*3 Judge, MOORE, Circuit Before NEAHER, District and WEINSTEIN Judges. Judge. NEAHER, District rights three civil actions were These brought to test under 42 U.S.C. § procedures constitutionality of the by York disci- the State of New used attorneys charged professional pline with at- Each involves an misconduct. case by recently disciplined torney who was Court, Supreme Appel- the New Division, Department (here- late Second thereby Division”), “Appellate inafter raising alleged denial similar claims process protection equal of due and the consolidated the laws. The cases were hearing, for March before this three-judge court, fol- district convened lowing Judge order of Oc- Weinstein’s Gulotta, in tober in Mildner v. he which concludedthat the case was one by must and determined heard statutory court under 28 U.S.C. § Although subject jurisdiction matter pleadings on the exists basis of the and us, papers accept before we cannot plaintiff attorneys that view these have amade case for relief here. With all respect Clause, Supremacy for do we our construe 1983 or constitutional jurisdiction authorizing question pass upon inferior federal procedure employed by the State courts Lippe, C., by Schlissel, Ruskin & P. discipline attorneys who be- Lippe, Mineóla, York, Richard them fore or to interfere with their plaintiff Mildner. judgments in such matters. Nor we do Paul, Weiss, kind, inserting Rif Wharton & read the statute in effect Gar- rison, by Rifkind, H. form Simon A. a new of federal Mark review between Belnick, City, plaintiff New York courts of the State and the Supreme Levin. Court of United States. investigated disciplined at- his conduct at- which say that is not to That Rather, tempting persuade remedy. Evans not to we Mrs. torneys no have inducing cooperate Inquiry, all should above believe give expound her to false statement of facts courts know investigation, by they bearing execut- that if on the apply the Constitution ap- remedy promissory *4 Judge is of Moore be dismissed. should opinion designated S. the Hon. Albert Division McGrover, upon the that dismissal should a Justice the in his con- for reasons stated merits the Court, hear and as referee to prevailing my In under currence. view alleged professional report on Mildner’s comity, and ab- standards of federalism McGrover conduct- misconduct. Justice appropriate. is more Before stention explaining hearings occasions ed on seven extensive conclu- the reasons our April and between December 1972 history sions, dis- a brief each the compiling more than 850 a record of order, ciplinary proceedings fol- in 16-page report pages. In his written statutory by analysis of lowed our found June Justice McGrover procedural the con- framework and concluded, alia, inter that Mrs. plaintiffs stitutional claims the have Evans had transferred the of an bulk raised. inheritance from her mother’s estate Background safekeeping”; Mildner “for Factual that with opened special her consent he 1. accounts Mildner in his name to hold the funds for that background facts, in stated giving purpose, passbooks; her the that Judge Weinstein’s earlier order and in knowledge thereafter without her he is- complaint, appear do not to be in against sued checks funds insufficient dispute. material Mildner, an personal purposes for his own duly practice licensed to in the State against charged Evans, were later Mrs. since maintains a law office substantially accounts; depleting those Brooklyn, New York. On October “manipulation and that Mildner’s Division commenced keep funds and his failure to Ev- [Mrs.] disciplinary proceedings against Mildner properly ans informed . . deserves following investigation by the Second criticism.” Nontheless the referee con- Department Inquiry Judicial on Profes- against charges cluded that none sional charges Misconduct. Three by Mildner had been sustained the evi- professional misconduct were filed cross-motions, ap- dence. Thereafter against him. As Ap- summarized in the parently briefed, fully were made pellate Division’s final decision in the Division to confirm and case, charge alleged first wrongful a report. disaffirm the conversion to his own use of en- $17,43,0 January 28, 1974, Court, by trusted to On personal him that friend, a Ro- opinion, granted Evans, a berta brief pretext the motion on that the mon- ey report disaffirm thereby would protected and denied Mild- stating: ner’s claims motion to confirm after Mrs. Evans’ husband pending divorce action. The second opinion, contrary “In our re- charge alleged that attempted Mildner port, charges fully all three sus- impede very obstruct Inquiry proof.” tained Mildner, App.Div.2d re (2nd Dep’t. , N.Y.S.2d 0 35 ciplinary proceedings. He adds that suspend The Court went Mildner grows protection equal denial of out years commencing period of three appeal least one as of adding: the fact March after original juris- from the court of in “In view of all circumstances of an diction or determination admini- considering by the dicated record and body liti- strative is afforded all other respondent’s evident lack of candor gants every person other contrition, opinion our except disciplined of New York suspension from the of law attorneys. period years for a of three would be alleges Mildner also a denial of due appropriate discipline a suitable and process suspension in that his was al- imposed upon respondent.”2 to be legedly on a based record which lacked Appellate Di On March support evidence to the de- sufficient vision motions Mild denied various termination, suspension and that the stay ner for a the effective date involving in connection with a matter suspension, appeal, leave to or re- person with whom he was not argument quantum punishment on the attorney-client relationship. Finally, imposed the court. A motion was three-year suspen- Mildner adds Appeals then made in the Court of seek imposed sion was cruel and unusual leave to to that Court on three punishment under the circumstances. grounds: (1) process a denial of due suspension in that order had been 2. Levin *5 testimony based on recanted of an admit Levin, Plaintiff, attorney Milton witness; (2) perjured ted error admitted to the Bar of of New the State Appellate Division’s reversal of ref the 17, 1971, York in On November 1934. findings; (3) eree’s and a failure to es Appellate appointed the Division Solo- charges tablish as a of law. matter Klein, pro- mon Esq., A. to institute and motion, sides, fully by This briefed both disciplinary proceeding against secute a opinion. was denied without In re Mild charges stemming Levin on from a 1970 ner, 516, 34 N.Y.2d 357 N.Y.S.2d 1025 Department inquiry Second conducted (May 9, 1974). 313 N.E.2d 796 by (“Froessel Hon. Charles Froessel W. July 25, 1974, This action was filed inquiry”), into the activities former Appellate stayed and the Division Mild- Supreme State Justice Michael suspension 1, ner’s until November During M. D’Auria. in- Froessel Judge 1974. Weinstein’s order of Octo- quiry, Levin had discussed with investi- 23, 1974, stayed suspen- ber further gators certain transactions between sion order until court this was convened. (Levin’s) D’Auria and his real estate stay The has continued in effect since partner, Gruber, produced Maurice had hearing 12, 1975, pending on March given documents, various and had testi- determination of the action this court. mony inquiry. discipli- before the The Mildner raises nary petition, several formally 18, constitutional April filed on complaint, alleges claims here. 1972, charged his he that Levin had testified deprivation property of a valuable falsely $30,000 when he stated that in right privilege prac- and license to bonds transferred D’Auria —his thereby tice law living, earn a loan, alleging was a it was in reali- professional reputation' well as his ty part legal payment of a fee to D’Auria —in rights violation process of his to due zoning ap- rendered in connection with a protection equal plication Plainview, laws. The New York. With process grounded claim is respect on production the al- to Levin’s of docu- leged failure of ments, petition charged New York four provide appeal right him an admittedly as of backdated documents —a original jurisdiction the court of deed, acknowledgment it, dis- a blank Id.

2. motions, opinion includ- Levin’s relating note, without promissory one to a appeal request for an apparently the and submitted deliber- boat —-were false 643, right. N.Y.S.2d N.Y.2d ately inquiry. as of to obstruct 1026, N.E.2d 555 On October on No designated commenced This action was the Hon. Morton B. Division Silberman, On December vember 1974. Justice York New temporary Court, re for a Levin’s motions as referee to hear and convening alleged straining professional of a report order and the on Levin’s Judge granted by three-judge court were Silberman conduct- misconduct. Justice hearings December Weinstein. On ed on ten different extensive designated Mild during statutory days January to hear December 1972 and designated Following ner post- to hear Gulotta was submission stay hearing argument, The con this memoranda and oral case as well. hearing concluded, tinued in effect since Justice Silberman his 25- August report pending page determination dated March written court. innocent of the action that Levin was of both they charges, were sustained claims Levin raises constitutional cross-motions, Thereafter evidence. here are not dissimilar Mildner’s. apparently fully briefed, were made Judiciary The first that New Division to confirm and Law, process violates the due § report. request disaffirm Levin’s protection equal clauses the Four- argument on the motions oral because, all teenth Amendment unlike denied. professionals other licensed the State September affords no York, On it hearing Division, on the basis of the as of from an adverse de- report Silberman, attorney disciplinary pro- Justice ruled in an cision upon ceeding. the motions as follows: The other claims are all that process 90 violates the due clause in contrary opinion, “In our ways: discipline various allows charge, report, the first as it insofar *6 imposed by the trier of without fact relates a document dated March hearing parties, observing the the de- involving of the transfer a Chris witnesses, parties meanor of the or boat, by Craft was sustained the evi- hearing arguments counsel; oral of it reporting dence. The Justice’s find- empowers Appellate Division, the ings respect of to the remainder fact, impose discipline of trier with- charge respect the first and with rendering out a written statement of charge the second are confirmed.” upon the evidence it relied or the reasons thereupon Levin sus- ordered The Court order, making any for its and without practice pended law for the of from findings fact; lastly, written of and years. three empowers to im- Division pose discipline on the basis of no evi- sought On October Levin summary, dence. In Levin he adds that appeal leave to of to the New York Court deprived been and will be of valu- Appeals suspension order, from the rights, property privileges able im- stay pending determination of the mo- (including prac- munities his license to appeal, appeal tion for leave to and an professional reputation) tice and his law right ground of on that his case in violation the United Con- States presented substantial constitutional stitution. Following granting questions. 3. Gerzof stay filing interim and the Klein’s fully Plaintiff, Gerzof, opposition, Ap- briefed Julius is an the Court of peals, 20, 1974, on admitted to the Bar of the State of New November denied Dep’t. (2nd App.Div.2d Levin, N.Y.S.2d re

