*1
appeal
with-
case and the file to the
board
they
me
And,
also informed
belief.
out
consideration as to reclassification
authority
put me
they
had no
deprived
rights
his
fit,
appellant
local board
they
saw that
4-D if
4-E or
Regulations.
under the
As held
to send
do would be
thing they could
Bejelis case,
provisions
manda-
Appeal
these
my
file to
case
tory
deprivation
and their
Board,
thing
the next
violation was
Stiles,
process.
of due
Local
v.
be
hear would
would
Zieber,
Cir.,
455;
169F.2d
v.
United States
Board.
Draft
Laier,
Cir.,
90;
v.
United States
happened.”
all that
“That’s
D.C.,
v.
F.Supp.
United States
And,
?
“Q.
then
Peterson, D.C.,
F.Supp.
Oh,
testify
proceeded
“A.
steps re
It is established that the
beliefs,
they
my conscientious
quired by
statute
Regulations
and the
that would be useless to continue
said
precedent to.
to be
condition
taken
they
authority,
had no
and so
because
followed,
strictly
induction
other
must
I left.”
report
Ver
wise the order to
is void. Cf.
Appellant further testified that he would
Sirmyer,
Mehren
given had is not correct that the local board no
It
authority Regulations to re under appellant, it correct
classify nor was only thing board could do and the file to to send the case
would be appeal board. SACHER et al. re contemplate particularly Regulations The OF CITY OF ASSOCIATION OF THE BAR of the case the local reconsideration NEW v. SACHER. YORK clas- light of the discussion board 183, Docket No. 22302. No. any registrant and of new sification Appeals Court of United States hearing. presented at the oral evidence Second Circuit. Regu- The 1624.1and 1624.2. Regulations emphasize this fact when lations Argued March registrant direct attention authorize July 6, 1953. Decided any his file which he be- information Aug. Rehearing 20, 1953. board has overlooked or to which lieves the Denied weight. A given sufficient fur- it has purpose indication of evident
ther provision particular is the sections
these may presented, information
that new registrant “believes assist
such as determining proper board in
the local provisions These would he
classification.” no au- if the local board had
Meaningless reclassify registrant.
thority to Be- conception its erroneous cause immediately compelled to send the *2 required by
misconduct
this record
shown
disbarment, although
judge
the
Sacher’s
“I
stated:
find in the entire record no in-
by
that his
tainted
timation
conduct was
venality
fidelity
of
interests
lack
clients,
of his
which demonstrate
—offenses
turpitude wholly
His
moral
absent here.
fault, rather, seems
to have stemmed
temperament
which led to
excess of
zeal
it
representing
his clients that
recognition
responsibility
obscured
his
of
very
the
an officer
the
of
court. Thus
qualities
my judgment
make him
professionally unfit to remain a member of
unobjectionable
this Bar
well be
competitive
commercial fields where
effort
required
subject
the
not
restraints
of
instance,
an officer
the Court.
For
* * *
negotiations
expect
Adams,
City (Wil-
F. W. H.
New York
trustworthy
highly
he would be a
Philip
Smith, New
liam C. Scott and
C.
”
**
*
representative.
effective
petitioners-ap-
City,
counsel),
York
for
petition
Paragraph 15
the
pellees.
Bar Associations
36 instances of
Harry Sacher,
sc,
Tay-
pro
and Telford
conduct,
improper
of which the court held
lor,
City,
respondent-appel-
New York
proved,
28 had been
requiring disbarment.
lant.
specifications
Two
the
were discussed in
HAND,
Before
N.
AUGUSTUS
by
detail
District
evidencing
Court as
CHASE,
CLARK,
Judges.
Circuit
particularly serious
misconduct
have
emphasized
appeal by
been
on this
re
HAND,
Judge.
AUGUSTUS N.
