John T. Mcternan: I am trying to outline to you --

Justice Felix Frankfurter: Is she talking about this case?

Mr. John T. Mcternan: She was talking about this case and she was saying that there were things about this case that were unfair.

There were things about this case that were contrary to our constitutional guarantees, and I think this, she had a right to say including her comments upon operation and conspiracy hearsay rule.

Justice Felix Frankfurter: (Voice Overlap) right to.

I don't see how you can say when a lawyer in a case said, “I'm talking about the case against Commonwealth -- in Commonwealth against Jones.

And I say that the conduct of that face is unfair, unjust, violates the law of the Constitution.”

If that is an attack on the administration of justice, please tell me what it is.

Mr. John T. Mcternan: I think it lies within the right of the lawyer to say that a trial or doctrine violates the First Amendment.

Justice Felix Frankfurter: I understand.

Mr. John T. Mcternan: It lies in the mouth of the lawyer to say that the judges' honest straight forward interpretation and application to the conspiracy rules result in injustice in a -- in a given case.

Justice Felix Frankfurter: I understand --

Mr. John T. Mcternan: It has been said many times by higher authority, Your Honor.

Justice Felix Frankfurter: I understand that, and relucent mutation and scrupulous attention and care to what you're saying impending that prohibition of law, what I cannot understand is that the charge of the Committee of a trial now going on as violative of law and fairness and justice in the Constitution is not being an attack on administration of justice in that court.

Mr. John T. Mcternan: Because --

Justice Felix Frankfurter: That I cannot understand.

Mr. John T. Mcternan: -- I don't think, Your Honor, that the administration of justice is no tender issue that it cannot accept criticism even while the trial is going on.

Justice Felix Frankfurter: I will listen to your proposition of law if that's allowable indeed, authorize -- required by the Constitution.

That's the proposition of law.

But let's agree what you've started with the discussing.

We are discussing now whether she did in fact impugn the fairness and justice of the administration of justice in that case.

Mr. John T. Mcternan: And I would submit to you that the problems of the administration of justice in a given case are broader than what occurs in a courtroom and these are legitimate subject to comment by lawyers including the lawyer in the case so long as she does not dosing with or he does not dosing which interfere with the fair administration of justice, add to the scale's weight to don't belong in the interlocutory process.

Justice Felix Frankfurter: (Inaudible) simply that we will make a distinction.

I make a distinction between what she did and whether a right under the Constitution to be allowed to do it.

The latter, I can see is a serious question of law to which I shall I attend, I hope, for an open and eager mind.

But the other thing, what it is she did is, to me, just a question of fact.Did she talk about this case?

You said she did.

Did she talk about it condemnatorily?

She did.

Mr. John T. Mcternan: Well, Your Honor, it -- it seems to me that it -- it's proper to speak condemnatorily about a case where the responsibility of that pending case lies not with the trial judge but with the prosecutors in the case or where the responsibility lies with the law which the judge is peacefully administering, and I don't see that how a lawyer looses his -- his right to practice because he called these things to public attention while they are going on, what better time to have the public know in -- in then -- at the time the case is going on and particularly a case which is attracted so much public attention is one (Voice Overlap)

Justice Felix Frankfurter: My point is -- my conviction is it's none of the public's business to hear it out of the lawyer's mouth who's contemporaneously engaged in trying a case before a jury and before a judge.

Mr. John T. Mcternan: Your Honor, I should think that it would certainly lie within the -- within the power of an attorney who was not in the case and -- to -- to say these things during the pendency of the trial.

Justice Felix Frankfurter: That isn't this case.

Mr. John T. Mcternan: That's not this case.

Now, therefore, we have to address ourselves to what it is about the lawyer's connection with the case which -- which places the disability upon him.

This, I can find no authority here.

Anything in the cases would say that his connection with the case disables him from saying this.

Now, on -- I -- I do agree, as I told Mr. Justice Stewart before that I think his position creates an easier risk of interfering with the fair administration of justice but I find nothing which inhibits his right to speak in the case merely because of his -- his connection with the case.

And if you read Judge Pope's opinion, he, too, addressed himself to this question --

Justice Felix Frankfurter: This is --

Mr. John T. Mcternan: -- and he could bind those (Inaudible)

Justice Felix Frankfurter: This is a constitutional problem and I shall remain irreconcilable as long as I live to the notion that the right of talking by anybody under any circumstances is greater than the right and the duty and the necessity of conducting trials under the only conditions under which trials can fairly be conducted --

Mr. John T. Mcternan: But --

Justice Felix Frankfurter: I shall remain irreconcilable on that proposition.

Mr. John T. Mcternan: Your Honor --

Justice Felix Frankfurter: That's the question of constitutional law.

And on that, I do not have to (Inaudible)

Mr. John T. Mcternan: Your Honor, it doesn't -- doesn't your last statement assume that the lawyer in making this comment ipso facto by his very position has an effect upon the administration of justice?

It seems to me that it does.

And I -- I would say to you that I think that the lawyer in the case, and this is a problem which is indicated in the opinion below that the lawyer in the case does not owe a duty to protect that court.

He owes a duty to see one that his clients are protected and he owes a duty to see that there is public enlightenment on matters of public concern.

And --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John T. Mcternan: -- I cannot remove from the area of public concern attention to the specific evils which a particular trial may -- may illustrate.

Justice Felix Frankfurter: I think I've taken up of your time, Mr. McTernan.

Mr. John T. Mcternan: Sir, excuse me.

Perhaps, I've taken all of my time.

How about that, Mr. Chief Justice?

Chief Justice Earl Warren: No, I think -- I think he left you little.[Laughter]

Mr. John T. Mcternan: Oh, I -- I intended to reserve a few --

Chief Justice Earl Warren: You --

Mr. John T. Mcternan: -- moments.

Chief Justice Earl Warren: -- you may take --

Mr. John T. Mcternan: May I reserve the rest of my time?

Chief Justice Earl Warren: Yes, you may reserve the rest.

Mr. Barlow.

Argument of A. William Barlow

Mr. A. William Barlow: Mr. Chief Justice, may it please the Court.

I think that Mr. McTernan has lost over the evidence very lightly.

I --

Justice Hugo L. Black: May I ask if you are asking us to overrule the Bridges and Pennekamp cases?t

Mr. A. William Barlow: Am I asking you to overrule it, sir?

Justice Hugo L. Black: Yes.

Mr. A. William Barlow: No, sir, because I don't think it hasn't any application here.

I subscribed to Justice Frankfurter's remarks about how a lawyer should conduct himself during the pendency of a case in which he is advocating day in and day out before court.

Justice Potter Stewart: Now, was he -- was this lawyer -- was this lawyer charged with any such impropriety as that as -- as interfering with the fair trial that was going on?

Mr. A. William Barlow: This lawyer was charged, may it please, Justice, with conducting a willful and oral attack upon the administration of justice in a federal court.

She was charged with having made these statements and she was also charged contrary to Mr. McTernan's statement to the Court.

She was charged with impugning the integrity of the Court, and I think that if the Court will read Matsuoka's notes, if the Court will read the story that appeared in the newspaper, the Court will come to the conclusion and you can't come into any other conclusion but that the Government and Judge Wiig were conspiring to frame the clients that she was representing in a courtroom.

She started out her what --

Justice Hugo L. Black: What was the date of the speech?

Mr. A. William Barlow: Sir?

Justice Hugo L. Black: What was the date of the speech?

Mr. A. William Barlow: I think it was either December 14th or 15th.

But it was on a Sunday morning.

Justice Hugo L. Black: Of what -- of what year?

Mr. A. William Barlow: 1952.

Justice Hugo L. Black: What was the date of the charge?

Mr. A. William Barlow: The charge --

Justice Hugo L. Black: Against the lawyer.

Mr. A. William Barlow: I think it was either a year or two later, sir, but July 8, 1954 of the trial in which she was engaged at the time had not terminated until June of 1953.

And subsequent to the trial, the federal judge had summoned the President of the Bar Association and asked the President of the Bar Association to look in, to the behavior of the petitioner in this case and that --

Justice Hugo L. Black: What about the Attorney General?

Mr. A. William Barlow: Sir?

Justice Hugo L. Black: Did you ask the Attorney General?

Mr. A. William Barlow: No, he asked the President of the Bar Association.

The record so indicates, I think, with Mr. Sam King of which the President of the Bar Association at the time and Judge Wiig sent for the President of Bar Association and indicated to him that he would suggest to the President that the Bar Association investigate the behavior of Mrs. Bouslog during the Fujimoto trial.

And at that time, this case started.

Justice Hugo L. Black: Did the Bar Association have authority to start the proceeding then?

Mr. A. William Barlow: At that time, the Bar Association did not have an authority under the then existing court rules to file a complaint.

The Attorney General did not file a complaint so that the Court --

Justice Hugo L. Black: Did he have -- did he have authority?

Mr. A. William Barlow: He had the authority, yes, sir.

So that the Court amended its rules of procedure in order it allow the Bar Association to file a complaint.

Chief Justice Earl Warren: As I understand, the judge asked the Bar Association sometime in July 1954 to make the investigation.

Mr. A. William Barlow: Sometimes subsequent to the termination of the Smith Act which was in June of 1953.

Chief Justice Earl Warren: And -- then when -- when was the report of the -- when did they charge him?

I'm speaking to the Bar Association.

Mr. A. William Barlow: The complaint of the Bar Association is filed on July 8th, 1954 and the hearings had sometime in November and December of 1954.

Justice William O. Douglas: What is -- what is the relevancy of this pamphlet in the back of your brief?

Mr. A. William Barlow: The relevancy of the pamphlet in the back of the brief --

Justice William O. Douglas: That seems too technical.

The speech -- a speech three years before this episode, isn't it?

Mr. A. William Barlow: No.

That speech was made two days after the indictment was returned in the Fujimoto case.

And we offered that pamphlet --

Justice William O. Douglas: That's on 1951.

Mr. A. William Barlow: 1951.

The indictment was returned sometime in August of 1951.

And two or three days after that, she made her a Labor Day speech which is incorporated into the pamphlet here.

Justice William O. Douglas: Was that part of the grounds for her disbarment here?

Mr. A. William Barlow: The Court took in a consideration of fact that this was not a spontaneous utterance or a thought that probably was born at the moment that she was making her speech that this was part of a well-conceived plan on the part of the petitioner.