3. Appeals, 18, 1972, of the motion in the Court April in On York Court, 21, 1974, discipli- on November de- instituted Appellate Division nied Gerzof’s motions. against him. nary proceedings action was commenced on Novem This charges professional miscon- Two 4, 1974, ber 1974. On December against also Gerzof filed were duct temporary investigation motions for a re Gerzof’s relating Froessel straining convening order and the of a D’Auria. As summarized Justice granted. three-judge court were On De final decision Division 19, 1974, statutory charge cember court des solicit- was first case the ignated to hear Mildner v. Gulotta was advising ing other two and designated stay zoning ap- to hear this case. The legal on fee to reduce has continued effect since the hear a sum plication to make available so as ing 12, 1975, pending on March deter improperly to as- money used mination of the action this court. granting applications. sure charge that of testi- was Among The second several constitutional Inquiry, fying falsely where at a Judicial here, claims Gerzof raises his basic due committing above denied process equal protection Gerzof claim, aris- solicitation. out of a denial of an as of original juris- from the Appellate Di- On October diction, is identical designated B. Mildner’s. His Morton the Hon. vision process second claim is a further due Silberman, the New Justice protection equal assertion hear and that his sus- Supreme Court, as referee to pension upon alleged based professional a record insuf- report on Gerzof’s ficient as a matter of law to filed a sustain the Silberman Justice misconduct. against determination made report supplemental him. Fi- report nally, hearings case, as in holding Mildner’s Gerzof claims September after three-year suspension, his against charges Gerzof, in which under all the on the circumstances, charges be cruel and had been sus- unusual both he concluded punishment. Thereafter evidence. tained made were Mildner, cross-motions Levin and Gerzof seek sub- confirm and disaffirm Division stantially the same relief here: a declar- charges Concluding report. both ation that pro- evidence, were sustained deprived cedure them of constitutional summarily September Court, rights injunctive permanently relief report suspended confirmed enjoining suspending defendants practice from the of law Gerzof them from the law years. Gerzof, period three In re State. *7 App.Div.2d 359 N.Y.S.2d 76 Ap- to to of Leave the Court Disciplinary Procedure New York by stay peals a were denied and thereafter statutory which framework The order of sus- The basic the Division. proceed- attorney disciplinary however, pension extended, al- to underlies Judiciary ings Law is New York § low Gerzof to seek such leave from the portions Following grant- are set Appeals. of which of the relevant the margin.4 Attorneys briefing ing stay licensed in forth the of an interim and full and control over law and all practice the “§ “2. The supreme ^[*] 90. Admission practice law, acter supreme persons practicing ^[*] court and the committees in each appellate court ^[*] to and appellate and shall department ^[*] division or removal counsellors-at- have assuming division of ^[*] ; power is au- char- from to thorized to or remove fraud, sellor-at-law admitted guilty of justice; conduct such admission for preme deceit, court prejudicial and professonal from censure, the crime or office hereby appellate to any misrepresentation misconduct, malpractice, suspend any the administration to misdemeanor, authorized attorney division of practice who is from and eoun- to revoke practice or the any su- or every court of the N.Y. Judici- officers State. practice in State are ary 90(3). Court, the Law and § York New quite four 6 of clear contemplates 90 makes Subsection statute obligation placed upon an shall that Court Divisions comply procedural jurisdiction re- Division with in their have exclusive process by, requiring say possible, where Departments respective Judicial delivery attorney personal professional to the accused miscon what constitutes Authority charges against him, County copy of the of a and Water duct. Erie allowing opportunity Co., him an N.Y. be heard Water Western denied, in does his defense. The statute not cert. N.E.2d specify form of the nature and such L.Ed. 892, 73 S.Ct. hearing, may even Suspension or conduct it. of an who or removal doubt, however, op by any Appellate There is no attorney Division responsibility adjudicating suspension in ultimate or removal as erates suppression is which shall command the siding from from the ished as sion this him must be sellor-at-law thereafter is within or formance or as another. and counsellor-at-law made. been notice incorporated amended as a amend the order of removal pellate within which such and if required attorney as advice sellor-at-law board, “It shall be “6. “If a certified “If “In case of “b. The “a. The established principal suspended to the law’ removal hereafter scope ^[*] section, limit the command to insert part office, heretofore Before an justice in relation division shall commission justice application a order, In addition it shall attorney thereof. thereof, provisions contempt without appearance giving any a violation or ^[*] be inserted in before bar an respondent of the to the satisfaction or removed as any so counsellor-at-law, as delivered or copy removed copy suspension only, association, of law in agent, requires may duty thereto. each to another of an information in connection or suspension served for admission to any ^[*] upon application of such suspended other as an application, following acts, rendered court. to desist of the counsellor-at-law state thereof order of court, clerk or or counsellor-at-law to attorney upon by adding attorney any form, orders hereafter public ^[*] charges against order or similar to those him forbid the division of the or, shall appellate office, period prescribed judge, may further employee and refrain or removed or of suspension upon personally and the order or of authority. provision continue, practice. required, sfs be or coun- case to wit: of such of time thereto opinion justice, either coun- pun- divi- limit such pre- per- any any ap- subject ings ing tion or counsellor-at-law ciplinary proceeding against cles peal this state.” be a petitioner tion must be allowed to defend himself justice, them, may such upon good penses one any judicial division of the or charges at-law charges personally, tion behalf to heard must be the said presented, upon be supreme “8. “The final order of attorney served may judicial department, necessary costs and disbursements of the six, year to the court charge upon ^[*] upon questions may charges. him bar Any so served does association, county expense justices appellate such were relation section court to which the be deemed presiding his after be personally, allowed any association cause shown and that he cannot with due petitioner and the make served in $ prosecuting made defense. presiding mail, publication department, attorney and counsellor-at-law presented limitations treasurer of seven, supreme such counsellor-at-law, under suspension division any preliminary justice shall have rendition of the appeals an of law involved attorney ^[*] professional just by county. the same order any such or In all justice of the constitution of opportunity this such respondent any prescribed appear, may manner in such attorney charges directing any proceedings, upon ^[*] or an section, cases charges, and counsellor- or such other expenses county may direct, to whom the removal, otherwise as majority *8 attorney time right conduct of division in an final such terms to be other where the investiga- judgment, have presiding in a dis- be served or appellate proceed- corpora- diligence ^[*] therein, applica- against the ex- includ- includ- and he within within to order being shall arti- paid than been ap- and his or long-standing prac- appears disciplinary proceedings It to be a rests with the Divisions, only Appellate for- Appellate Divisions, subject once tice of the several disciplinary proceedings are insti- appeal mal tuted, limited tjie proceedings a ref- Appeals to refer certaih classes of cases. ap- report.6 to hear and Referees eree pear expressly pro Subsection 8 of 90§ although types, of two petitioner respon that either vides powers roughly to be coextensive. seem may right appeal dent as of from a final Referee, The first Official Appellate discipli Division order in a Judiciary denominated in the Law §§114 nary proceeding “upon questions lawof seq. et The second is the Referee therein,” subject only involved to certain Inquire Report, CPLR §§ appellate jurisdiction on the limitations 4212, referee 4320. In either case the Appeals of the Court of in the New York hearing, conducts a and thereafter files Constitution, Article 3.5 Under § findings report which sets forth his present practice those limitations the fact and of law thereon. conclusions appears that, to be for cases such as Following filing transcript of the these, originally decided and unanimous Appellate report and his with the Divi- ly by Appellate Division, sion, Court, upon of either motion only as of exists when there is party, initiative, may or on its own con- directly involved the construction of the report firm or disaffirm the in whole or constitution of this State or of the findings part, make new States, United 5601(b)(1). CPLR § taking testimony, without additional Otherwise, appeal by permission hearing. order a new CPLR Appellate Division or the Court of 5501(c); 4403. CPLR Wein- § § Appeals, 5602(a). Cf. CPLR Javits v. § See |f stein-Korn-Miller 5501.20. Stephens, F.Supp. (S.D. 140-42 N.Y.1974). And the Appeals Court of statutory provisions have led These “directly has construed involved” not to findings holdings to the effect process questions arising include due out discipli referee in conclusions of the Division decision and way nary proceedings bind in no are “necessarily not involved in the deci Division, on the sion of Fry the case.” Id. at 142. See or not determine whether must itself berger v. N. Company, Inc., W. Harris g., charges E. sustained. have been 273 N.Y. 6 N.E.2d 398 cf. Broome, 213 N.Y. A.D.2d In re Levy, Matter 255 N.Y. 174 N.E. (2d Dep’t), rev’d on other S.2d grounds, 942, 224 N.Y.S.2d 10 N.Y.2d Ap- Under the current This rules of the does 179 N.E.2d 862 pellate Division, Department, mean, find however, referee’s Second that the discipli- inconsequential. normally ings that Court institutes and conclusions proceedings nary upon opportunity the recommenda- to observe he has the Since credibility, duly joint tion of a constituted bar as- determine the witnesses and grievance committee, sociation con which has to serious decision is entitled his power preliminary to conduct a in- Division. sideration quiry specific complaint pro- App.Div. into a Gondelman, In re (2d Dep’t), fessional misconduct. See Rules N.Y.S.2d modified Supreme Court, Appellate Division, App.Div. 889, grounds, 20 N. other Sec- Department (McKinney 410, aff’d, ond N.E. 691.4 Y.S.2d 285 N.Y. Supp.1975). credibility But even on 2d 553 appointed Previously 5. Court stated that “lie was an of- Article § 7. referee, provisions law, ficial under the Jones, App.Div. 782, re to whom this court was authorized to refer (1st Dep’t. 1913), denying N.Y.S. 65 where in proceedings Id., character.” attorney’s request that an Official Referee X.Y.S. at 60. appointed report removed, to hear and