Circuit
spondent
discipline
influencing the
im
posed.
appeal
This is an
from an
One related
order dis
to the continuation of
barring
respondent
by
a cross-examination
Sacher which the
jury
being
permitted
respondent
misconduct while
was
under what the
during the
misapprehension
selected and
course of
knew
the trial
to be a
facts
leaders,
the communist
who had
in which he
been
failed to
correct. The
was
Act,”
under
dicted
the “Smith
held
have
sufficiently
U.S.C.A.
not
estab
advocating
contempt
overthrow of the lished
proceedings against
§
government
respondent,
the United
Sacher,
see
Cir,
force
U. S. v.
violence,
Dennis,
416, 424-425,
States v.
argues
and he
Cir,
affirmed 341
71 therefore
cannot be
said to have been
made on of criticism our cation ability, how to con- ent, lawyer knows banc, a sitting of it to me that er en seemed profession and can do in his disposed appropriate duct be of an issue ex- The fear is the need. feels if he presented. so here Ac- the full bench was “safely” cannot conduct pressed poll Judge to cordingly the Chief I asked not have upon; but since we do court, relied did; be the active which he of danger to intimation of case, remotest here the three judges available to sit otherwise, this defrauding or clients sitting banc and two for voted en hereafter judges district fear that my request given must be a Consequently was not it. re- with courtrooms their here, control as I effect; involving, cannot decision and repudiate my part I present. For believe, fact, is and errors of law of respondent, to me It seems minority idea. I be-' only the court. That of including a experience, searing after his right. lieve is not gives imprisonment, sentence severe considering responsibility Now con- proper professional earnest of appeal, I do wish to con- this court cap- quite are judges duct, that our Hincks, Judge who vey any criticism exercising there be—of need able—if visiting designated in this case sat dignity firmness degree of proper dignity with and de- who acted judicial fitting conduct necessary very seem circumstances But these votion. business. responsi- more to the ultimate point the quite un- be ours and the wisdom therefore, bility to me a which This, seems above, requir- law, judicial cited example York the New necessary ill-fitting proceedings go once apparently ing trouble does which harshness Judge difficulties of sense of court. The brothers, pellate judging from upon position, as a visitor called Hincks’ is affirmed. the sentence with apology part the criticized weigh in considerable can as the stand I cannot believe local, fellow, judge, albeit actions of premises, or the courts in action final placed have been never should He obvious. for reinstatement application an clear; His concern is position. in such when the more favor with not meet Fisher, Cir., 179 F.2d may re be termed what I believe it led him to Fisher, certiorari denied Kerner both directions backwards leaning over 606. Here findings L.Ed. 71 S.Ct. markedly fact favorable to make credibility evaluating the is no legal conclu- respondent and like then witnesses; everything upon turns fact for his petitioners and thus for the sions trial, printed transcript the Dennis For we have judge and court. brother familiarity by re dupli- with which we have a surely and not anomalous the result— exposure peated more extensive ab- precedents cated elsewhere —of judge. so if visiting had the And whose con- than lawyer disbarment of solute here, isit our “venality penalty lack is too severe or no taint duct clients,” to. duty hut to take action responsibility the interests of fidelity to representing his correct it. “excess of zeal “unobjectionable qualities clients” Thus come once the occur- making him in fields” or commercial bearing rences at the Dennis trial and their trustworthy highly negotiations “a judicial process operating through representative.” There must effective Anglo-Saxon procedure. the medium of con- topsy-turvy in “our something when planned, that trial was it When seemed that Supreme Court’s craft”—to use the tentious demonstration, well afford a profes- apt expression lawyer loses —a interest, world-wide of the capacity of very displaying those permanently sion American courts to show evenhanded with it. qualities most often associated justice litigants to all even under the diffi- law. can do not believe that cult circumstances of a mass trial involving *6 law, believe, opinion. is rather clear. conclusion, matters At its For al- aptly principle in though is stated its The fundamental course had by been marred cer- 335, Fisher, 80 Bradley v. 13 Wall. U.S. incidents, tain boisterous it seemed that 646, 355, 335, 20 L.Ed. thus: “A removal possible considerable satisfaction with should, therefore, Bar never be peculiar outcome reached from the an under the diffi- any punishment present. less where se culties But that decreed assurance was reprimand, temporary dispelled sus vere—such as judge soon when the trial took the accomplish pension, unprecedented fine—would the end summarily or course of sen- implicitly recognized lawyers, we have So tencing desired.” defense without trial controllable, open, hearing, and hence miscon or to substantia! terms of im- venality trial prisonment