Justice William J. Brennan: Well, was this -- was this pamphlet in evidence before (Voice Overlap) --

Mr. A. William Barlow: Yes, sir, that pamphlet was in evidence before the Hearing Committee, it was in evidence before the Supreme Court and it was in evidence before the Ninth Circuit Court of Appeal.

And if the justices will read that pamphlet carefully, you'll find out that she does attack judges.

She makes a statement in there to the effect that judges to stay in power, join in the witch-hunt.

Chief Justice Earl Warren: Do what?

Mr. A. William Barlow: They joined in the witch-hunt.

She had referred to the Smith Act trial at that time as a witch-hunter.

And in that pamphlet, I might say to the Court that that speech was made, if you take into consideration the fact that a lawyer enters his appearance on a certain day that that speech also was made during the pendency of this course of action.

It was made two days or three subsequent to the return of the indictment and it was made subsequent to the time that she entered her name, its counsel of record for Jack Hall in the trial.

And this pamphlet was introduced to show to the Committee and also showed to the Supreme Court that this was not an accident on the part of the petitioner, that this was a well devised scheme, it was a well devised plan whereby she was going around making speeches.

And if the Court will look at the record, the record will indicate that Jack Hall, who was on the stand, testifying in behalf of Mrs.Bouslog, stated that after she made this Honokaa speech, she no longer was part of the speaking entourage for the ILWU.

Now, who saw the light of day?

I don't know, whether she did, whether the ILWU did, we have no information.

Justice Potter Stewart: Now, Mr. Barlow, it would you concede that apart from the pendency of this criminal litigation, the Smith Act's trial, apart from that, apart from the pendency of that, wouldn't you -- wouldn't you agree that Mrs. Sawyer, under the First Amendment, had all the freedom on the world to say that judges were engaging in a witch-hunt?

Mr. A. William Barlow: I agree with Your Honor.

Justice Potter Stewart: That's not impugning anybody.

Mr. A. William Barlow: Oh --

Justice Potter Stewart: (Voice Overlap) isn't it?

That's -- that's just ordinary criticism I -- and a point of view shared by a good many people.

As a matter of fact, whether or not it is, whether it was her sole point of view, doesn't the First Amendment protect her in saying that?

Mr. A. William Barlow: I'm sorry.

I did not give to the Court the full tender of her speech when I say that she was impugning the integrity of the Court.

As I see your question, you may -- you are isolating that one remark.

Justice Potter Stewart: Because that's the only -- only thing you pointed out.

Mr. A. William Barlow: And I -- I had not intended to isolate that remark.

I think if you read her speech, she started the speech, and I think that the Court should put itself in the climate, the atmosphere where this speech was being made.

The speech had been advertised by the ILWU.

We're going to have a public discussion on Sunday morning in this theater.

This is the town by 180 miles from Oahu.

It has a population of approximately 1000 people.

Justice William J. Brennan: You're talking about the speech during the trial on this (Voice Overlap) --

Mr. A. William Barlow: I'm not talking about that speech, no, sir.

I'm talking about the speech that she was charged with, the Honokaa speech.

She was advertised as one of the principal speakers.

She came over there, and she made her speech.

The reporter's notes indicate what the tender of her speech was, to be --

Justice Potter Stewart: I --

Mr. A. William Barlow: -- started out --

Justice Potter Stewart: -- may I ask you a factual question?

I don't know much about anything about the geography of Hawaii -- the -- of our new State except that it's an archipelago and consisted of several islands.

The trial was going on in Honolulu?

Mr. A. William Barlow: The trial was going on in the Island of Oahu in Honolulu.

Justice Potter Stewart: And the speech was made on a different island.

Mr. A. William Barlow: It was made on the Island of Hawaii which is approximately 180 miles over international waters.

Justice Potter Stewart: 180 miles away.

Mr. A. William Barlow: That's right, sir.

Justice Potter Stewart: And the newspaper report of the speech, the contemporaneous newspaper report was published in Honolulu or not?

Mr. A. William Barlow: It was published in Honolulu and it was also published in the Hilo Herald-Tribune or whatever they call it.

Justice Potter Stewart: On the -- on the island on which the speech was given.

Mr. A. William Barlow: On the Island of Oahu.

And subsequent to the speech, Judge Wiig summoned Mrs. Bouslog and the colloquy that Judge Bouslog or Judge Wiig and Mrs. Bouslog had is part of the record.

And if you look at that record, you will indicate that Mrs. Bouslog stated that the first half of the speech was devoted to a general discussion of Smith Act trials and that the second half of her speech was devoted to the then existing trial in Honolulu.

And if you notice further in the colloquy, Judge Wiig indicated that he certainly was not satisfied with the right explanation, and he ordered me to make an investigation of the speech to find out whether he could properly charge her under Rule 42(b).

Justice William J. Brennan: Were you connected with the file?

Mr. A. William Barlow: I was the United States Attorney in charge of the case.

Chief Justice Earl Warren: What -- what was your finding that he could or could not --

Mr. A. William Barlow: He could not.

Chief Justice Earl Warren: -- charge her.

Mr. A. William Barlow: And I also looked into the possibility of charging her under Title 18 Section 401 and because of the Court's rulings on geographical nearness, we could not charge her under 401 either because his speech had been made 180 miles away.

And because of those factors, Judge Wiig then referred this matter to the Hawaii Bar Association.

And Hawaii Bar Association referred the matter to the Supreme Court.

They filed a complaint against her.

They had a hiring.

And I might say, and Mr. McTernan talks about fragmentary evidence, prodding of witnesses, leading of witnesses, and Mrs. Bouslog had very capable counsel during the secret hearings.

Mrs. Bouslog counsel was afforded at all times the opportunity of examination and cross-examination.

And subsequent to the finding of the Committee and subsequent to the finding by the -- subsequent to the finding of the Committee, Mrs. Bouslog was entitled to a trial de novo.

If she wasn't satisfied with the fragmentary evidence that was developed at the hearing before the Committee, she could have asked for a trial de novo before the Supreme Court.

And right after the secret hearings had ended, Mr. Anthony, who was our counsel in the secret hearings, for -- for reasons best known to himself withdrew and that was present counsel, Mr. McTernan who had the opportunity if he felt that the evidence was fragmentary, if he felt that there was any deficiency in the evidence, he had the opportunity of asking the Supreme Court for trial de novo, and I might say to the Court that it was the petitioner's suggestion that the matter be submitted to the Supreme Court on a record made before the Committee in which the Bar Association acquiesced.

We had no desire to air this thing in public.

We were perfectly willing to submit the matter to the Supreme Court on the evidence that was developed at the hearing.

Now --

Justice Hugo L. Black: Supposed a committee of lawyers -- lawyers or judges had passed resolutions containing this precise language after the case was over, would you say they could be disbarred?

Mr. A. William Barlow: After the case was over?

Justice Hugo L. Black: Yes.

Mr. A. William Barlow: No.

Justice Hugo L. Black: Suppose --

Mr. A. William Barlow: I --

Justice Hugo L. Black: -- suppose she had made the same remarks at San Francisco instead of the -- the island an 180 miles away?

Mr. A. William Barlow: It was made during the course of the trial, I would say, that she --

Justice Hugo L. Black: It all depends on that.

Mr. A. William Barlow: That's right.

I think that if a lawyer is appearing before a court, advocating certain proposition, she shouldn't go out at night telling the public that I think that the Court is conspiring with the Government.

No matter what we produce to the Court, we can't seem to get in to the evidence.

And if the Government is conspiring with the federal judge in order to widen, in order to give the Government more latitude, Mr. McTernan puts a very innocent gloss on the testimony.

And the testimony, I might say, is not restricted to Matsuoka's notes.It's not restricted to the newspaper report.

And while we are talking about Matsuoka's notes, Mr. McTernan refers to him has being expanded.

The reporter was asked what he meant by his expanded notes, and the reporter said, in answer to the committee member who asked him the question, and he says, “Well, do your name is Dodge?

In -- in my notes, I put down Dodge.”

By expanding on the notes, when I write my story, I say, “Robert G. Dodge.”

That's the only way I expand.

I do not add anything to it.

So that there is no significance in McTernan's statement that the -- that the reporter indicated that he expanded on the notes.

There was no expansion on the notes insofar as changing the meaning.

Justice Hugo L. Black: What was the -- what was the difference in the space occupied by the printing?

Mr. A. William Barlow: By the printer?

Justice Hugo L. Black: By -- by the printing.

I -- I am interested as much as you say that.

The notes were how long and how long was the newspaper article?

Mr. A. William Barlow: Well, I honestly can't say to the Court how many pages the notes took.

The notes are in the record, may it please the Court.

Justice Hugo L. Black: And is the newspaper article in the record?

Mr. A. William Barlow: The newspaper article in and of itself is not in exhibit but it is recited verbatim in the majority opinion of the Ninth Circuit Court.

Justice Potter Stewart: You say this meeting of which this speech was given was well advertised in advance or --

Mr. A. William Barlow: According to the testimony of the witnesses, and according to Matsuoka, the reporter -- they stated that the meeting was advertised in advance.

Justice Potter Stewart: Did the reporter say why he'd gone and he'd been --

Mr. A. William Barlow: The reporter --

Justice Potter Stewart: (Voice Overlap) --

Mr. A. William Barlow: -- had been instructed to cover the meeting because they felt that something interesting might develop.

Justice Potter Stewart: Instructed by his paper, right?

Mr. A. William Barlow: That's right.

Justice Potter Stewart: Is there any -- is there any showing when the -- showing of facts in which an inference could be drawn that the -- that the petitioner knew the reporter would be there and -- and knew and have reason to believe that there would be a reporter of this in the -- in the newspapers?

Mr. A. William Barlow: Well, I'll answer it this way, may it please the Court, that there is no doubt in my mind that the petitioner was aware of the fact that there was a reporter present.

Justice Potter Stewart: Was that shown in the record?

Mr. A. William Barlow: I think it is.

Justice William J. Brennan: Was that meeting open to the public?

Mr. A. William Barlow: It was a public meeting.

It was advertised in the public meeting.

Chief Justice Earl Warren: Where was it advertised?

In Honolulu or in Hilo or in this --

Mr. A. William Barlow: No, it was advertised --

Chief Justice Earl Warren: -- or in this little town of 1000 people?