191 Claims Constitutional may, Appellate Division Plaintiffs’ questions, judgment on has, oc substituted put here in the claims raised To g., In E. the referee. for that of casion necessary perspective, proper to 115, 123, Kahn, N.Y.S. 328 re A.D.2d 38 on, closely precise nature more focus aff'd, N.Y. 87, (1st Dep’t), 2d 95-96 disciplinary proceedings. 434, N.E.2d 752, N.Y.S.2d 2d instructed, somewhat been We have fashion, they cryptic “of a Ruffalo, In re quasi-criminal nature.’’ pro- points A few other about 1222, 551, 544, 20 L. cedures used cases are Stevens, Erdmann v. Ed.2d rejection First, worthy of note. (2 1972). As Cir. predicated findings need not be referee’s previously dis indicated, must view we judicial they clearly proceedings ciplinary were as rather on the conclusion Second, Id. to than administrative on the motions erroneous. in nature. at 1208-09. disaffirm, does not there confirm and obligation afford an appear to to Perhaps important element most hearing argument or oral concern- oral proceedings, and that which such modification, rejection adoption, or gives unique status, their is the them Third, practice, recognition report. if not universal same court obligation acting law, appears attorneys, to be no there whom before as its officers, practice are admitted ap- to make on the Division judgment must sit in tribunal which findings propriate reasons or state its charges professional misconduct referee, agree it does not when with the against them. There can be no doubt appears It that all that is deemed neces- power about such a court’s inherent regard sary summary in this is a state- autonomous control over the conduct of reaching opposite ment conclusion of 8 Disciplinary proceedings, its officers.7 charge particular law to as whether a perhaps susceptible to a label while such was sustained the evidence adduced “quasi-criminal” slích a terse to hearing. Fourth, as a referee description "comparable a criminal appointed report, to hear and the referee id., proceeding,” rather than to a civil power determine;7 particu- has no reality neither. 458 F.2d at are in lar, power has no he to dismiss Ming, (7 In re 469 F.2d charges, even if he should find them un- Ming 1972). it, put As the supported by re evidence. “ proceedings O’Neill, are not lawsuits App.Div. 75, 80, ‘[s]uch 171 N.Y.S. litigant parties (1st rather Dep’t 1918). between but officers, among whom, seq. present Seo OPLR § 4301 et context, lawyers are included. The court’s point the Sec- summarized 8. The well lawyer’s professional control over life in Krdmann: ond Circuit responsibilities derives from his relation to the prac applicant admits an “The court alone compendiously of a court. The matter was Thereupon an of ho becomes it. tice before put by Cardozo, Mr. Justice while Chief discipline, power The the court. ficer of Judge Appeals. of the New York Court of applicant power mem to admit an like the “ ‘Membership privilege in the bar is a bur- exclusively bar, bership with the rests (Matter Rouss, denied with conditions’ States, United Theard v. court. N.Y. 116 N.E. (1957) ; 1 L.Ed.2d 1342 appellant was received into v, that ancient fel Culkin, People Karlin 248 N.Y. ex rel. lowship something private gain. more than The nature of 162 N.E. 487 court, and, He became an officer of the like relationship court and between the itself, agency the court an instrument it was summarized before admitted justice.” People advance the ends of ex rel. Frankfurter, speaking for a unani Justice Culkin, 465, 470-471, Karlin 248 N.Y. in Theard: mous court (354 “ 162 N.E. 489.’ systems courts, judicial ‘The two 1342.)” 1 L.Ed.2d judiciary, judicatures federal state F.2d at 1208-09. the conduct have control over autonomous *10 192 recognition out of a inquest in erence arises of an in the nature are quiry attorney relationship special respond between to the conduct grants him a license which purpose and the court They not for ent. it, practice so well summarized to before