a where no was in duct at for their conduct during the would not warrant disbarment when conspiracy volved a trial to jus- obstruct Doe, 95 In re 2 we said tice which he concluded existed. This fitting “Disbarment is when the 387: overshadowed at once all the fine per- corrupt conduct; guilty has attorney been efforts prosecution sistent of the pre- witness, attempt or paring conducting of some to suborn a to so hard a case. But document, more, juror, forge bribe a or to a to question raised the insistent property, tilings clients’ or other judge’s embezzle whether the action did appear not dealing.” fair to honest and judicial abhorrent a vindictive than nature. upper rulings; appel These are Nevertheless he by was sustained divided seem late courts without ac judicial votes on most his substantive cept responsibility charges, which should be the conspiracy charge falling. freely and to reverse where theirs But whatever the strict merit of these penalty decisions, they of disbarment is considered too held far more immediate Patterson, Cir., popular appeal severe. See also In re 9 than sober ap- 966; proval; Bartos 176 F.2d v. United States Dis and the doubts which have Nebraska, Cir., permeated Dist. of 8 scholarly trict Court legal field1 suggest comments, 112; 2 763; For critical see Buffalo L. .L.Rev. Calif 2 Stan.L.Rev. 795; 153; 540; Corn.L.Q. 66 Rev. Harv.L. U. Pa.L.Rev. 6 Vand.L.Rev. ; ; 120; 509, 510; Frank, Law.Guild Rev. 36 Mmn. Yale Rev. L.J. Supreme 1951-52, L.Rev. 965: Ore.L.Rev. So. United States Court: 36á try misapprehension what he judges for other so knew to be a unwisdom the facts which
summary a.course. he failed to correct. Sacher, Cir., United nothing more Hence even were there affirmed Sacher v. deserved the record to soften otherwise 424-425, States, 96 L.Ed. conduct, I lawyers’ condemnation of the curiously 717. But unproven charge judgement of disbarment still feel should brought now back and re against used stated, already not stand. As theory on implied admission absolutely on depends the record decision indulge failure to plead in some formal case; contempt nothing new made ing denial. This seems to me to build respond- against brought out has been ing an on artificial case so formal and allowed nothing elsewhere been ent and ground really technical as to be distress operate the time his favor. Even at ing. perfectly It is pro obvious that this contempt, fiery oc- of the ceeding wholly contempt, rests receding into currences at the trial were charges against order entered past. the 22 incidents Of respondent by original general respondent (in to the addition and that action would never conspiracy) 6 before the occurred charge of say brought To without them. started; and the disturbances jury trial contempt charges then that such of the as trial went pear lessened for- to have have been eliminated careful formal being ward, one cited a month be- the last appellate adjudication again must To rekindle fore the close trial.2 separately denied avail ,of years heat altercations some courtroom petitioners employ here the most re it- justify permanent disbarment is after to questionable gressive pro form .practice; self somewhat dubious technicality destroy man’s cedural unconvincing character suggest that'the particular livelihood. The merits of this picked out for stress below the incidents now re-examined the ma undesirability points general and here jority; appear so far as available type for this retribution so extensive a *7 previous us, our decision seems more in conduct. with the facts than accord our noted first of the two instances The one.3 majority respondent’s cross-examina- The guilt to other incident affected the pleas to of a as tion witness impeach judge more than brethren here below charges in order criminal if United contempt proceedings respondent’s remark that credibility. was In the contemporary Attorney a charge re- “were unproven the that we held dock.” he would have had in the the cross-examination continued Jesus Jesus been first as by under This seems to have stressed permitted it was when many started, prob Harper and would have solved 20 ofU. Chi.L.Rev. 43-47; urged Lawyer trial Haber, It has been in Political lems. Troubles avoiding judge Trials, 1; the chance of and see also wise Yale L.J. Stubbs, by refraining Whitty, from earlier action. mistrial 14 Mod.L.Rev. justification exculpatory But, a later retribu com 643. For Can.B.Rev. wholly irrelevant; action, 594; seems 38 A.B.A.J. The Rec tive ments see gone conclusion, 192, 206; a the case had [1952] U.Ill.L.Forum ord speculation otherwise what Va.L.Rev. 957. happened cannot affect that out Sacher, States v. 2. See page 465, See at come. 1, 465, note 4. note page 451. at up drying a seems have been There appeared with- the witness had It incidents the defendants untoward guilt pleas judge of car- firmness to drawn exercised after weapons, rying lay later to receive concealed in June after accused ward 2% respondent’s acquittals; contention of trial. Of course there months always witness’ he wanted to show the firm whether remain the testimony by prom- pearance counsel, induced exercised at an ness toward jury early date, of such reward. trial ises even before provocation apparent. for