Mr. A. William Barlow: It was advertised in a little town of 1000 people.

It's a small --

Chief Justice Earl Warren: 180 --

Mr. A. William Barlow: Sir?

Chief Justice Earl Warren: 180 miles.

That's 180 --

Mr. A. William Barlow: That's right.

Chief Justice Earl Warren: -- miles away.

Mr. A. William Barlow: It was not advertised in the City of Honolulu.

It was not advertised in the City of Honolulu.

Justice Potter Stewart: Was there any showing during the trial that the members of the -- of the jury in the Smith Act case had seen this newspaper article?

Mr. A. William Barlow: There was no attempt made to show that anyone of the jurors had seen the article or read it or that they had been influenced by --

Justice Potter Stewart: No suggestion along those lines --

Mr. A. William Barlow: No, sir.

Justice Potter Stewart: -- during the trial.

Mr. A. William Barlow: No, sir.

Justice Hugo L. Black: Was the meeting held under the auspices of any defense association or what was it?

Mr. A. William Barlow: It was a meeting sponsored by the Defense Committee which was collecting money or had already collected money to deprave the cost of expenses of Smith Act trial especially the one that was been in progress in Honolulu.

And she was making a report to the people that had, no doubt, contributed.

And when she was making a report, they had contributed to the defense of Jack Hall who was their original ILWU Director, and I am certain they were not in to --

Justice Hugo L. Black: Regional -- regional what director?

Mr. A. William Barlow: He was Regional Director for the ILWU.

Justice Hugo L. Black: What is that?

Mr. A. William Barlow: International Longshoremen's and Warehousemen's Union.

Justice Hugo L. Black: Was that the defense club?

Mr. A. William Barlow: That was the Defense Committee, Jack Hall being part of the ILWU.

They banded together and paid his legal expenses.

And this was the Committee that was -- sir?

Justice Charles E. Whittaker: She was his counsel?

Mr. A. William Barlow: She was his counsel at the time.

She was his counsel of record.

He was there, and she was there, and they both made speech as critical of the typed evidence that was being introduced.

And I think that the Court -- all the Court has to do is look at Matsuoka's notes, and the Court can easily come to the conclusion that Mrs. Bouslog had banded the Government into one little group, the Government being the federal judge, the prosecutors, the FBI.

Everybody was part of the Government in a role engaged in a conspiracy to do no good for her clients.

Chief Justice Earl Warren: We'll recess now, Mr. --

Featured:

In Re Sawyer - Oral Argument, Part 2

Tue, 04 Dec 2012 20:37:09 +0000

Case:

In Re Sawyer

Media File:

326_19590520-argument-2

Related Transcript:

326_19590520-argument-2

Transcript:

Argument of A. William Barlow

Chief Justice Earl Warren: Number 326, in the Matter of Disciplinary Proceedings against Harriet Bouslog Sawyer.

Mr. Barlow, you may continue your argument.

Mr. A. William Barlow: Mr. Chief Justice, may it please the Court.

Perhaps some of the Court may be wondering why a speech that was made in 1952 is before the Court in 1959.

I may be facetious, yet, I am sincere when I say that the reason for the long delay is the fact that the petitioner has been accorded due process all the way along the line.

In 1952, December 14, she made this talk at Honokaa on the Island of Hawaii.

The case in which she was engaged as counsel terminated sometime in June of 1953.

Subsequent to the termination of the trial, Federal Judge John Wiig, who presided at the trial, referred the behavior of the petitioner to the Bar Association.

The matter was then referred to the Ethics Committee in July of 1954.

In September of 1954, the petitioner requested a bill of particulars, which, were supplied to her.

In November of 1954, the Ethics Committee conducted a full-scale hearing.

At which time, the petitioner was represented by a very able counsel and at which time, she had the opportunity of presenting on her behalf any and all witnesses that she thought were people who could testify to what she had said at the time of the incident related to in the complaint.

The hearing consumed 468 pages and ended on December the 8th, 1954.

The Ethics Committee Report which found Mrs. Bouslog guilty of impugning the integrity of the Court, of interfering with the administration of justice, and creating disrespect for the courts on the first complaint, and on the second complaint, with conducting a studied interrogation of a sick juror immediately after the trial in violation of Canon 23, the American Bar Association Opinion 109, and the rulings in the Rakes and Millie cases.

Subsequent to that report by the Bar Association Ethics Committee, the Supreme Court issued an order to show cause.

That order was issued July 8th, 1955.

The petitioner was granted an extension of time to September of 1955, within which, to file an answer.

Instead of the return of the order to show cause, she filed a motion to dismiss the order to show cause on October 19, 1955.

More time for filing petitioner's return to the order to show cause was requested and petitioner was granted to December.

And finally, the argument was set for January of 1956.

On January 7th, 1955, petitioner filed a motion for reconsideration of the order, denying the motion to dismiss the order to show cause.

This motion was extensively argued and denied by order filed November 29, 1955.

A return to the order to show cause was finally filed by the petitioner on December 2, 1955.

Another motion for continuance by petitioner followed, and another hearing was held.On a date set for trial, which was January 9, 1956, a pretrial conference was held with counsel for the Bar Association, counsel for the Attorney General and counsel for the petitioner being present.

Two days later, another delay was occasioned by the petitioner filing a suggestion of disqualification of Associate Justices Stainback and Rice of the Supreme Court.

Extensive argument on this motion was again held by the Territorial Supreme Court.

The Territorial Supreme Court, incidentally, held that neither Justice was disqualified.

However, Justice Stainback withdrew on his own motion.

At the pretrial conference, it was determined that under Rule 19, the petitioner could avail herself of a trial de novo.

However, the petitioner, through her counsel, and counsel for the Bar Association, and the Attorney General, and the Court stipulated that instead of a trial de novo, the matter would proceed upon a record submitted before the Committee.

The opinion of the Court was filed April 6, 1956.

The Court found that the complaint was sustained by convincing proof, by credible evidence of more than a mere preponderance.

The Court found that the charges under both complaints were proven and found that the petitioner was guilty of gross misconduct on both counts.

The petitioner then appealed to the Ninth Circuit Court of Appeals under Section 1293, alleging that there was a constitutional question involved and also alleging that her right to practice law had a money tag or a value attached to it that by virtue of the fact that she was suspended for one year, the matter in controversy or the value in controversy was the amount of money that she had earned in previous years.

The Bar Association took the position that this was a simple matter of discipline involving the Canons of Ethics, that there was no First Amendment constitutional question involved.

The Bar Association took the position that insofar as the license to practice law was concerned, it was priceless and you could not attach a price tag to it.

The petitioner filed her affidavit, stating that she made an excess of $5000 and the Court, on the first hearing, granted her a stay pending the determination of the case on its merits.

Two Justices Justice concurring, and Justice Lemmon wrote a dissenting opinion in which he indicated that as far as he was concerned, that it was a very simple disciplinary matter.

There was no constitutional question involved and that insofar as he was concerned, you could not attach a price tag to the practice of law.

Justice Potter Stewart: In that connection, Mr. Barlow --

Mr. A. William Barlow: Yes, sir?

Justice Potter Stewart: It seems to be that petitioners -- it seems to have been and continue to be the petitioner's position throughout these proceedings that how the penalty imposed was purportedly a suspension of practice for one year, in actual practical effect, it was disbarment.

What do you have to say about the matter?

I don't want to interrupt your presentation, but I was --

Mr. A. William Barlow: Well --

Justice Potter Stewart: -- need to know.

Mr. A. William Barlow: -- the only thing I can say about that Mr. Justice Stewart, is that under our rules that if you are suspended for a period in excess of six months, that you then have to take a written examination and you again have to pass a character test.

We, in the Territory of Hawaii, at the present time, have no reciprocity with any other state insofar as admission by a motion is concerned.

When I went there, 13, 14 years ago, I had to take a bar examination that lasted five days.

I had to pass a character test.

So --

Justice Potter Stewart: And somebody suspended for more than six months has to do the same.

Mr. A. William Barlow: That's right.

Justice Potter Stewart: And presumably, I suppose that these very proceedings would make it difficult, if not impossible, to pass the character test if that were true.

Mr. A. William Barlow: I don't know why, sir.

Justice Potter Stewart: No.

Mr. A. William Barlow: It --

Justice Potter Stewart: To get some answer on it --

Mr. A. William Barlow: It depends on what the -- possibly, if it ever came back into the Supreme Court, it's what this Court would consider good moral character.

Maybe our Court might decide that based on these proceedings, she doesn't possess good moral character.

It may very well be that this Court on review, as they did in the Schwerin and Cunningsburgh case, stated “In our opinion, your finding is arbitrary.

You're dogmatic, and we think that this one little incident doesn't -- shouldn't deprive the present from her right to practice law.

Justice Potter Stewart: But you're not here today characterizing this as one little incident, are you?

Mr. A. William Barlow: No, sir.

Now, insofar as the Bar Association of the Territory of Hawaii is concerned, we consider this a very serious breach of the Canons of Ethics and that's all we do consider, as a breach of the Canons of Ethics.

Justice Felix Frankfurter: Who -- who determined -- who would determine in Hawaii qualifications to be readmitted to the Bar?

Mr. A. William Barlow: The Supreme Court itself, sir.

Justice Felix Frankfurter: And the Supreme Court suspended this member of the Bar for a year.

Mr. A. William Barlow: That's right, sir.

Justice Felix Frankfurter: I should think it would be a very hard time.

I should think any court or tribunal would have a hard time suspending misconducts or violations of the Code of Ethics of a lawyer for a year and then say that because he suspended you for a year, which means, a year thereafter, you never can be admitted again.

That they will ask -- indeed, wasn't there one member who thought she should be disbarred?

Mr. A. William Barlow: One member of the Court --

Justice Felix Frankfurter: The Court refused --

Mr. A. William Barlow: -- felt --

Justice Felix Frankfurter: -- to disbar her.

Mr. A. William Barlow: That's right.

Justice Felix Frankfurter: Well, they can't subsequently disbar under the pretense that they won't allow her to take the examination if she doesn't satisfy the requirement.

I should think --

Mr. A. William Barlow: It's very possible, sir.