punishment, rather to deter but seek by Judge MacMahon: fitness of an officer mine the capacity to continue and relation- and delicate “The intimate protect public courts and the lawyers has ship courts and between per from the official ministration of judiciary’s long justified careful parte Wall, practice. unfit to Ex sons integrity qualifica- scrutiny and 265, 2 U.S. S.Ct 27 L.Ed. practice it. before of those who tions question Thus real at peculiar, un- Thus, if not it be would proceeding issue in a disbarment Legis- reasonable, for the New attorney’s public interest and responsibility place for dis- lature right practice profes to continue to ciplining of dis- and review public sion imbued with trust. In re ciplinary proceedings than elsewhere (7th Fisher, 1950), 179 F.2d 361 Cir. body is as well No other courts. Kerner, cert. denied sub nom. et al. qualified determin- interested in or as Fisher, attorney qualified whether an (1950).’” L.Ed. Id. Stevens, su- practice Javits v. law.” F.Supp. pra, at 141. public Of course the interest professional analysis not ethical bar is not situation has This only disciplinary changed passage at stake in As interest of time. with the proceedings. perceived it The sanctions involved can Marshall Mr. Justice Chief profes ago: century amount to loss of livelihood and and a half over a reputation. sional Erdmann v. See Stev hand, profession of an one “On ens, supra, 1209-10; F.2d re great importance attorney to an is of Ming, supra, 469 F.2d at 1355. These prosperity of his individual, consequences are such drastic for the depend its exercise. life whole pow individual that the State’s ought not to exercise practice er to divest one of a license to capriciously from lightly taken be abrogate federally protect law extremely other, de- it is him. theOn rights. Stevens, supra, Erdmann v. ed respectability sirable 1210; Ming, supra, 458 F.2d at In re maintained, its should be bar Avery, F.2d at 1355. See Johnson pre- harmony should be with the bench 490 n. 21 L. objects, con- some For these served. Lopez, Ed.2d 718 Goss v. Cf. ought discretion, trolling power, some 42 L.Ed. This discretion reside in the Court. 2d 725 great ought mod- with to be exercised judgment; but it must eration time, however, At the same exercised; no other tribunal practice particular license to law decide, of removal in a ease can nature, State is so local even to the bar, of in- the same means point admission to localized If itself. there as the Court formation courts, that federal before the various revising tribunal, possesses be a have not altered constitutional standards controlling authority, will that tribunal traditionally wide discretion afforded delicacy always interposing feel the “in the establishment and State courts only authority, and would do so professional application of standards plain case. moral character be ob conduct and served mann v. also Stevens, supra, Tang Appellate Division, (2 court officers.” Erd F.2d at 1210. This def- is, “The exercised with (cid:127)X- we power think, -X* is one which incidental ^[*] great caution, -X- to all ought -X* but which Courts, ^[*] necessary preservation protection equal inquiry. and is for the of an There *11 decorum, respectability recognition that, disciplining of for the must be in profession.” may legitimately professionals, of the the State differing find reason conclude that (9 Wheat.) Burr, parte 22 U.S. Ex procedural safeguards appropriate are 530-31, (1824); 6 L.Ed. 152 see Ex professions. for different v. See Semler parte Garland, (4 Wall.) 333, 71 U.S. Oregon Dental Exam State Board of L.Ed. iners, 608, 610-11, Equal 1. The Protection Claim 79 L.Ed. 1086 Pordum Board v. claim, As we understand this the al- Regents York, of of of Cir. leged differing treatment is the denial (2 Thus disciplined attorneys right equal protection problem no there is when scope appellate the full review afford- rights appellate the denial of to attor ed “litigants,” and, to all par- other in neys to the same extent afforded other ticular, “professionals” all other whose litigants professionals reasonable, or is licenses to are revoked or sus- resting “upon ground differ some pended. dispute appeals There is no that having ence a fair and substantial rela right as quite limited in object legislation, tion so disciplinary cases. Since the persons similarly that all circumstanced original Divisions juris- sit as courts of shall be treated alike.” cases, they diction in these cannot act in their capaci- finding traditional or more usual We have no difficulty ty primary as the appellate constitutionality court of ju- this standard of ade fact, parties quately risdiction. In agree as all met in this case. We stressed with argument, at oral reasoning when the Judge Di- in MacMahon vision Javits, acted reports, supra, on the referees’ wherein he concluded there was functioning equal in an protection ca- no denial of in New pacity. Instead, Appeals the Court of York’s is failure to make Article review appellate jurisdiction proceedings sole court attorneys. available cases, in these right only and is so claim here is no more than another facet for questions certain or Javits; cases no sum- of the one made it makes contrast, marized above. decisions difference whether one focuses on the which find pro- other New York disparity licensed or on the means itself various guilty professional fessionals redressing miscon- of it. subject duct are appel- much broader above, discipline As described late review.9 attorneys special responsibility is a which, ultimately, itWhile is true that must rest with the where right legislature courts. to an is The New afforded some liti gants capriciously arbitrarily judicial decided it is best for body others, denied to is which licenses there a violation of to func Equal Clause, Lindsey right tion also in situations Protection where the Normet, properly continued use of that license is question. Thus, vesting (1972), called into L.Ed.2d 36 fering identification of dif original jurisdiction beginning of only Appel- with treatment pointed Appendix 9. As out to Levin’s C Article 78. N.Y. Education Law § 6510 Brief, Regents, (4)'. provides the New York Board of under Article review 6510(3), of, alia, N.Y. Education Law § acts as the inter determinations affected statutory involving trier-of-fact 7803(3), all cases an error of law. CPLR § or not charges professional physi- supported by misconduct of substantial evidence on the en- cians, chiropractors, engineers, record, 7803(4). accountants tire CPLR § professionals Stevens, supra, P.Supp. and other licensed covered 10. Javits seq. Royster Education 140, quoting Law 6500 et Review of F. Guano Co. S. such Virginia, decisions lies with the Divi- sion, Department, pursuant CPLR, Third L.Ed. judicate the issues arise cases matters over late Divisions just protection. equal in a do manner this nature no denial is of itself logic could no stretch of called that arbitrary appeal as denial of an Nor agree capricious. We questions law or fact of Having on all of arbitrary vio- there is no the court Javits that capricious. vested proce- equal protection in the lation of function with initial determination adopted by re- dure New York rather than administrative the courts disciplinary proceedings. F. view might legislature agency, well have Supp. at 141. *12 obligatory judicial re that the concluded 2. Due Process The Claim normally presumptively— not view —if challenge decisions Di- required the for administrative Plaintiffs procedures Judiciary determina the initial under Law required when vision’s not legislature by constitutionally in fail- as defective a court.11 90§ tion was attorneys full, that when apparently concluded afford accused to a opinion among meaningful opportunity the be no division fair and to is there judges by statutory who Division trier-of-fact. heard the several matter, finally they complain (1) the specifically, that a More rule Appellate findings briefs, beyond and conclu of written Division's submission par- they opportunity not involve do have sions, the extent there is no to the to body by questions, to be con are heard the ties or witnesses constitutional clusive, losing adjudicative responsi- charged the to the extent with (2) at least bility; requirement, party convince either is no is unable there Ap appropriate exonerating Appeals or when a referee’s conclusion discretionary disaffirmed, summarily pellate afford a Division to appeal. that either the reasons disaffirm- findings ance be stated or written plaintiffs have While court; (3) fact be made ap unfairness of this much made appeal as of from an ad- there is no arguable proach opposed to the wis original verse decision of jurisdiction. procedure af that would dom of some proce- in These defects review, Equal appellate ford a fuller they brought dure claim about sus- meant to strike Clause was not Protection pensions on the basis of no evidence. legislative classifications that are down unwise, improvident merely capable All ap of the criticized features pear legislature present improvement. disciplinary pro Here the Department, it was neces cedures may well have concluded Second grave responsibility ostensibly sary compliance conducted in to entrust 90(6) adjudications Judiciary with of what consti of the § for final Law. Sec note, ju tion professional plainly we misconduct a not tutes uncon instance, body does, to stitutional on in the first its face and in iv< dicial appear comport provide than of no less stature with forum traditional legisla process. qut tions of due And The critical Division. Appeals, required truly tion is whether it can the Court be said ture has tha procedural oper limita of those with its constitutional features consistent deny cases, ates to as its crowd accused in other well funda tions hearing docket, obligatory mentally against charges provide review fair ed thereby only resulting them, final extent decisions an un such sum, ju application previously constitutional indicated. statute. finally ad- We think not. bodies suited to dicial best Davis, K. Law Administrative Text distinctions between review of (presumption judicial judicial reviewability 28.02 review of ad- of ad- action and action), action) (outlining ministrative § 16.03 ministrative Crow, In re agree First, while we (1959) (Douglas, 3 L.Ed.2d 1025 opportunity hear and the de observe J., dissenting opn.); Gressman, ele Stern & is an essential meanor witnesses supra, weighing appraising Sec. 19.5. ment in the Wedding, Wingo testimony, see Second, respect to the criti L.Ed.2d provided cism that the court no reasons importance (1974), diminishes findings overruling new the ref developed and inferences facts are when cases, erees the Mildner and Levin we to cred drawn without reference have not been referred to and are un already pointed out, ibility. a disci As any authority aware of proposi for the plinary proceeding is not full-blown tion that the absence of such a statement inquest gathering of facts trial but an —a judicial in a process. context offends due attorney, concerning the conduct of cases, The rule in administrative law likely subject to be illuminated more many of by plaintiffs,12 which are cited attorney’s own evidence of help is of little in disciplinary proceed is said or said acts than what ings. Special applying factors to admin *13 report in The referee’s someone else. proceedings istrative which call for a exemplifies precise Mildner case written findings statement of and rea evi which the situation in documented present sons are not Davis, here. See K. attorney’s questionable dence of 16.03, Administrative Law Text 16.07 §§ with another’s transactions financial money outweighed vacillating tes far However terse the complaining timony victim. of cases, they Division’s decisions in these disagreed made it clear that that Nor, Court opinion, in our is it con respective with the referees’ ultimate stitutionally required that in Mildner conclusions and Levin toas have Division as final arbiter of the facts compiled what evidence showed on personally attorneys heard the accused professional the issue of misconduct— or other witnesses or have allowed oral question a mixed of law and fact toas argument upon motions to confirm which the Division is the statu reports. The or disaffirm the referees’ tory arbiter. That the final decision advisory was use of or referees masters as adverse is not evidence in triers-of-fact is a well-established that the court reached it in a manner in busy appellate strument of courts exer compatible process. with due cising original jurisdiction. The Su preme itself utilizes the Third, Court respect with to the criticized de disputed appear in when factual issues right, nial of there is abund original R. Stern E. actions. & Gress authority proposition ant for the that man, Supreme Practice, outright Sec. 10.12 abridgment denial or of inde Although (4th 1969). at ed. oral 407-08 pendent, obligatory appellate review of argument to the Court is allowed judicial decisions is not a denial of due matters, id., report master’s in such this process. If this is so even in criminal ordinarily is not the case in disbarment cases,13 “quasi-crim it is a so in fortiori proceedings. Capshaw, S. In re See 65 these, inal” such as cases Javits v. Stev (1945), Ct. 673 and 67 1345 ens, supra, S.Ct. F.Supp. 382 at 140. parole) ; Goldberg Kelly, 254, 12. nial of v. Miller v. 397 U.S. 90 Iowa State ASCS Committee, F.Supp. 1011, (1970) (state 415, (S.D.Iowa 25 L.Ed.2d 374 419 S.Ct. 287 (termination 1974) employment govern ment of in reasons welfare benefit termina Morrissey employees). decisions) ; Brewer, Ward, ment tion v. 408 See also Thomas v. F.Supp. (M.D.N.C.1974). 374 33 L.Ed.2d 484 211 (1972) (similar parole statement revocation decisions) ; States ex rel. v. United Johnson 13. See authorities collected in Javits v. Ste- Chairman, Parole, New York Board vens, State supra, F.Supp. at 140 n. 29. (E.D.N.Y.1973) (de- F.Supp. ground I missal on the of abstention. Finally, to the claim support evidence, find for this conclu additional of no suspension on basis reasoning sion the Court’s Attorney agree General we Huffman Pursue, Ltd., relitigate v. attempt appears L.Ed.2d 482 Read nar proceedings. In the merits State rowly, that case held that the standards As not intrude. that area we Younger Harris, stated v. aptly Judge v. noted MacMahon Javits (1971), 27 L.Ed.2d 669 Stevens, supra, a review State justify must met to interven federal proceedings possible constitutional for proceeding judicial tion in a exclusively jurisdiction as to State lies error losing litigant which has not exhausted F.Supp. Court. his State remedies. Subse specifically, 1983 does More quent relitigate cases leave no doubt that de in a fed extend the evidentiary n pending cision reaches York dis questions New eral district court ciplinary proceedings. Anonymous v. adjudicated mer have on the been City Association the Bar proceedings, upon its in State the claim York, (2 Cir.), petition F.2d support there no was evidence for Strickland, filed, July (U.S. cert. 44 U.S.L.W. 3005 Wood action. 