the elements of Obviously is not. in tone. antireligious judge accepted as the But is held uncom to have example is rather It provocation time, at the so that much allusions citing historical mon he and charges agree those with him are be who merits reflect a took reciprocal allusion some lack of to tolerate litigated; hooved being attorneys indicates restraint and refrain provocative form emphasis.4 attempt from continued retributive actions at possibly ill-advised reaction, an them. We do not need formulate prosecutor’s even to Considering the express greater or criticisms of the human mortals have tended would apology later participated But to who counsel. in this drama to feel that brotherly among accord seems the disbarment circumstances now make most undesir a basis for its lack make approach incredibly sharp- to the able so unreal as this. For our to me an country. he, wife, courts should like trials Caesar’s above of criminal realities suspicion; my in life is to judgment they strong Certainly whose business one hardly display enough by solidly virtue of records can achieved scan trial comparatively reputation fairness, poise, surprise at im shock compared to occurs partiality incident what any ap trivial to afford avoidance of reprisals.5 later many a trial without pearance prejudice. of vindictiveness or The events of the Dennis touched the however, this, there still re Beyond all judge closely, just authorities suggesting ameliora consideration mains a show, initially cited that retribution started penalty, advert— to which I must only appear many hands can to be prestige the honor and touching as it does vindictive, and later per T affirmations timorous much matter how of the court—no protective. I do not believe our courts sonally doing so. It is should like to avoid give nearly occasion for so merited now well known that there repute. shadow on their highest circles of the Under the criticism grant mercy circumstances a here would Dennis case on the judicial conduct great show courts in tolerance and engaged ground understanding, consequently human counsel and even to a the altercations with strength; they promoted gain nothing, stand to certain extent them. 343 U.S. 14-89, certainly beyond discriminating, 72 S.Ct. not want to with the 451.6 do re confidence, sacrifice if hoped count the allow details which had could vin forgotten; dictive harshness to control their sympathy soon be and I can find actions. *8 and other Country See the of Professor 6. See also 60 Yale L.J. 1 cita comment 1 supra. man of Yale 174 The tions in note University, Nation “Thirty-two years Juno 1952: certainly have no wish to Moreover, ago, in another prosecution, Communist of the nor attorneys; defend the conduct Clarence Harrow pros I ever. Thus in what hoped jail ecutor ‘would have sent Christ of words 1 said: careful choice “To just you the same as would these defend Anglo-Saxon in schooled traditions one ants.’ In the comparative calm of the decorum, pressed resistance thought 1920 Red hunt no one of dis by these various occasions appellants barring holding Harrow or him in con rulings of the trial neces And tempt. tlie bar weathered many sarily abominable.” appears arguments years of his more zealous page limitation 463. This defense.” arising of incidents the one series out of rulings an over-all opinion As was not char points out, of in- alleged appellants stances acterization as mem specific acts of mis- bar, apparently conduct bers of the assumed, Dennis the district record, Isserman, found In re N.J. supported. It is difficult e£. 87 A.2d occasion for 903, 904; procedural to see how the 8 he found not proven dif- is a necessary important altercations materially fered or con- nature, intent, to be recalled when sequence from those element supported; the nu- issue weight suggest punishment ances of differentiation as to the of the relied on to be ephemeral nature inflicted. changing human conduct under stress here so drastically penalized. short, serious wounds why must the most justice be self-inflicted? I would reverse. Rehearing. Petition
On
PER CURIAM. rehearing denied.
Petition for
CLARK, Judge (dissenting). Circuit my record view I desire to
While of the points in criticism
pellant’s of law entered court heretofore opinion peti- and that case well taken are banc, yet I shall en ought to be heard separate of all vote
not ask for petition. I do think we
judges on requirements for with the complying Pac. R. hearings stated Western
en banc Co., R. 345 U.S. Corp. v. Western Pac. sufficiently point is review, purposes on the record
made judges now by only the three vote and a participate would and available active de- convincing than be no
doubtless minority The in- of the court.
cision expeditious suggests that review
terest of delay had in this court. no further say that me to
Judge FRANK authorizes ought issue views that the
he concurs banc, en but that no further to be heard
steps should be taken here view properly record and we can
state of the hope for instructions
await
Supreme procedure we Court as to the
ought to follow. *9 CARBON CORP. CARBIDE &
UNION PETERS et al. 6610.
No. Appeals States Court Fourth Circuit.
Argued June Aug.
Decided having judges
1. Two meanwhile retired.