Justice Felix Frankfurter: Well, I -- I don't know anything about it, but I should have a hard time finding that the Court was justified when it found that the appropriate punishment is a year -- to be suspended for a year then say, "Oh well, that meant -- that year meant that you'll forever have to disqualify.”

Mr. A. William Barlow: Of course, the --

Justice Felix Frankfurter: That seems to me to be playing tricks for its own determination.

Mr. A. William Barlow: It may very well be, sir, but the possibility arises at something, maybe the young lady could never pass a written test again, --

Justice Felix Frankfurter: Well, that's a different --

Mr. A. William Barlow: -- may --

Justice Felix Frankfurter: -- I'm not talking about that but that's a different story.

If fair questions were put and the intellectual test isn't met, I'm merely suggesting that the Court that said a year's suspension is appropriate response to the misconduct that they've found, they couldn't, afterwards, say the year's suspension meant light suspension.

Mr. A. William Barlow: That's right.

Justice Hugo L. Black: They could say it passed a very heavy burden on her, couldn't they, one that's very difficult to get over?

Mr. A. William Barlow: Well, they could say that “it's up to you to carry the ball,” so to speak, “to prove to us that you're a person of good moral character” but as Justice Frankfurter indicates, that they suspended her for a year.

Justice Felix Frankfurter: Anyhow, we took a case that didn't have -- that was, I should think, less clear than this and we thought we could review a determination.

I think your Court that solemnly said “you are to be suspended for a year” can, on the same basis, say, “All we meant was that meant life.”

Justice Hugo L. Black: That would depend on the feelings and beliefs of those who presided in the Supreme Court of Hawaii and those who passed on the case here as it came back at the time it came here, wouldn't it?

Mr. A. William Barlow: I might say for the Court's benefit that as soon as we become a state, we'll have a new Supreme Court and the people that participated in this proceeding more likely will not be members of the Supreme Court.

Justice Hugo L. Black: Why is that?

Mr. A. William Barlow: Because of age considerations.

Under our constitution, there's an age limitation and two of the Judges would be automatically disqualified because of age.

Justice Felix Frankfurter: I'm merely suggesting that I thought we had decided the Court can't be or a state court can't be arbitrary even as to admission or continuance at the Bar, and I can't imagine anything more arbitrary than for a court, a predecessor court, if you will, who said a year would be appropriate response to wrong doings then saying a year meant life.

I can't imagine anything more arbitrary than that.

Justice Hugo L. Black: What do your rules require with reference to the burden that one has to meet who has been suspended for a year?

Justice Felix Frankfurter: We have no rules on that sir.

The only --

Justice Hugo L. Black: No rules of any kind?

Mr. A. William Barlow: No, that's right, sir.

The only rule we have is that a person who has been suspended for a period in excess of six months must satisfy the character qualifications and take a written test, --

Justice Potter Stewart: Like any due applicant.

Mr. A. William Barlow: -- the same as she was --

Justice Potter Stewart: Like anyone who has never been admitted to the Bar.

Mr. A. William Barlow: That's right.

The same as if you were applying for admission de novo.

Justice William J. Brennan: Take the same questions.

Mr. A. William Barlow: The same examination, sir.

It isn't a special examination.

You take the same examination that a law student takes.

Justice William J. Brennan: This suspension is not -- has not been properly set off.

Mr. A. William Barlow: It has not.

There is a stay order that was issued by the Ninth Circuit Court, so that she has been practicing and carrying on her profession since the hearings.

Justice William J. Brennan: Now, what has to be the size of your new Supreme Court?

Mr. A. William Barlow: Five Judges, sir.

Justice William J. Brennan: Presently on the Bar?

Mr. A. William Barlow: Three.

When -- when we got to the Ninth Circuit Court of Appeals, may it please the Court, we contended, initially, that the Ninth Circuit Court had no jurisdiction to accept this case under Title 28 Section 1293.

The Court ruled against us two-to-one, Justice Lennon dissenting.

Then, the matter was set down for a hearing, a full-scale hearing, before another three-man panel.

We argued the case, we argued the merits of the case before this panel, and the panel never came up with a decision.

Either by hearsay or through the grapevine, we found out that that panel did not agree with the first panel.

Insofar as jurisdiction was concerned, they felt that the Ninth Circuit Court did not have jurisdiction, so they set the matter down for a full- scale hearing before a nine-man court.

And we then argued the matter before a nine-man court.

The opinion reflects seven members four-for, and three-against.

Justice Denman, who was the Chief Justice at that time, retired after the case was argued and Justice Lemmon died, leaving seven Judges to participate.

That Court found that the Bar Association had sustained its burden.

That Court found that the petitioner was guilty of the conduct that was charged in the complaint.

That Court indicated in its decision that they thought that they held jurisdiction by the very narrowest of threads insofar as the first count of the complaint involving her claim of freedom of speech was concerned.

Insofar as count 2, involving the incident with the juror pool was concerned, they indicated that if we weren't -- if the petitioner wasn't in Court on count 1, she certainly wouldn't be in Court on count 2.

Justice John M. Harlan: Was there any expressed finding that the leave had embarrassed the conduct of the trial?

Mr. A. William Barlow: The Ninth Circuit Court did so find, sir, the majority opinion, that --

Justice John M. Harlan: Expressed by the rules?

Mr. A. William Barlow: -- that the burden was sustained by clear and convincing evidence that she did attack the integrity of the Judge.

Justice John M. Harlan: Now, that isn't the question.

My question was the expression was or wasn't that the findings of the fact that her conduct had embarrassed the conduct of the trial.

Mr. A. William Barlow: No, sir.

There was no finding that in fact, her conduct had embarrassed the Court or the trial.

Justice William J. Brennan: So, there was a finding of guilty in that trial?

Mr. A. William Barlow: There was a finding of guilty insofar as the defendants were concerned --

Justice William J. Brennan: That's right.

Mr. A. William Barlow: -- at the trial, yes sir.

Justice John M. Harlan: The essence of the trial really is an unprofessional conduct of a lawyer throughout talking about a case while it, perhaps, progressed.

Do you say it went that far?

Mr. A. William Barlow: I would say it went that far because the majority opinion by Justice Chambers says that it is a serious violation and a breach to the Canons of Ethics for a lawyer to litigate by day and castigate by night.

Justice Hugo L. Black: Publicly.

Mr. A. William Barlow: Publicly, that's right.

And as the Court will be familiarized with the tone and tenor of her remarks, as reflected in the appendix to our brief, in that speech entitled “Fear,” which she made two days or three days, I think the indictment was returned on August 29th or 28th, 1951.

The day following that she and Mr. Symonds entered their names as attorney of record, and two days later, on Labor Day, or three days later, she made that speech that is appended to our --

Justice John M. Harlan: How many --

Mr. A. William Barlow: -- brief.

Justice John M. Harlan: -- Smith Act trials had there been in Hawaii?

Mr. A. William Barlow: One, sir.

Justice John M. Harlan: This is the only one?

Mr. A. William Barlow: This was the only one.

That's right, sir.

Justice Potter Stewart: So, this Labor Day speech was made before there was any trial, a couple of days after the indictment in this case.

Mr. A. William Barlow: That's right.

Justice Potter Stewart: And how long before the trial in this case was ended?

Mr. A. William Barlow: Well, the trial actually started the day after election in 1952.

Justice Potter Stewart: So, this was 14 --

Mr. A. William Barlow: So, this --

Justice Potter Stewart: -- 15 months before, right?

Mr. A. William Barlow: This was made approximately --

Justice Potter Stewart: More than a year before.

Mr. A. William Barlow: -- 14 months before.

Justice William O. Douglas: And you said, yesterday, that that speech that's relevant here is showing it, what?

Mr. A. William Barlow: A pattern.

The reason that we introduced the pamphlet “Fear” and some of the other speeches that she had made was to show the Committee and the Court that this was not a spontaneous exclamation or a spontaneous suggestion on her part, that it was part of a program, part of a plan and design to bring discredit upon the Judges and discredit upon the courts and to show the community in which she resided that Smith Act trials were, in effect, a conspiracy.

If the Court will read very carefully the notes, Matsuoka's notes, the thoughts contained in Matsuoka's notes, the testimony of all the witnesses that testified at the hearing, I think the Court can very easily come to the conclusion that she was preaching to the community at large that the Government and the Court were conspiring.

She talked --

Justice William J. Brennan: Is that a crime in Hawaii?

Mr. A. William Barlow: During the litigation, sir?

Justice William J. Brennan: I'm talking about this pretrial speech.

It would -- would that be seditious libel or --

Mr. A. William Barlow: Not insofar as the Fear pamphlet is concerned, sir.

But when you take that speech, you can come to the conclusion that this was not a spontaneous declaration on her part, that she knew what she was talking about, that she wasn't excited or agitated or probably, for that moment, mad about something, that this was part of a program and whether the --

Chief Justice Earl Warren: You mean that she held those dues consistently, is that what you mean?

Mr. A. William Barlow: That's right, sir.

Justice William O. Douglas: You mean you can't be against the Smith Act and --

Mr. A. William Barlow: Yes.

I know that there are a lot of people against the Smith Act and I think that you can be legitimately against anything under our constitution.

Chief Justice Earl Warren: Can you say it?

Can you say it if you aren't?

Mr. A. William Barlow: Sir?

You can say it if you -- if you aren't?

Chief Justice Earl Warren: If you are, that opinion, --

Mr. A. William Barlow: If you are, you --

Chief Justice Earl Warren: -- can you say --

Mr. A. William Barlow: Under the First Amendment, you can express yourself insofar as the Smith Act is concerned, but that's not our problem here.

Our problem here is that she not only held these views, but expressed them during the pendency of a case in which she was one of the very active counsels.

And if the Court will read the colloquy between Judge Wiig and a petitioner, the Court will find out that the petitioner, apparently, was a little aggravated because the Judge was allowing certain kinds of testimony into the record because when the Judge asked her, “Did you make the statement that rather, horrible and shocking things go on in this trial?”

She said, and this is only two days later, “I have no recollection of making that statement,” she says, “but I want it clearly understood.”

And I would like to invite the Court's attention to page 29 of the record.

This is Exhibit A, the colloquy between a petitioner and Judge Wiig.

“As the Court can see, my remarks were directly toward the conduct of the prosecution and were not directed toward the Court.”