2, 1975) 1001-03, (No. 75-10); Anonymous L.Ed. J. 308, 95 S.Ct. County, Bar Association Erie 2d 214 (2 Cir.), petition filed, cert. reject claims those therefore would We (U.S. 26, 1975) (No. U.S.L.W. 3001 June com in the Müdner raised Gerzof Kern, 74-1642).14 Wallace See also suggest the lack plaints which (2 520 F.2d 400 evidentiary the decisions basis *14 equal process or of due denial itself agree plaintiffs’ I do not re constituted, when protection, or readily are contention that these cases and decreed, cruel discipline was sultant principles distinguishable from the MacKay g., See, e. punishment. unusual simply enunciated because Huffman Cir.), (9 cert. Nesbett, 846 F.2d 412 v. proceedings involved L. 24 90 S.Ct. denied, U.S. 396 longer “pending” at some here are no Husle, Ed;2d 391 v. (1969); Jones 425 courts. Had all level State denied, U.S. Cir.), (8 393 cert. F.2d 198 in the claims raised here been raised ; (1968) 167 21 L.Ed.2d 889, 89 S.Ct. they apparently courts —which State (6 Ginger Court, v. 372 F.2d Circuit adversely finally were not —and decided denied, Cir.), cert. 387 U.S. S.Ct. plaintiffs, appeal lie as to a direct would (1967); re In L.Ed.2d 998 right States a matter of United Cir.), (8 Rhodes, cert. de F.2d 411 Supreme under 28 Court U.S.C. § nied, L. 386 U.S. supra, Pursue, Ltd., Huffman v. State Clark Ed.2d 349 issuing Moreover, 95 S.Ct. at 1209. 1966); Washington, (9 F.2d 678 Cir. stay judgment a final of a State Gately (10 Sutton, significant is at least as an intrusion Michigan, 1962); Bar Saier v. State enjoining prose into matters State denied, (6 Cir.), cert. 293 F.2d 756 disciplinary proceedings prior cution L.Ed.2d 343 judgment. 95 S.Ct. at 1210. See noting Younger that the standards of Harris, 746, Abstention (1971), may L.Ed.2d 669 not be avoided failing simply perfect appeal, outset, an for and As noted at outlined, cases, also makes clear that the ex in the these reasons Huffman exception haustion doctrine makes no for opinion, especially for dis- writer’s call prior 14. in this This had settled law Circuit even result been Erdmann v. Huffman. Stevens, supra. relief, injunctive granting raising Pursue who those avoid constitutional though the that even Court held empowered-— issues State courts are obviously had be- obliged trial court’s decision indeed consider. See 95 S.Ct. —to nonappealable, come final n. at 1211 ap- should have “the District Court argue, not without some Plaintiffs also Younger plied the tests laid down force, claims that constitutional determining proceed whether to to the concerning appeal denial of an as of appellee’s prayer for merits relief hardly ripe obligatory were until . ..” 95 1209-10. had in fact denied been review They ques- Appeals. Court of must thus be read Huffman justice requiring holding plaintiffs tion the need or them federal who they actually involuntary make what believe futile to be are State defend reargument ants, motions the constitu- who have constitutional de actions, arising tional claims such a denial raised. Even fense out of State cannot timely reargument prior motion would resort to a federal forum to seek raising point” ing be a “new of which the a State resolution of the merits parties could not be assured considera- their constitutional claim. It is there challenge any properly tion.15 apparent But raised fore Huffman Judiciary Anonymous cases, Law an supra, 90—short ex- § not are distin press guishable Appeals merely refusal the Court of because no support ap- longer pending reach issue16 —would State courts peal Supreme to the Court under these cases. 1257(2), C. even if claims were might thought It this reason explicitly rejected by Ap- the Court of inapplicable here, to the situation peals. Gressman, Stern R. & E. goes where the constitutional claim Practice, Sec. 3.4 at 85 adequacy very procedures to which (4th ed. we argu would otherwise defer. The ment is not support without factual arguments plaintiffs’ While Anonymous cases,17 but Huffman attraction, persuaded I am not without rejected must concluding, here. In so analysis other that close Huffman I Berryhill, consider Gibson v. in each abstention authorities mandates *15 93 S.Ct. (1973), 36 L.Ed.2d 488 appellee Huffman, of In these cases. Education, Lombard v. Board of Pursue, Ltd., a a defendant in State was (2 F.2d 1974), denied, cert. brought proceeding, under nuisance 43 L.Ed.2d 95 S.Ct. public the nuisance statute the Ohio (1975), inapposite. to be county prosecuting attorney, sheriff appellants Huffman, al., process et for the dis Gibson involved a due claim of play allegedly of obscene films. Pursue bias in an tribunal. administrative lost at the level to trial court and failed Court held that resort to the federal electing appeal, proceed during pendency instead as a courts the of the ad- plaintiff proceedings in federal un pre- the district court ministrative was not 1983, attacking by Younger, der competency 42 U.S.C. the con cluded where the § stitutionality predicate of nuisance statute on the tribunal the was grounds. reversing (due process) First Amendment In constitutional issue in- three-judge noted, Younger the district court’s decision volved. As the Court ab- days 17. The claim 15. the court’s decision. constitutional in Within 90 Huffman text, supra. 500.9(h) Anony- outlined in the New York In both the Rules the Rule cases, Appeals. mous the constitutional claim Court permits the whether Fifth the Amendment Jersey, Garrity v. New 16. See attorney’s grand jury use of an immunized 495-96, L.Ed.2d 562 87 S.Ct. testimony proceed- as a for basis ings. merits, on the became decision “presupposes opportunity stention the brought appeal, after his Lombard final timely raise have decided courts, in action his federal competent § state is tribunal the federal raising procedural the first time sues involved.” 411 at process however, issues not dissimilar to those Subsequently, at strongly suggested raised here. the Court re that the primarily upon sult in Gibson turned situation is thus distin- Lombard’s proceedings fact that the were adminis in- guishable in in trative nature. See v. Pur Huffman Lom- only in sense that cases stant sue, Ltd., supra, 1203; Anony 95 S.Ct. at involuntary de- State was not bard mous v. Association the Bar voluntary plaintiff who fendant but City York, supra, New at preserve his election his own made n. 3. 432-33 But forum. federal claims federal proceedings above, Here as read State I as indicated Huffman courts, they crucial; Huffman, were in un- having are this distinction made deniably judicial nature, proceeding, Erdmann v. in a State a defendant Stevens, supra, 1208-09, “preserve” fed- only way 458 F.2d at Pursue could important feature of the exhaustion re- the State to raise claim was eral quirement. noted, Court, In cit- mere “the As the dissent forum. filing Huffman Clause, Supremacy rejected any against potential complaint of a suggestion judicial proceedings litigant him exhaust forces § judges Pursue, “state will not be faithful to remedies.” state Huffman responsibilities.” (Brennan, constitutional Ltd., supra, 95 S.Ct. at 1215 1211; Anonymous id., dissenting); see J., Association at 1211 see City Bar York, Moreover, Lombard did not deal n. 21. of supra, itself, Younger 515 F.2d at 435. This conclusion issue with the abstention has even question more force only when the claim but broader here, Gibson, unlike is not one of actual not failure whether or Lombard’s judiciary bias in the proceed- State claims raise the constitutional ings, procedural raising precluded but one of inadequacy. his them forum why We no competent judges grounds see reason State court forum on of waiv- federal pass er, estoppel, judicata.18 on the constitu- collateral or res tionality procedures, of their own includ- concluding ought abstain we ing a claimed obligatory unfair denial in these I am cases not unmindful that review. expeditious it would be more for all con- Lombard, supra, pre-Huffman another court, if cerned now well familiar- case, applied principle that 42 U.S.C. raised, ized with the issues to rule were provides sup remedy a “federal claims, on the merits from which remedy, plementary to the state and the a direct *16 sought latter need not be first refus lie, 1253, MTM, would 28 U.S.C. Inc. v. § invoked,” ed before the federal cit one is Baxley, 1278, 1281, 420 U.S. Pape, Monroe v. (1975), 43 L.Ed.2d rather than rele- (1961). gate plaintiffs L.Ed.2d to State remedies which Lombard, probationary a dismissed longer em may expedience no exist. But can- ployee, had elected first the instance principle that, not overcome the for bring 78, CPLR, proceeding policy Article unique sound reasons tied to the courts, seeking in peculiarly reinstate State-oriented function Following ment as a attorney disciplinary teacher. proceedings adverse serve, Indeed, pointed out, relitigate as the court Lombard he could not them in the federal thing preferred 636-37, did citing if lie a federal forum. 502 F.2d at Thistle litigate City claims, York, forum to his federal had thwaite v. for New lost, (2 he raised them in the State courts and injunction requested un- assured and are Stevens, supra, 458 F.2d Erdmann v. any party der that Anonymous 28 U.S.C. 1210; § v. Association of Supreme or- to the from an York, supra, City New Bar court of three der thereon a “district must be federal courts F.2d at judges.” possible A ab- alternative is interject extraordinarily reluctant ques- stention. the constitutional proceedings. Since into such themselves importance tion is of to be re- although agreeing sufficient Therefore, that highest court, superficially solved our plaintiffs’ are with- constitutional claims it would seem to make little difference merit, for out I these cases call believe might what the outcome this court be. Younger application of the abstention However, any approach nonchalant such should be dismissed on that rule and quickly foreclosed admoni- recent ground. Supreme tions of the Court itself. judg- to enter The Clerk is directed MTM, Baxley, dismissing complaints. In Inc. v. ment Since (1975), 43 L.Ed.2d 636 procedural serious and substantive issues Supreme qualifica agree Court considered the presented, unanimously are we appealability three-judge tions stays previously from a that the entered will be court which had disposition been convened in a pending appeals. fed continued enjoin eral court action to enforcement ordered. So injunction of a State court and to de clare an Alabama nuisance statute uncon MOORE, Judge (concurring). Circuit stitutional. pendency view the agree complaints I herein action, three-judge the State court dismissed, should be I would dismiss but Younger applying court the test of on the merits and hold that York’s Harris, L.Ed. procedures disciplining (1971), 2d 669 federal concluded that are constitutional for the reasons stated improper. court intervention would be Judge opinion. Neaher’s pendency Because of the of the State presented The issues for court review court cases and because of the failure path clear but towards their reso- required by show the circumstances by procedural lution be beset road Younger exception to afford an to its However, blocks. where the destination rule, three-judge court dismissed apparent, to be reached is so courts complaint prejudice without to the State sufficiently should be flexible not to be proceedings gave opinion but “no by procedural thwarted technicalities. MTM, to the merits of these cases.” previously stated, As the case came be- Baxley, Corpora Inc. v. sub nom. General Judge single fore Judge. Weinstein aas Sweeton, F.Supp. tion v. He could plaintiffs’ have held that com- plaints presented ripe appellant brought no directly issue for fed- the case adjudication eral intervention or to the and dis- Court under 28 U.S.C. complaints, missed the argued Younger have 1253 and § would did not preclude been appealable appeals opinion per court of relief. In its curiam or have held that a question constitutional issue Court focused on the cognizable by the federal whether courts existed direct review under 1253 was requiring appointment applicable of. three-judge a three- “in the absence of judge Finding court. resting latter court decision issue on resolution of the present, sought he ap- and obtained complaint.” constitutional merits pointment of recognized such a court. The Court that: *17 court, As that we have conflicting been afforded “The this decisions lengthy the benefit of briefs and heard question Court on the of whether § argument oral by able jurisdiction counsel. In the attaches where a present posture litigation three-judge we have federal court to fails reach privilege granting denying the merits of a constitutional claim proceeding in federal inter- in a which provide a con- do not injunctive relief permitted. (Cit- vention not be question.” to this sistent answer cases) (420 pre 95 S.Ct. should obstacles Procedural p. being decided, L.Ed.2d if at from issue the real vent possible. is whether That issue previous week decided the had The Court of the Justices authorization York’s Pursue, 18, 1975) (March Huffman respective to act Divisions its Ltd., 1200, L.Ed. disciplinary over the con bodies as the at had considered it 2d 482 wherein attorneys is unconstitutional of its duct ju- length federal seriousness of “[t]he prescribed procedures with because civil func- with state dicial interference attorneys from respect different to .”, more id. at tions . . litigants, namely, to all other that of suggested in such circum- that than Judge length by at the features described courts “should abide federal stances stage At in his dissent. this Weinstein Id. of restraint.” standards expenditure of it judicial energy seem a needless would to dissolve this court complicated dilemma is further Our (as MTM) remand to the District such issue of wheth- statements as “[t]he fresh order en Court “so that a to inter- er federal courts should be able timely appeal prosecuted to tered ongoing proceedings is fere with state Appeals.” (MTM, the Court quite separate the issue distinct and from only 1281.) at courts would be met Such litigants to sub- of whether are entitled arguments plaintiffs by the same sequent dis- federal review of state court present adequately here. positions questions.” at of federal Id. plaintiffs could be told remand the On they specifically claim the to failed The final decision in was to Huffman unconstitutionality of the Ju- State’s remand for consideration District ap- procedure in their diciary Law 90§ “irrepar- Court to consider whether the appeal plications the New to to for leave injury” exception Younger able could they Appeals had and that York Court of give juris- be shown so as to that court op- thereby deprived themselves diction. portunity and the to reach that Su- court preme the court thereafter. Or again MTM, Turning Baxley, Inc. v. might might hope they express we are told that “a direct will procedure some to discover be. able Supreme tolie this Court un- [the Court] again ultimately to reach start over only der or- 1253 . . where such day why in a Court. But upon der rests resolution of the merits of judicial is so when conservation effort presented the constitutional claim below.” away shy important courts should the {MTM, 1281.) deciding them. the issue now before Despite that federal intervention analyze fact the effect endeavor to disciplinary procedures us, in a State’s cases before these decisions respect in- would seem three-judge would seem put this appropriate, the talismanic position, words order the anomalous Younger injury” may “irreparable having parties appeal, enable the justify a consideration sufficient pass upon the merits of the constitution- on its own merits. case ality statute York’s of New

