John DOE, an Attorney, Appellant,
v.
Sаmuel L. ROSENBERRY, David L. Benetar, Samuel M. Chapin, Horace S. Manges, Alexander Caldwell Neave, Stuart N. Scott, W. Mason Smith, Jr., David Teitelbaum, Stephen P. Duggan, Jr., Joseph E. Dyer, John A. Gifford, James H. Halpin, Roger Bryant Hunting, Murray Foster Johnson, Carlyle E. Maw, F. W. H. Adams, Ernest J. Ellenwood, John D. Garrison, Edgar M. Souza and Harris B. Steinberg, Appellees.
No. 244.
Docket 24875.
United States Court of Appeals Second Circuit.
Argued March 11, 1958.
Decided May 8, 1958.
Boris Kostelanetz, Corcoran, Kostelanetz & Gladstone, Arthur Karger, Jules Ritholz, of counsel, for appellant.
Frederick H. Block, Frank H. Gordon, of counsel, for appellees.
Before CLARK, Chiеf Judge, HAND, Circuit Judge, and BRENNAN, District Judge.
HAND, Circuit Judge.
This appeal is from an order of Judge Dawson, denying a motion by the plaintiff that the Grievance Committee of the Association of the Bar of the City of New York be directed to return to the grand jury of the Southern District of New York the transcript of the testimony of all witnessеs taken before that body and to surrender all copies of that testimony. The motion also asked that the Grievance Committee be forbidden to use the testimony or any information derived from it and that the Committee be stayed from any investigation "related to the use of aforesaid grаnd jury minutes."
The facts were as follows. The plaintiff is a member of the New York Bar against whom the United States Attorney for the Southern District of New York prеferred "charges of corruption in government and * * * criminal activity" as "a former group chief in the [Intelligence Unit of the] Internal Revenue Service." The grand jury failed to indict; but having finished its investigation on September 21, 1955, it "unanimously voted that the activities of the appellant be referred tо the Grievance Committee * * * by the United States Attorney." The United States Attorney thereupon presented the issue to the Committee, whose own attorney filed with it a charge against the plaintiff, and thereafter — with the support of the United States Attorney — obtained from Judge Dawson an order mаking available to the Committee the transcripts of minutes of the grand jury testimony. The Committee began a hearing under § 90(6) of the New York Judiciary Law, McKinney's Consol.Laws, c. 30, but before its completion the plaintiff moved before Judge Dawson that the transcripts should be returned and for other incidental relief. It is from an order denying all relief that the plaintiff has appealed. We are told, although this does not appear in the recоrd, that the Committee has proceeded with the hearing and reported to the Appellate Division unfavorably to the plaintiff; and that that court has appointed a referee to hear the evidence presented by the Committee's attorney; also that the progress оf that proceeding has been suspended by the consent of both parties, pending the decision of this appeal. The plaintiff's position is that Judge Dawson's order was a violation of his privilege that all testimony taken before the grand jury should not be disclosed.
We find it unnecessary to сonsider whether the common law would have authorized the order, because for us Rule 6(e) of the Rules of Criminal Procedure, 18 U.S.C.A. is the measure оf the plaintiff's privilege. It first forbids any "disclosure of matters occurring before the grand jury" to anyone except "attorneys for the government" with еxceptions not here relevant, and then declares that "otherwise a juror, attorney, interpreter a stenographer, may disclose matters occurring before a grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding." The рosition of the Committee is that the disclosure to them of the testimony taken before the grand jury was preliminary to a judicial proceeding: thаt is, to a proceeding upon the complaint of the Committee to the Appellate Division of the New York Supreme Court involving disciplinаry sanctions against the plaintiff. This depends, first, upon whether the hearing by the Grievance Committee was "preliminary" to any charge of professional misconduct that it might make to the Appellate Division; and, second, whether any proceeding before that court upon such a charge was "a judicial proceeding" within the meaning of the rule.
The answer to the first question admits of no doubt. Section 90(7) of the New York Judiciary Law provides that in a county like that of New York the "presiding justice may * * * appoint an attorney and counsellor-at-law, designated by a duly incorporated bar association * * * to prosecute any such proceeding"; and the Appellate Division of the First Department (Matter оf Branch,
The second question is whether a proceeding before the Appellate Division to discipline an attorney of the state court is within the term, "judicial proceeding," of Rule 6(e). It is true that it is not a criminal procеeding, Matter of Randel,
We wish to guard against the assumption that we are suggesting that the District Court wоuld have in any event jurisdiction over the dispute to be decided by the proceeding pending before the Appellate Division or its referеe, or that we might interfere with its or his possession of minutes of the testimony in question. We are assuming that these remain in the possession of the Grievance Committee. It is hardly necessary to add that we make not the remotest suggestion as to how they shall be used, or what should be regarded as their evidential competence in the proceeding to discipline the plaintiff. We merely refuse to interfere with the possession of the Grievance Committee.
Order affirmed.