And this is the part that I want to invite the Court's attention to, “By that I do not mean to say that the defense counsel, in any way, received from the position that was taken in the brief filed in connection with the Crouch's testimony in which we believe we have cited authorities showing that Your Honor has admitted evidence which is not admissible even in ordinary conspiracy cases.

Justice Hugo L. Black: What's wrong with that?

Mr. A. William Barlow: There's nothing wrong with it except that it corroborates Matsuoka's notes, it corroborates the witness' testimony that she did say that the Government and the Court were engaged in a conspiracy whereby they were widening the rules of evidence, whereby the rules of evidence were being scrapped so that the Government could make out a case.

And in one --

Justice Hugo L. Black: Is the complaint that she used the word “conspiracy”?

Mr. A. William Barlow: Sir?

Justice Hugo L. Black: Is the complaint that she used the word “conspiracy” or is it what she said?

Mr. A. William Barlow: No, the complaint is in what she said.

She did not, in so many words, or she did not use the word “conspiracy”.

She did not say that the Government conspired with --

Justice Hugo L. Black: I understood you to say, several times, that she accused the Government of conspiring to do this.

Mr. A. William Barlow: Well, that's my own --

Justice Hugo L. Black: I thought you did.

Mr. A. William Barlow: That's my own language.

I am not quoting from --

Justice Hugo L. Black: Did she say that at any time?

Mr. A. William Barlow: Sir?

Justice Hugo L. Black: Did she say that at any time, that she doesn't have anything --

Mr. A. William Barlow: She did not say it at anytime, using the word “conspiracy,” but I think that when you read the speech as a whole, you can rationally infer that she was alleging a conspiracy between the Government and the Judge in widening the rules of evidence --

Justice Hugo L. Black: Suppose she had made --

Mr. A. William Barlow: -- in --

Justice Hugo L. Black: Suppose she had made this identical speech at the identical time in the identical place and had not been a lawyer in the case.

Would that make any difference?

Mr. A. William Barlow: Under the Canons of Ethics, I would say she had violated Canon 1, yes, sir.

Justice Hugo L. Black: You would say that any lawyer who had made this speech should be disbarred just -- suspended just as she has been?

Mr. A. William Barlow: Yes, sir.

Justice Hugo L. Black: So, it doesn't depend of the fact that she was counsel of the law.

Mr. A. William Barlow: It aggravates the situation by virtue of the fact that she was counsel in the pending case.

When --

Justice Hugo L. Black: What about a law --

Mr. A. William Barlow: When a lawyer gets up --

Justice Hugo L. Black: What about a law review article?

It makes charges tantamount to the same thing.

Mr. A. William Barlow: I'm not prepared to answer a law review article that makes the same charges.

If the writer of the law review article imputes a dishonest motive to the Judge but the Judge is scrapping all rules of evidence, --

Justice Hugo L. Black: That's done --

Mr. A. William Barlow: -- that he is allowing --

Justice Hugo L. Black: That's done pretty often, isn't it?

I think I have seen some editorial of Judge Richmond to that effect.

Mr. A. William Barlow: Well, there's no doubt about it.

There's --

Justice William J. Brennan: How about the opinion of this Court?

Mr. A. William Barlow: I think that this Court is --

Justice William J. Brennan: Suppose that many is the same that you said, here, you'd find the -- an opinion from this Court.

Mr. A. William Barlow: Yes.

I think that this Court is subject to criticism.

Frankly, I have criticized some of the decisions of this Court, but I'm not here litigating today and last night, I wasn't out making a speech criticizing this Court for the shocking and horrible things that go on in here.

Justice Hugo L. Black: Well, do you think, if you hadn't gone out and made a speech somewhere here criticizing the Court for what it's doing, that you could have been disbarred in whole or in part?

Mr. A. William Barlow: I think, frankly, that I would be subject to censure if I showed disrespect to this Court and that's all we're claiming, that she was disrespectful to the Court under Canon 1.

I mean, what do you have to do to be disrespectful to a court?

Justice Hugo L. Black: That's one of the problems through history as to what was disrespectful to the Court and to whether that was enough to take away a person's liberty or his right to do something.

Mr. A. William Barlow: Well, she's merely being deprived temporarily.

If the --

Justice Hugo L. Black: Well, that's a --

Mr. A. William Barlow: If the Canons of Ethics are going to be nullified, in effect, by allowing people to go out during the course of a trial and accuse a presiding Trial Judge of getting together, so to speak, with the prosecution so that the prosecution can allow or put in all kinds of testimony, then, I think that the Canons of Ethics are worthless.

Justice Hugo L. Black: Have they been adopted as a part of the Law of Hawaii?

Mr. A. William Barlow: The Canons of Ethics have been adopted by the Supreme Court of the Territory of Hawaii.

Justice Hugo L. Black: Has there been any statute adopting it?

Mr. A. William Barlow: There's no statute.

It's merely by rule of the Court.

Justice Felix Frankfurter: Do all the decisions of your Court rest on statute?

Mr. A. William Barlow: Not necessarily, sir.

Justice Hugo L. Black: Do -- are there any times when people's rights to make a living are taken away from them without a law passed to that effect?

Mr. A. William Barlow: Not that I know of, sir.

Justice Hugo L. Black: In Hawaii or anywhere else?

Mr. A. William Barlow: Not that I know, sir.

No one is taking away anybody's living here, sir.

They're suspending --

Justice Hugo L. Black: Well, I should --

Mr. A. William Barlow: -- your license for one year.

Justice Hugo L. Black: I should think that that would be a play on words.

A person whose practice, goes to law school, I don't know how long, takes all the courses and gets ready, to say that you deprive them of the right to practice for a year does not affect their right to have the ability to earn a living.

Your case may be alright on the other grounds, but I don't believe that would support that argument.

Mr. A. William Barlow: Well, there's no doubt in my mind that if we're being practical, if she is suspended for a year, she losses whatever earning capacity she has for that year.

I don't deny or dispute that but there's big -- one bigger question here, may it please the Court.

Justice Hugo L. Black: Just one?

Mr. A. William Barlow: Well, there's one in answer to this question and that is whether a lawyer is engaged in a business, or whether we're engaged in a profession, and whether we, as lawyers, are bound by standards that are a little higher than a businessman.

The petitioner makes the statement in this --

Justice Hugo L. Black: Do you --

Mr. A. William Barlow: -- reply --

Justice Hugo L. Black: Do you think, whichever it is, that a lawyer is entitled to any less protection than an ordinary citizen?

Mr. A. William Barlow: No, I think lawyers are entitled to as much, if not more, protection than ordinary citizens.

But I certainly think that a lawyer's conduct should be guided by a higher formula, a higher degree, or a higher standard than an ordinary citizen.

And if a lawyer is not supposed to be guided by a different standard than an ordinary businessman, then I say that the Supreme Court should say, in effect, that “insofar as the Canons of Ethics are concerned, disregard them.”

Justice Felix Frankfurter: Are you going to leave yourself time to discuss the juror question?

Mr. A. William Barlow: I think so, sir.

I think that I've covered the speech incident sufficiently.

I think if the Court will look at our brief, we have tried to itemize and corroborate each one of the statements that was made by Matsuoka in his notes.

And before I get off that subject, I would just like to say to the Court that it isn't only Matsuoka's notes that is part of this record.

If the Court will look at the record, the Court will find out that Matsuoka was put under oath and he testified for 17 pages, and petitioner's counsel cross-examined him extensively and intensely.

And Matsuoka testified under oath to many of the statements that are found in his notes and in a newspaper article.

Justice Potter Stewart: Just before you leave that point for good, is -- am I right in understanding that it's your basic position that the First Amendment does not protect a lawyer from being disciplined for unethical conduct even thought that conduct may consist in -- simply in speech which is, we may assume, protected speech from the point of view of the -- that the citizen might make from the First Amendment but still, that that does not protect a lawyer from disciplinary proceedings taken to discipline him in his professional status.

Is that it?

Mr. A. William Barlow: That's right, sir.

If it does, then Canon 1 is worthless.

Justice Potter Stewart: Well, most the Canons or many of them are worthless, aren't they?

Mr. A. William Barlow: Well --

Justice Potter Stewart: If -- if that -- if --

Mr. A. William Barlow: Well, that's what I -- that's why I say that if you hold that a lawyer is to be measured by the clear and present danger test that Judge Pope advocates, then you might just as well scrap the Canons of Ethics.

And frankly, I have been operating under the Canons of Ethics for a long time and if the Supreme Court feels that they are worthy of being scrapped, I would like to be so advised because I'd like to get in there and meet my competition.

Justice Hugo L. Black: Do we have to pass on all those other Canons of Ethics in order to decide whether a lawyer could be disbarred for making a speech?

Mr. A. William Barlow: No, sir.

Justice Hugo L. Black: Well, why do you say that this necessarily scrapped the Canons of Ethics?

Mr. A. William Barlow: Well, if you're scrapping the First Canon of Ethics, I think that you're scrapping one of the most important of all the Canons of Ethics which requires a lawyer to show a little respect for the court in which he is advocating.

Justice John M. Harlan: What about the jury or the juror's point?

Mr. A. William Barlow: It's our contention that petitioner violated Canon 23, Opinion 109 of the American Bar Association, violated the Rakes and Millie rulings.

After the verdict, Mrs. Bouslog got a telephone call on a Friday night from a woman who was the sister of the sick juror.

This woman was a member of the ILWU.

She called Mrs. Bouslog and said, “My brother is sick.”

Mrs. Bouslog said, “Is he a member of the ILWU?”

Or something to that effect.

She is -- she indicated he was.

So, she says, “I'll be right down.”

She went down and she found the juror to be in a very weakened position.

I think her affidavit indicates that he was motionless, that he certainly was too sick to be talked to at that time.

She talked to the --

Chief Justice Earl Warren: Have you given us all of the conversation that took place between the two at the --

Mr. A. William Barlow: No, I have not, sir.

Chief Justice Earl Warren: -- at the beginning?

Mr. A. William Barlow: I am --

Chief Justice Earl Warren: Well, why don't you give us the sum of the rest of it?

That might be important.

All you told us was that she said, “My brother is sick,” and the respondent or the applicant here said, “Well, is he a member of the ILWU?”

Now, those things, in themselves, don't mean very much.

Were they acquainted?