201 Summary of Memorandum Disciplinary 202 Procedure I. New York 202 II. Facts 202 Mildner 203 Levin 204 Gerzof 204 III. Jurisdiction Immune from Suit Are Not 204 A. Defendants Barred Are Not 205 B. Plaintiffs’ Actions Proceedings Disruption 206 C. There is No . Subject Attorneys Supervision D. State Court 207 States Constitution United 210 Due Process IV. Right 210 Generally' A. The Hearing 212 Meaningful by Trier of Fact B. Hearing by Right 212 1. Trier of Fact Evaluating Credibility 212 a. of Witnesses ' Right Argue 213 to Trier b. e. of Reasons for Decision 215 Statement Original 215

Court of Jurisdiction Administrative Determination Appellate Review to Meet Due Process Trial Failure Standard Appellate

C. Review Requirement

1. Due Process 2. Failure to Give Due Process at Trial Level Equal Protection

V. Right Appeal

A. New'York

B. Nature of Review Attorneys C. Lack of Basis Denial to VI. Alternatives New York Practice Retroactivity

VII.

VIII. Conclusion

Appendix Judiciary A. New York Law 90 Right Appendix B. New York Review WEINSTEIN, (dissent- Judge guaranteed by District the Fourteenth tection ing). Amendment of the States Consti- United inconsistency tution. There is no be- regard my high Despite lawyers for New tween fair treatment high maintaining long York’s tradition tradition of maintenance reluctantly bar, discipline by I ethical standards of its the courts. There is disciplinary procedure good why legal conclude that its no reason members denying constitutionally profession, infirm in at- who have done so much torneys equal pro- process protect rights the due of oth- the constitutional *19 in apparently in a case justice constitutions or ers, deprived should with dis- Appellate hearings Division Justice which an process appeals— Constitution, Ar- York profession- sents. New rights other available to all seq., et 3; et courts, ticle CPLR by New York § als. As construed ordinary case, at- Thus, seq. in the statutory disciplinary procedure, Ju- torney professional miscon- convicted diciary invalid. Law by Appellate Division cannot duct questions any appellate I. NEW YORK DISCIPLINARY review of secure Flannery, 212 PROCEDURE Matter or fact. of law 106 N.E. N.Y. procedure disciplining The attor- neys fairly throughout uniform II. FACTS provision statutory state. The itself is involving cases, an attor- Three each Appendix opinion. set out as A to this Appellate disciplined Division ney Appellate Supreme The Division right de- appeal denied the department Court each receives com- cision, consolidated have been plaints against individual proceeding. Departmental Bar Associations or the Inquiry Conduct, Judicial on Professional MILDNER body appointed Ap- staffed Plaintiff Herbert Mildner been had pellate Division. practicing years when for some thirteen warranting action, In cases Appel- long friend, Evans, Roberta his time al- charges late Division refers the to a ref- leged wrongfully that he converted had Department eree. In the Second the ref- personal her funds for his use. The Sec- eree is a Justice of the State Department Inquiry Pro- ond Judicial on Court; departments in other the referee investiga- fessional Conduct conducted attorney. be an reports He hears the matter proceedings Disciplinary tion. then were his determinations on the Appellate Di- commenced facts, findings, but he no makes for he appointed vision Albert Justice power has no to decide. In New York McGrove'r, Supreme Court, as a terminology, he is a referee to “hear and report. referee to hear and report,” not to “hear and determine.” parties The then make motions before resulting hearings, After extensive Division to affirm or dis- pages, in a more than record of Jus- affirm findings. They, referee’s ac- prepared re- tice McGrover a detailed cording testimony us, before submit port charges concluding forth that the set briefs, but the Division does proceeding petition not take new argu- evidence or hear oral had not been sustained. referee ment. practice, The usual so far as this based his conclusion his evaluation shows, record is to rule—whether in con- credibility of the two main witnesses formity with, opposition to, the ref- testimony he had and heard. Their seen findings eree’s giving any —without rea- conflict. He credited substantial sons for decision. may vary Punishment lawyer’s oc- of what version had from censure to total disbarment with solely record, the on the curred. Based right concomitant loss of prac- rejected Appellate Division the referee’s tice law. report stating any reasons without opin- per Following In a curiam suspension its disaffirmation. or disbarment opinion, simply Division, ion “In our wrote: order from at- contrary report, torneys disciplinary proceed- to the [the] involved in charges proof.” ings fully sustained are afforded an Mildner, only In Re 43 A.D.2d Appeals Court (2d Dept. 13, 14 respect the N.Y.S.2d law which to issues respondent’s “[Considering directly evident Appeals finds involve id., contrition,” lack of candor and state or federal the construction of the prac- de- suspended plaintiff from the to a boat—were false and submitted liberately inquiry. years. to obstruct .the for three tice of law *20 stay Having De- of the order of On October obtained a Second partment appointed applied suspension, Morton B. Silber- Mr. Mildner man, of for Justice the New York Su- reargument Division Court, preme appeal permission York as a referee to hear and re- New for port charges. Appeals. de- to it on That motion was these Justice Sil- of Court hearings, days opinion. conducted ten berman nied without pages embodied in over 1000 of tran- sought ap plaintiff then leave to The during script, which he heard eleven wit- Appeals. peal the New York Court of to application arguments The nesses and of counsel. appeal was for leave to The findings report completely written his grounds: (1) upon that the three based charges. exonerated Levin all Justice proc deprived plaintiff had been Silberman*concluded, on the basis of a suspension had ess in that the order of “thorough evidence”, analysis that of the testimony of on the recanted been based charges “supported little were witness; (2) perjured that an admitted conjecture Re- more than port and surmise.” in re Division had erred Findings Morton Justice referee; versing findings of its Silberman, Levin, In the Matter charges (3) a matter of law that as (August 31, against plaintiff not been estab had Appellate Division, ignoring denied The a re- motion was also This lished. Mildner, argument, quest opinion. N.Y. Levin for oral en- In Re without affirming summary decision, N.E.2d tered a Jus- 2d 357 N.Y.S.2d respects report tice Silberman’s except all portion as to that of the false LEVIN charge involving the doc- document boat Plaintiff Milton Levin had an un- portion, to that As the Second ument. blemished record since his admission to Department in one conclu- disaffirmed ago. forty years the New York bar over sory sentence: Disciplinary proceedings, formally insti- contrary opinion, “In our re- tuted in stemmed a 1970 Sec- port, charge, the first insofar as it re- Department inquiry ond conducted lates to a dated document March (Froessel Hon. in- Charles Froessel W. involving the transfer of a Chris quiry), into former the activities of boat, evi- Craft sustained Supreme Court Justice Michael M. dence.” During inquiry, D’Auria. the Froessel Levin, In Re 45 A.D.2d investigators Levin had discussed with (2d Dept. 1974). N.Y.S.2d On certain transactions between D’Auria disaffirmance, partial basis partner, his real estate ber, Maurice Gru- Appellate Division ordered that Levin documents, produced had various suspended from the of law given testimony inquiry. had before the years. for three charged petition that falsely credibility Levin had testified he Levin when stat- believed that the $30,000 parties ed bonds transferred to and witnesses had been crit- alleging charges against loan, ical to D’Auria 1967was a a resolution of the reality legal fact, part payment him. vorably In was in of a Referee Silberman had fa- demeanor, fee to D’Auria rendered in connection noted Levin’s and the zoning Plainview, inconsistency application testimony with a in the respect pro- Report New York. to Levin’s investigators. With Find- Froessel documents, petition charg- Silberman, ings duction of Morton of Justice admittedly ed four back-dated docu- Dur- 60-61. the Matter Levin at ing deed, acknowledgment hearing ments—a he had also censured the blank note, relating prosecution’s it, promissory suppress- and one chief witness vision, appeal from the attempting justi- and leave to document and Appeals. Transcript fy Levin, 35 N.Y.2d In Re his action. Proceedings N.Y.S.2d 321 N.E.2d 555 before Justice Silberman 18, 1973). (January at 1051 Following the ac- commencement of seeking injunctive tions this court de- Levin then moved claratory relief, ap Division Appeals permission to Court of stayed plaintiffs’ commencement of peal suspension sus- stay or and for a pensions permit this court to consider pending der motion. determination of his these eases. Levin also claimed he entitled to that was as of on the constitution *21 III. JURISDICTION by questions al raised his case. The Appeals denied, opin Court of ion, without A. Defendants are not Immune from permission ap Levin’s motion for Under Suit 42 U.S.C. 1983. § peal. 643, 1026, 35 N.Y.2d 362 N.Y.S.2d injunctive Plaintiffs seek relief grant 321 N.E.2d Nor 555 did it against the commission of in viola- any appeal right. acts Levin as of rights judges tion of their civil state GERZOF acting capacity. in their De- official suspended Plaintiff Julius Gerzof was argue they subject fendants are not period from the for a law jurisdiction of this court because years Ap three the 1974 order the Appellate “person” Division is not a pellate Division, Department. Second meaning 1983, within the of 42 U.S.C. § charges against him also related to citing Appellate Division, Zuckerman v. investigation the Froessel of Justice (2d F.2d 421 625 Cir. charged D’Auria. Gerzof was liciting so with First, expressly advising Zuckerman has been two other by subsequent restricted legal zoning ap to reduce decisions fee on a Appellate plication cases which the Division so as to make available a sum body. Where, here, sued as money improperly to be used to assure granting Appellate Justices and Clerk of application. Di He was charged individuals, vision falsely are sued denying also Zucker act this apply man does not the federal court while witness under oath at the Froes jurisdiction inquiry. over sel the defendants. Justice Morton Silberman Stevens, designated 1205, Erdmann v. 458 F.2d was 1208 act as referee (2d Cir.), denied, against 889, cert. proceeding 409 U.S. 93 Gerzof. In a 1973 126, report, (1972) (and S.Ct. 34 L.Ed.2d charges the referee found 147 Lumbard, see concurring, Gerz, J. substantiated 458 F.2d at the evidence. 