Do they know each other, these people who --

Mr. A. William Barlow: Well, I was coming to that sir.

Chief Justice Earl Warren: Well, I --

Mr. A. William Barlow: Mrs. Bouslog is the attorney for the ILWU.

Chief Justice Earl Warren: Well, I know.

I know, but I'm just wondering if you told us what the fair import of this first conversation was where the woman called.

Is that all that was said?

Mr. A. William Barlow: I am practically quoting the record verbatim, sir.

Chief Justice Earl Warren: That's all that was said, that's all?

Mr. A. William Barlow: Mrs. Cabreros who is the sister of the juror, Fuller, called Mrs. Bouslog who is the attorney for the ILWU.

Chief Justice Earl Warren: Yes.

Mr. A. William Barlow: And she said to Mrs. Bouslog, “My brother David, who was the juror, is sick.”

Chief Justice Earl Warren: Yes.

Mr. A. William Barlow: And Mrs. --

Justice Hugo L. Black: Did she say anything else that he'd said?

Did she say that he -- she --

Mr. A. William Barlow: Mrs. Cabreros?

Justice Hugo L. Black: Did she say he wanted to see her?

Mr. A. William Barlow: She indicated in her conversation that he wanted to see her.

Chief Justice Earl Warren: For this --

Justice Hugo L. Black: Why?

Mr. A. William Barlow: And she indicated that she had told Mrs. Bouslog that her brother was yelling, “Frame up!”

Justice Hugo L. Black: Was what?

Mr. A. William Barlow: Was yelling “frame up!”

F-R-A-M-E -U-P, frame up.

And because of the fact that he was yelling “frame up,” the fact that he was sick, she went --

Justice Hugo L. Black: What do you mean by that?

Did she use the word “yelling?”

Mr. A. William Barlow: I don't --

Justice Hugo L. Black: Why did she say that her brother said that the conviction was a frame up?

Mr. A. William Barlow: Words to that effect.

Chief Justice Earl Warren: Well, that's a rather important part of this conversation that you only told us fragmentarily, isn't it?

Mr. A. William Barlow: It is sir, I --

Chief Justice Earl Warren: Why didn't --

Mr. A. William Barlow: If the Court wants me --

Chief Justice Earl Warren: Why didn't you tell us that?

Mr. A. William Barlow: -- to, I can read the record for the Court.

Chief Justice Earl Warren: Well, no, but if you're going to relate the conversation, I would suggest that you relate the important parts of it so that -- so that we can understand what the genesis of this whole thing was.

Well, don't bother about that now.

I'll give you three minutes to -- to state your position on this because your time has expired.

Mr. A. William Barlow: Alright, sir.

The -- anyway, Mrs. Cabreros indicated to Mrs. Bouslog that her brother wanted to see her.

Mrs. Bouslog came down, she found the brother sick in bed.

She did not interview the juror on that occasion.

She came back the following day and conducted a very searching examination, an inquiry of the juror as to what transpired in the jury room.

And I think that our brief shows that the juror, presumably, related 30 different incidents that occurred in the jury room and she submitted that affidavit to Judge Wiig in an attempt to impeach the verdict.

The judge, as I recall the situation, did not have a hearing on that affidavit, but the Bar Association charged her with this violation of conducting a studied interrogation of the Juror Fuller.

And the evidence before the Court in the record will indicate that Mrs. Fuller had made many of the statements to Mrs. Bouslog, that Mrs. Bouslog did not advise Judge Wiig of the exact physical condition or mental condition of the juror, that she related to Judge Wiig the conversation that she allegedly had with the juror, and the many things that the juror told her occurred in the jury room.

And the -- Mrs. Bouslog did not tell the judge in her affidavit that the Juror Fuller was too sick to sign an affidavit.

She did not tell the judge that she tried to get the wife, Mrs. Fuller, to sign an affidavit but Mrs. Fuller said, “I won't sign that affidavit because what you have in that affidavit is not what my husband said.”

So, Mrs. Bouslog decided to sign the affidavit instead.

And the Court has before it the record of the doctor that treated the juror.

The Court has before it the record of the psychiatrist that treated the juror.

And we feel that under all the circumstances, that studied interrogation violated Canon 23 and it violated the holdings in the Millie and Rakes cases.

Chief Justice Earl Warren: Was it -- was it misconduct for her to go out and see this juror?

Mr. A. William Barlow: It depended on what she went out to seem him for.

Chief Justice Earl Warren: Well, in response to this telephone message that her client had been framed, was it misconduct for her to investigate that after her juror had been discharged from duty?

Mr. A. William Barlow: The Canon 3 says -- or 23 says that a lawyer should never communicate with a juror, that's before or after and during the course of a trial.

Chief Justice Earl Warren: Well, there would be thousands of lawyers disbarred in this country if that rule was observed.

Mr. A. William Barlow: Well, it's possibly so and if the Court feels that you can interrogate a juror after verdict, why, I'm sure that there are lots of us lawyers who adhere to the Canons and don't interrogate jurors.

We would like to know because we'd like to get to the jurors too --

Justice Hugo L. Black: Is there any law --

Mr. A. William Barlow: -- to find out what they're thinking about.

Justice Hugo L. Black: Is there any law against it?

Mr. A. William Barlow: Sir?

Justice Hugo L. Black: Any law against it in Hawaii?

Is there any statute against it?

Mr. A. William Barlow: There is no statute against interrogating a juror, sir, except that the Ninth Circuit Court has laid down a rule in the Millie case which indicates that it is a violation of the Canons of Ethics to interrogate jurors, to -- to conduct a studied interrogation of jurors after verdict.

Justice Hugo L. Black: Well, you mean if the -- if the lawyer hears that there's been misconduct that brought about the conviction of his client, that he violates some kind of law written by the Courts so somebody else to make inquiry about it, of the juror?

Mr. A. William Barlow: Well it's --

Justice Hugo L. Black: Is that what this second charge is based on, this second -- the part of the --

Mr. A. William Barlow: The second charge is based on a fact that she conducted a studied interrogation of a juror.

Justice Hugo L. Black: What do you mean by “studied?”

Mr. A. William Barlow: The witness Hall indicates that we would develop the subject.

We would ask him questions, he would answer.

She would ask a question, I would ask a question, and he would answer.

We would develop a subject then go onto another subject.

Justice Hugo L. Black: They had a right to do it.

They had a right to do it their way, didn't they?

I don't quite get what you mean by that.

Mr. A. William Barlow: Well, the Ninth Circuit Court, may it please Justice Black, has decided in the Millie case that it's unethical and it's not proper for a lawyer to conduct a studied investigation or interrogation of a juror after a trial.

Justice Hugo L. Black: Do they use the word “studied” and make that a part of it?

Mr. A. William Barlow: I'm not sure that I am quoting the exact words but that's the import of the ruling and holding of the Ninth Circuit.

Justice Hugo L. Black: So, then, under that rule, as you understand it, even if a person's file had been convicted of a crime, and he's learns that one of the jurors says there has been some misconduct that they ought to know about, that he would be subject to disbarment if he went down to the juror and made inquiries on it?

Mr. A. William Barlow: Under certain circumstances, sir.

Justice Hugo L. Black: Well, I'm talking about the circumstance that he learns or he's told that this juror says that there's been misconduct if -- that he should know about in connection with the conviction of his client.

Mr. A. William Barlow: He is not supposed to conduct an investigation of a juror subsequent to a verdict.

Justice Felix Frankfurter: He could go to the judge but need not tell him about it.

Mr. A. William Barlow: Well, I mean --

Justice Felix Frankfurter: Could he do that?

Mr. A. William Barlow: -- that's too simple for some --

Justice Felix Frankfurter: Pardon me?

Mr. A. William Barlow: -- lawyers to do.

Justice Felix Frankfurter: Pardon me?

Mr. A. William Barlow: I said that's too simple --

Justice Felix Frankfurter: But he --

Mr. A. William Barlow: -- for some lawyers to do.

Justice Felix Frankfurter: I mean, there's nothing in the law or in the understanding of the Bar or in the conceptions of propriety that prevents him from going to the judge, is there?

Mr. A. William Barlow: Not to my knowledge.

Justice Felix Frankfurter: But where is anything --

Mr. A. William Barlow: The Judge is available for that purpose.

Justice Hugo L. Black: Where is anything in any law in any state in this Union that bar, it may be there, I don't know, I never heard of it, --

Mr. A. William Barlow: Well --

Justice Hugo L. Black: -- that bars a lawyer from investigating and asking a juror after the case is decided in connection with an effort to find out if there's been something done wrong?

Mr. A. William Barlow: Well, it's -- we have it in our brief, sir, in the Millie case and in the Rakes case.

One is the Fourth Circuit Court of Appeals and the other is the Ninth Circuit Court of Appeals.

Justice Felix Frankfurter: Is that based on a statute?

Mr. A. William Barlow: No, sir.

Justice John M. Harlan: What you are --

Justice Hugo L. Black: That --

Justice John M. Harlan: -- saying is if there is a general understanding with the Bar that lawyers don't have relations with jurors during, before -- or after or during the trial, isn't that what you're saying?

Mr. A. William Barlow: That's right.

Justice Hugo L. Black: And what do you base the statement on that there is such a general understanding after the jury has been discharged, anything but those two cases?

Mr. A. William Barlow: Those two cases, plus, Canon 23.

Justice John M. Harlan: Which is really before us.

Mr. A. William Barlow: That's right, sir.

Chief Justice Earl Warren: And did those cases -- in those cases, did the juror ask to see the lawyer?

Mr. A. William Barlow: Well, I think, may it please the Court, I think that if you read the evidence, you'll find out how and who asked to see what lawyer in this particular case.

It isn't --

Justice Felix Frankfurter: I haven't done that.

Could you please tell us what bearing what you said a little while ago that the lawyer asked -- this lawyer asked the wife to sign an affidavit prepared by her which the wife refused to sign because she said it didn't contain what her husband said.

Mr. A. William Barlow: That's right.

Justice Felix Frankfurter: Now, is that in the evidence?

Mr. A. William Barlow: That's right, sir.

Justice Felix Frankfurter: Was that before the Committee of the Bar and the Supreme Court?

Mr. A. William Barlow: That's right, sir.

Justice Felix Frankfurter: That it ended to the conclusion on this point?

Was that relevant to this -- to the charge?

Was it relevant to the charge --

Mr. A. William Barlow: It --

Justice Felix Frankfurter: -- that a lawyer prepared an affidavit containing things which did not represent what the witness, quoted in the affidavit, supposedly said and asked somebody to sign it?

Mr. A. William Barlow: It was relevant to the charge in this respect, that when they asked us for a bill of particulars as to whether the affidavit was true or false, we stated that we did not make any statement as to the truth or falsity of the affidavit.

All we say is that the affidavit, its contents, and the manner in which it was secured violate the Canons of Ethics.

Justice Felix Frankfurter: What I want to know is whether the Supreme Court of Hawaii had before it testimony that an affidavit is prepared which included matter that did not correspond to the author who was quoted as having said what was in the affidavit, and whether the Hawaii Supreme Court deemed that relevant to the charge before it.

Mr. A. William Barlow: They had before it that -- those facts and they deemed it very relevant to the findings in this case.

Justice Hugo L. Black: Now, what I'd like to know, as this has come out at the last moment, is for you to point out in the record where that is the basis on which the suspension rests, in one sentence in the whole record.

Mr. A. William Barlow: I can't point out --

Justice Hugo L. Black: Can you --

Mr. A. William Barlow: -- that that --

Justice Hugo L. Black: Can you point it out later and send it to us where it would show where that was the basis on which this second charge was sustained?

Mr. A. William Barlow: Well, by, that I don't understand what Justice Black that if --

Justice Hugo L. Black: Well, I know that there's some kind of --

Mr. A. William Barlow: -- when you say “that,” --

Justice Hugo L. Black: -- some kind of judgments --

Mr. A. William Barlow: -- what do you mean by “that?”

Justice Hugo L. Black: Some kind of judgment and some kind of order.

If a person has been found guilty of perpetrating a false affidavit, I assume that you wouldn't want that done by implication.

Where did the Court find that?

Mr. A. William Barlow: The Court made no finding that there was a false affidavit.

Justice Hugo L. Black: Where did the --

Mr. A. William Barlow: And --

Justice Hugo L. Black: -- where did the Bar Association?

Mr. A. William Barlow: They made no finding on that sir.

Justice Hugo L. Black: Where did they charge it?

Mr. A. William Barlow: They didn't charge her on that.

Justice Hugo L. Black: They didn't charge it.

Mr. A. William Barlow: And I --

Justice Hugo L. Black: They didn't charge it and they didn't find it?

Mr. A. William Barlow: That's right and I did not so --

Justice Hugo L. Black: You want us to look at the record to find out if they could have done something on that if they had charged it and the Court had found it.

Mr. A. William Barlow: I did not make any statement to Justice Frankfurter that the affidavit contained a false one.

I say that the Court can easily, after it reads the evidence and evaluates the evidence, come to the conclusion that perhaps, the affidavit didn't state facts.

And my answer to Justice Frankfurter was that Mrs. Fuller stated to Mrs. Bouslog that “I will not sign this affidavit because this affidavit does not contain the facts as they are.”

Justice Felix Frankfurter: My --

Justice Hugo L. Black: And the question I asked was did the Bar Association charge that.

Mr. A. William Barlow: We did not charge her with --

Justice Hugo L. Black: Alright, the Bar Association didn't charge it.

Did the Bar Association find that to be a fact?

Mr. A. William Barlow: Yes, sir.

Justice Hugo L. Black: Where is that finding?

Mr. A. William Barlow: There's a finding by the Bar Committee to that effect.

Justice Hugo L. Black: Where is it?

Mr. A. William Barlow: Rather than take the time of the Court, I would like permission to -- “with respect to the charges in paragraph 3, the Committee finds that when” --

Justice Felix Frankfurter: Where are you reading from?

Mr. A. William Barlow: Page 15 of the record, sir.

“With respect to the charges in paragraph 3, the Committee finds that after rendition of the verdict in Criminal 10 Corps 95 mentioned above Mrs. Bouslog visited one of the jurors, David P. Fuller, Jr. while he was in a very poor mental and physical condition, and thereafter, submitted her affidavit concerning an interview with the juror to the presiding Judge.

While the affidavit of Mrs. Bouslog indicates that on the first occasion, he was gravely ill, the Committee finds that she did not fully disclose to the Court the condition of Mr. Fuller, nor the fact that she had attempted to get affidavits from Mrs. Fuller who refused to sign one and could not get an affidavit from Mr. Fuller because of his condition.”

Chief Justice Earl Warren: Does that say it's false?

Mr. A. William Barlow: No, it doesn't say it's false.

I didn't say it was false either.

I said that the testimony of Mrs. Fuller indicated that Mrs. Fuller made the statement that the matters contained in the affidavit weren't factual.

That's all I said.

And I say to this Court that you can very easily come to the conclusion that that is a false affidavit.

Justice Felix Frankfurter: Since I got you into this, I think I will just state what my question was.

My question was whether there is in the record evidence that an affidavit prepared by the lawyer purporting to set forth the facts was submitted to a witness, to a person to sign, Mrs. Fuller, who refused to sign because she said it didn't conform to what she understood her husband had said.

Mr. A. William Barlow: That is --

Justice Felix Frankfurter: Your answer to that was yes.

Mr. A. William Barlow: It is in the record, sir.

Chief Justice Earl Warren: And then -- then, Mrs. Bouslog or Mrs. Sawyer made the affidavit herself.

Mr. A. William Barlow: That's right, she signed --

Chief Justice Earl Warren: Now --

Mr. A. William Barlow: -- the affidavit herself.

Chief Justice Earl Warren: Now, do you -- do you contend that that is a false affidavit?

Mr. A. William Barlow: Is the Court asking me for my personal opinion?

Chief Justice Earl Warren: No, I'm asking you -- of course in accord with this record.

Mr. A. William Barlow: I think --

Chief Justice Earl Warren: Is there anything in the record here to indicate that -- that it is false?

Mr. A. William Barlow: I think that the Court can come to the conclusion that it is a false affidavit.

Chief Justice Earl Warren: Did anybody below come to that conclusion?

Mr. A. William Barlow: The point was never decided by any court below, no, sir.

Justice Felix Frankfurter: But that doesn't wipe out the fact that she did prepare an affidavit for signature by the wife of the man who's supposed to have said what she made him say and the wife refused to sign it because she said that isn't what her husband said.

Mr. A. William Barlow: That's right.

Justice Felix Frankfurter: That is still in the record?

Mr. A. William Barlow: That's right.

Justice Hugo L. Black: And then sign it?

Mr. A. William Barlow: Sir?

Justice Hugo L. Black: Did she sign it then after that?

Mr. A. William Barlow: When Mrs. Fuller refused to sign the affidavit, then Mrs. Bouslog made an affidavit.

Now, whether it was the same affidavit, the same --

Justice Felix Frankfurter: But Mrs. Fuller never signed the affidavit.

Mr. A. William Barlow: No, she never did.

She never signed the affidavit because she said, under oath, that it contained matters that were not factual.

Justice Hugo L. Black: Do you think that's the basis on which this woman has been suspended from the Bar, that -- that statement by Mrs. -- the juror's wife?

Mr. A. William Barlow: You mean if you take it alone, isolate it?

No.

Justice Hugo L. Black: I'm just saying is that's the basis on which this due process that you say has been given her was given to her, that they were suspending her from the Bar because she has a woman to sign an affidavit which the woman said is not the correct?

Mr. A. William Barlow: Sir, that's only part of this whole problem.

Justice Hugo L. Black: I understand that.

Mr. A. William Barlow: That's one facet.

That is not the reason why the Court voted suspension, and I might say to the Court that insofar as the Supreme Court of the Territory of Hawaii was concerned, they did not impose any punishment on the second count because they felt that their one-year suspension on the first count was adequate, so that she was not given any suspension for the second count.

Justice Hugo L. Black: Well, do we have it up here at all, the second count?

Mr. A. William Barlow: Well, frankly, as far as I am concerned, I subscribe very heartily to Justice Lennon's opinion and decision and I don't think that this case should be here.

Justice Potter Stewart: Didn't the Court of Appeals for the Ninth Circuit unanimously believe or a majority of them at least believe that if the second count alone had been involved, that Court would have had no jurisdiction?

Mr. A. William Barlow: That's right, sir.

Justice William J. Brennan: The facts we knew were all been called.

This was imposed.

Mr. A. William Barlow: As a --

Justice William J. Brennan: It didn't enter into the discipline, did it?

Mr. A. William Barlow: As a matter of fact, the Court decided that she was guilty on two counts.

It isn't very artfully set out by the Supreme Court and as a matter of fact, the petitioner herself did not bring the matter up on appeal in the Ninth Circuit Court.

They took it upon themselves to look into the matter and write the opinion that they did.

The only thing that the petitioner went up to the Ninth Circuit on was the first count involving the speech.

Justice Felix Frankfurter: May I ask you --

Mr. A. William Barlow: Yes, sir?

Justice William J. Brennan: Only when she --

Justice Felix Frankfurter: She didn't ever sign on anything.

Mr. A. William Barlow: That's right.

The Court said that “we feel that the year's suspension is sufficient and we will not impose an additional punishment on the second count,” sir.

Justice Felix Frankfurter: May I ask a jurisdictional question about this.

I'm fully ignorant.

As I understand from the cases that have come here, the two cases, we have said over the last 20 years that there are certain limitations upon the reviewing power of the Ninth Circuit of judgments in the Supreme Court of Hawaii.

Mr. A. William Barlow: That's right, sir.

Justice Felix Frankfurter: Now, assume, as you indicate, assume that the second -- the proceeding -- the disciplinary proceeding had related solely to the second count.

You just indicated that Judge Lemmon held that that was not a given basis for review, is that right?

Mr. A. William Barlow: No, I indicated that Justice Lemmon, at the very first hearing, indicated that the Ninth Circuit did not have jurisdiction over this matter for two reasons.

Justice Felix Frankfurter: So, the whole case -- the whole case --

Mr. A. William Barlow: That's right, sir.

Justice Felix Frankfurter: I --

Mr. A. William Barlow: For two reasons.

First of all, he said that there was no constitutional question involved.

Secondly, --

Justice Felix Frankfurter: The monetary amount?