1214, 5); n. application Rights Law Civil reopen hearing made Students Research purposes taking Wadmond, Council for v. additional, newly F. 299 Supp. 117, discovered, testimony. (S.D.N.Y.1969) (three 123-24 This motion was judge court), grounds, 401 denied on other Division which aff’d 154, 720, thereafter affirmed L.Ed.2d Referee Silberman’s report explanation. without In the Mat Gerzof, ter 450, 45 A.D.2d 359 N.Y.S. Second, despite immunity whatever (2d Dept. 1974). 2d 76 judges may state have from suits for money damages, Ray, the evidence claimed that see Pierson Gerzof v. 547, factually legally to sus- insufficient 18 L.Ed.2d 288 (1967), charges against immunity they enjoy him and tain the no such permeated suits, brought here, testimony with sub- from had been such as those injunctive unsuccess- stantive inconsistencies. He under Section 1983. relief sought fully appeal Stevens, F.Supp. to the In Javits v. as of (S.D.N.Y.1974), Appeals, Court of leave Section 1983 suit was brought against Appeals Di- Court of Justices and Clerk being admis Judge denied After state court. Mac- Appellate Division. for failure York bar he to the New sion when up matter summed Mahon requirements, Mr. the residence to meet noted: Tang action commenced state judg- least, circuit, state “[I]n constitutionality challenging in- from suits immune es are n. requirements. and 141 Id. at 140-41 since under junctive relief decided Division 2. When injunctive de- only plaintiffs seek Tang against started a Section him Mr. reject relief, defendants’ claratory we court, raising action in the federal argument.” immunity posed in his un he had the same issues v. g., also, Littleton e. Id. at 136. See Tang least successful state action. —at (7th 389, 395-409 Berbling, majority’s opinion on the —rested sub grounds, 1972), other rev’d state court de familiar doctrine thaUa Littleton, 414 U.S. nom. O’Shea question volun a constitutional cision on vacated, L.Ed.2d tarily conclusive submitted is between Littleton, 94 S. Spomer parties by appeal. modified until (1974); Wallace L.Ed.2d 694 Ct. Fidelity Co., Trust Rooker v. (E. F.Supp. McDonald, 369 L.Ed. Civil 1973); Law Students D.N.Y. England v. Louisiana Board *22 Wadmond, v. Rights Council Research Examiners, 411, Medical 417- 375 U.S. 1969) (S.D.N.Y. 117, F.Supp. 123 299 419, 466, 461, 84 S.Ct. 11 L.Ed.2d 440 other on (three judge court), aff’d 1228, Crane, Bricker v. 468 F.2d 720, 27 154, 91 grounds, S.Ct. 401 U.S. (1st 1972), denied, 410 1231 Cir. cert. (1971). L.Ed.2d 749 930, 1368, U.S. 93 L.Ed.2d 592 S.Ct. 35 (1973). Are Not Barred Plaintiffs’ Actions B. remedy The federal under 1983 Section Judicata, Principles by Col- of Res supplementary remedy, “is to the state Comity. Estoppel, or lateral Waiver sought and the latter need not be first attacking Plaintiffs, in the constitu- refused before the federal one tionality dis- of the New 167, Pape, invoked.” v. Monroe 365 U.S. pre- statute, ciplinary not raise issues 183, 473, 482, 81 S.Ct. 5 L.Ed.2d 492 viously the state courts. determined (1961). also McNeese Board v. of argue plaintiffs Defendants that Education, 668, 671-672, 83 relitigate seeking ques- constitutional 1433, 1435-36, S.Ct. 10 L.Ed.2d 622 before the state court or tions that were (1963). Note, Res Judicata: Ex Cf. might It have raised. is clear that been clusive Federal Jurisdiction & The Ef record that the constitutional fect of Prior State Court Determina questions not us were raised be- before tions, 53 Va.L.Rev. 1360 Ex referees or the Di- fore the required haustion is not in Section 1983 any Motions vision of these cases. Wilwording Swenson, cases. See v. 404 to the Court made leave U.S. 30 L.Ed. challenge Appeals did not statute’s (1971) (per 2d curiam); Sugar 418 constitutionality. Co., F.Supp. Curtis Circulation 377 principles judicata, The res collater (S.D.N.Y.1974). 1059 Nor is a estoppel, special al or some form of bar that, raised the fact theoretical comity by majority ly, adverted to questions the constitutional these Tang panel Appellate Division, 487 plaintiffs present “might now have (2d 1973), denied, Cir. litigated cert. proceed been” the state ings. U.S. S.Ct. 40 L.Ed.2d 111 Lombard v. Board Education (1974), application. Tang have no City In York, New (2d 502 F.2d sought plaintiff-attorney a federal 1974), denied, cert. precisely ques determination of the same L.Ed.2d As previously tions that were decided the court stated in Lombard: remedy disciplinary judicata deci- apply review state “To res to a sought is on sion for its fairness. Their attack first ‘need not be which constitutionality court, of the state statu- which refused’ in the state tory procedure disciplining at- state sought be to actually would torneys. this None of them has asked overrule the essence Monroe any judicial federal court to con- Pape Wilson, review and Lane v. rulings duct the state L.Ed. against proceedings him, such as evi- (1939).” dentiary rulings rulings questions Id. at also 635. See Newman v. Board of they challenged Nor law. have City Education Dist. School tradition court control the bar. Cir.), (2d York, 508 F.2d 277 cert. they Rather, requested have that 1447, denied, statutory procedure declared uncon- L.Ed.2d 762 attorneys’ stitutional. individual case, a dismissed the Lombard do, however, cases illustrate unconsti- prosecuted unsuccessfully two teacher produced which tutional results proceedings in the state Article 78 application the statute. during courts, specifical- he never ly issue. raised constitutional Disruption of C. There is No Thereafter, he instituted a Section Proceedings. action, claiming he had denied been suggest The defendants also procedural process in his dismissal jurisdiction court lacks interfere argued teacher. The defendants proceedings state court and orders. The Mr. claims Lombard’s constitutional defendants, however, distinguish fail to he were barred because “should have procedural between posture of this proceedings”. raised them state [the] case and those in which the abstention 502 F.2d at 635. The Circuit Second *23 doctrine applied. has been disagreed expressly suggesting that no — Thus, Anonymous in waiver, preclusion, doctrine v. Association or claim Bar, 1975), (2d applied procedural 515 F.2d Cir. should be to issues of 427 Anonymous process Association, and in arising J. v. Bar under Section 1983. (2d here, 1975), 502 F.2d at 635-37. 435 Cir. 515 F.2d unlike sought plaintiff attorneys enjoin to Hence, argu- to follow the defendants’ prosecution pending disciplinary state gov- ment in this case would be flout to proceedings through Section 1983 ac erning case law and to emasculate the rejected tions. The Second Circuit had remedy provided by federal Section 1983. attempt, years ago, such an several in deny It plaintiffs would also these Stevens, (2d Erdmann v. F.2d 1205 hearing in court on the substantial Cir.), denied, 889, cert. 409 U.S. questions constitutional raised: (1972) simply 34 L.Ed.2d 147 —and “Since under Section 1983 an individ- again Anonymous did cases, so preserve ual seeks to or vindicate fed- relying primarily on Erdmann. guaranteed erally rights, strong na- protecting tional interest those entirely The case before us dif- rights upon makes it incumbent Here there ferent. has been no at- erecting federal courts to avoid tempt enjoin bar- pending prosecution of to prosecution riers to of such suits proceeding. pro- state The federal tribunals.” ceedings against Mildner, Gerzof, and Baker, Plano (2d Levin, including v. appellate process, 1974), Hayes quoting Cape already prior v. had Henlo concluded been pen District, F.Supp. 823, School commencement of their federal actions. (D.Del. Ltd., Pursue, 420 U.S. Huffman plaintiffs present The (1975) before this S.Ct. L.Ed.2d 482 similarly not maneuvering inapposite. There, have this court unlike tradition, ig- justify custom does not plaintiff no here, made the Section rights noring the constitutional at- courts be- appeal in the state effort torneys. commencing The action. its federal fore that, only in such ruled Court The broad courts do have circumstances, standards the abstention power attorneys practicing over before Harris, Younger them, English prac- inherited from the (1971) must 27 L.Ed.2d jurisdic- tice followed all American federal court met before be early tions. As thirteenth cen- proceed: tury, passed Parliament several stat- concerning penalties utes rules and re- Younger hold that therefore “We lating of law. These justify fed- must met standards were to administered and enforced judicial in a state intervention eral Cohen, History the courts. H. A losing liti- proceeding as to which English Bar to 189-195 appel- gant state not exhausted his has . .” remedies. late grew, developed into As the bar supra, Ltd., Pursue, groups. the aristo- two main One was Huffman cases In the at 1211. at organized cratic, learned, barris- well plaintiffs had ex- here the consolidated argued Dur- ters the courts. who before appellate, remedies hausted state ing centur- the fourteenth and fifteenth commencing this action —lack before began organize ies the barristers is, fact, one of their review Court, various Inns of each of which complaints. chief prescribed periods of re- methods and training quired Inn for admission to the Supervision D. State of Attor- disciplined R. their own members. Subject neys Is to United States Pound, Lawyer Antiquity From The Constitution. Times, Modern 87-88 judges supervisory The defendants contend that since the retained a or review- judiciary power Inns, state over the mem- control over es- various bership bar, pecially regard of its own a federal court with disbarment. See Cannon, 386-387, interfere disci- Re 206 Wis. plinary proceedings. recently pointed (1932); Pound, supra, As 240 N.W. Stevens, F.Supp. 131, out in Javits v. 98-100. (S.D.N.Y.1974): branch, Attorneys, other were *24 “The intimate and relationship delicate the usually clerks of from the drawn long lawyers courts between and unorganized largely until court and were justified judiciary’s the careful scru- century. at 86. An nineteenth Id. the tiny integrity qualifica- of the and attorney admitted the individual was practice tions of who it.” those before jurisdiction to in he court whose was States, disciplined by practice directly also Theard v. United 354 and was 1274, 1276, Cannon, 1 100; U.S. 77 S.Ct. that court. Id. at In Re 441, 206 240 446 (1957); Wis. N.W.