Mr. A. William Barlow: The monetary amount that the license to practice --

Justice Felix Frankfurter: Is there a difference --

Mr. A. William Barlow: -- had no price tag.

Justice Felix Frankfurter: In your view, is there a difference between the subject matter of the two charges so far as the jurisdiction of the Ninth Circuit was concerned?

Suppose the second charge stood alone.

Would that be reviewable on the basis on which they reviewed this case?

Mr. A. William Barlow: Well, she got no punishment for the second charge.

Justice Felix Frankfurter: Well --

Mr. A. William Barlow: If she got a punishment for the second charge, I would say that is was not reviewable for the very simple reason that I don't think that the right to practice law carries with it a price tag.

Justice Felix Frankfurter: Well that's -- that's the question that we have in other relations, namely, whether the monetary requirement giving jurisdiction is satisfied, which we struggled with that.

The Court has struggled with it for 50 years.

This is another case, but that would be equally true as to the second count -- or, rather, the first count if he had been given the sentence of it, is that right?

Mr. A. William Barlow: That's right, sir.

Justice Felix Frankfurter: And so, we have a case here where there were finding of -- there was a -- there was a finding against the defendant below on both counts but sentence was imposed only on one count.

Mr. A. William Barlow: That's right.

Justice Felix Frankfurter: And therefore, there is no sentence here on the count subject to review, is that right?

Mr. A. William Barlow: Not the sentence, no, sir.

Justice Felix Frankfurter: No sentence here, nothing -- nothing --

Mr. A. William Barlow: There's nothing before the Court on that because there's no sentence.

Justice Felix Frankfurter: There's no sentence, but there was a determination of the issue, is that right?

Mr. A. William Barlow: That's right.

She was found guilty of gross misconduct on the two charges.

Justice Felix Frankfurter: Alright.

Chief Justice Earl Warren: Mr. McTernan.

Argument of John T. Mcternan

Mr. John T. Mcternan: Mr. Chief Justice, may it please the Court.

Although I did not have time yesterday to get to the jury point, I would like not to get to it today but to speak to the speech point because I think that's the more important aspect of the case.

Mr. Justice Harlan, if I might reformulate the question you put to my adversary, I would say that the holding below was that it is unprofessional conduct for a lawyer of record in a pending case to comment upon that case in the manner petitioner did here because, and this is the guts of it, I think, that is an attack on the administration of justice.

And I think that is the question begging aspect of the findings of the courts below.

What is meant by “attack?”

“Attack” obviously embraces criticism and fair comment, and a lawyer's utterances have to go beyond, it seems to me, criticism and fair conduct even of the conduct of the judge himself before he brings the Court into disrespect, before he interferes with a fair administration of justice, before he loses his First Amendment protection.

Justice John M. Harlan: Didn't you say, as certainly I understood you, on the trial in the District Court, you're not supposed to talk about the cases, in public, being tried in the courts?

Mr. John T. Mcternan: I think that this is a convention which most lawyers observe.

It's one that I observe in my practice.

I do this and I think lawyers do it because they are solicitous to avoid even the appearance of interfering with the fair administration of justice, but I don't think that it is something that is compulsory upon lawyers just because they are in that situation because what they say may well not interfere with the unfair administration of justice or bring the Court into disrespect as a matter of fact.

And I think this is what we're concerned with here.

Did it, in fact, do these things?

Now, I would also like to address myself to what I think --

Justice Felix Frankfurter: I don't suppose you could prove that except by having the jurors say, “We heard about it over the radio or some gossip or the way things are in the air and travel,” and they really impose our judgment.

That's the only way you could prove that.

Mr. John T. Mcternan: Mr. Justice Frankfurter, I think --

Justice Felix Frankfurter: Isn't that true?

Mr. John T. Mcternan: -- there is another way.

I think there is another way and I think it's the kind of way this Court has used in many cases in the past.

What it does, it weigh the facts which the record show.

Let's weigh them here, a speech given over and over or a hamlet of a thousand souls deep in a plantation where the people who listen to the speech were, largely, union members who had contributed to the defense of one of the defendants.

No publicity sought by this petitioner.

She spoke to a gathering in using words which at no time were directed to Judge Wiig by name or by implication except in criticizing a ruling that he had made.

So far as her intent may be relevant here and intent was considered in Pennekamp, for example, look at this situation of a lawyer of unblemished reputation for 18 years, appearing daily before this judge in defense of her time, bearing that kind of responsibility.

Is it reasonable to suppose that she intended to bring this judge into disrespect or to attack him in a way that goes beyond the fair criticism and fair comment?

I think, Your Honor, that it requires blowing this thing up into proportions all out of relationship to the facts of the record.We have an objective way of deciding whether this reasonably could have interfered with the fair administration of justice.

This Court has done it time and again, and it --

Justice Felix Frankfurter: That isn't the --

Mr. John T. Mcternan: -- can do it here.

Justice Felix Frankfurter: That isn't the basis on which lawyers make it physical that would reasonably interfere with the administration of justice.

The basis is whether they behave according to the low standard by which even -- even by the low standard by which the Bar likes to be judged.

Mr. John T. Mcternan: Your Honor --

Justice Felix Frankfurter: That's what we've heard this morning.

Mr. John T. Mcternan: Your Honor, those standards set up the conduct whereby we decide whether this lawyer conducted himself unprofessionally, and the questions here come down to bringing the Court into disrespect or interfering with the fair administration of justice.

Now, I would like to address myself, if I may, to this concept, “administration of justice,” because I think that it embraces far more than what is involved in the adjudicatory process.

In the administration of criminal justice, we find a substantial area which is determined, in the first instance at least, by the prosecutor.

It is they who decide whether the case is going to be brought.

They decide whether it's going to be a trial of doctrine, as the Fujimoto case was.

Remember, that this is a case that exploded along with all the others after the decision of this Court in the -- in the Yates case.

They are the ones who decide to employ the conspiracy charge in its dragnet.

They are the ones that decide how remote and how much hearsay is going to be used and the -- and they also decide, if it please the Court, whether they will employ or otherwise purchase a stable of witnesses who run about the country for these political prosecutions tailoring their stories to fit the facts as they're required in a particular case.

It was these things, if it please the Court, that this petitioner was attacking.

This kind of administration of justice, she was attacking.

She was not attacking Judge Wiig and I say to you, because I've had a lot of experience with these cases, that in 1952, this sort of thing was reaching the proportions of a national scandal and I, as a member of the Bar, am proud of what my client did in attacking this kind of administration of justice and it took only a few more years for these things to reach the level of this Court.

And this Court did what was necessary in some of these respects to cleanse the springs of justice, and I am proud of that too.

And it is, I say, that a lawyer engaged in a trial of a case has the right to cry out against this kind of injustice in the administration of our temples and he has, therefore, a valuable and important contribution to make to public discussion.

And it is -- it seems to me, it is to -- it is to adopt the false ideals, false criteria of protecting the adjudicatory process, and I'm as concerned about that as Mr. Justice Frankfurter is, but I -- it seems to me that we have this area around the adjudicatory process which closely affects it, in which the bar has a duty to speak out when that area around it so intimately affects and indeed, and sometimes pollutes and taints the very adjudicatory process --

Justice Felix Frankfurter: Mr. McTernan, I --

Mr. John T. Mcternan: With which we are concerned.

Justice Felix Frankfurter: I have done my crying in my days but not while I was actively engaged in the trial of a criminal trial.

I have done my crying in a number of cases well-known.

Mr. John T. Mcternan: I know that you have, sir, and I -- I have intended no personal reference --

Justice Felix Frankfurter: I didn't think you made any.

Mr. John T. Mcternan: -- to you.

Justice Felix Frankfurter: I didn't think you made any.

I'm trying to make the distinction between crying to the public and attending to a trial in court.

Mr. John T. Mcternan: Your Honor, I think, as I said yesterday, it would be one thing to cry to the public, “Judge Wiig is a crook” or “Judge Wiig is biased in favor of the prosecution.”

This is not what this petitioner did.

This petitioner said, “The Government, the prosecutor is handing Judge Wiig a stacked deck.” That's what it -- he -- what she was saying in effect.

Justice Felix Frankfurter: But the Judge has to rule on the evidence.

The Judge has to control counsel and prosecute on defendants.

Mr. John T. Mcternan: And nothing --

Justice Felix Frankfurter: The Judge isn't a dummy.

Mr. John T. Mcternan: And nothing that she said interfered with his power or his right to do that --

Justice Felix Frankfurter: No, but what he said --

Mr. John T. Mcternan: -- in the slightest respect.

Justice Felix Frankfurter: -- related to it.

The Judge doesn't sit there like an automaton.

Mr. John T. Mcternan: This gets us down to the nub of the thing, Mr. Justice Frankfurter, because what --

Chief Justice Earl Warren: You have three minutes to finish now, Mr. McTernan.

Mr. John T. Mcternan: Thank you, sir.

I'll finish in less.

Chief Justice Earl Warren: It's all right.

Mr. John T. Mcternan: I don't think -- it seems to me that it is false and artificial to say that the -- because I think this is what it is involved in what you said, that because what she said in condemning the conduct of prosecutors and the methods of prosecutors dealt with a case that was pending, she was therefore interfering with the adjudicatory process.

I think that she was not.

She did not reach that and I think that we can rely on a good sense of our -- of our citizens to know the difference between criticizing the conduct of prosecutors which disturb the adjudicatory process and attacking that process itself.

I agree that it would be a bad thing for a witness to go out and say -- I mean, a lawyer to go out and say, “This man who is now testifying before this Court is all a matter of evil men and we intend to prove this and -- and reach the minds of the juror or put pressures on the -- on the courtroom in that respect.”

This is not what was done here.

I was -- it was suggested yesterday that we've -- that I made an over refined analysis of that speech.

I ask you to look at this speech in terms of the cc she said, the subject that she was talking about in her sentence, and break it down sentence by sentence and phrase by phrase, and you will not find -- not only will you not find what the Territorial Court said that she was saying.

You certainly will not find what my opponent here says that there the -- that she charge a conspiracy among the Judge --

Justice Felix Frankfurter: This is an abstract speech, wasn't it, Mr. McTernan?

Mr. John T. Mcternan: No, sir, it was not an abstract speech.

It was an -- it was a speech that went directly to issues outside the adjudicatory process.

Thank you, Mr. Chief Justice.

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