L.Ed.2d 1342 Erdmann (2d 1205, (1932). Although discipline Stevens, dif- 458 F.2d 1208-09 was maintain, Cir.), 899, denied, 93 409 ficult to it it cert. U.S. S.Ct. was severe when taking 126, example, But this effected. For L.Ed.2d was the 34 147 contingent argument ground deference abne of a fee was for dis- confuses with negligence handling responsibility to enforce the barment and gation being lawyer the case resulted in the Constitution. A incursion into sent brief prison. Cohen, history disciplinary proceedings History A English 1450, (1929). Thus, explaining Bar be useful how New English supervised largely the courts the it is now. It show arrived where will self-disciplined directly practice and that while New York’s of leav barristers disciplined attorneys. discipline to the courts accords with qualified of- supervision one its is become This tradition of court attorney counsellor, ficers, and as the The first re- followed colonies. ought legislation concerning re- prac- and for what cause he corded the power, however, adopted moved. The is tice law was in 1642-43 arbitrary despotic one, Virginia. provided and to be This statute that no court, pleasure plead exercised could a case without prejudice, personal passion, Pound, from license the court. R. Lawyer hostility; duty is Antiquity From but it to Modern Times, regulate Early to exercise and it 136-137 colonial statutes, just judicial discretion, English ones, sound and like the were very whereby independence rights terms, drafted and broad often ac- complishing scrupulously guard- the bar little more than acknowl- edging court, ed and responsibility maintained courts’ for su- rights pervision dignity attorneys. Id. the court itself.” at 135-42. added.) (Emphasis Following Revolution, disciplinary proceedings only Id. at 13. were rare and occurred in extreme cases. Id. at 185. Neverthe- After the Civil War the court reaf less, during period from the Revolu- authority firmed the at courts over War, tion to the Civil some disbarment torneys necessary pro ensure the Supreme cases reached the Court. In integrity. See, g., fession’s e. Randall Burr, (9 Ex Wheat) 529, Parte 22 U.S. Brigham, Wall.) (7 523, 531, 6 (1824) L.Ed. 152 dis- Court (1868); Garland, L.Ed. 285 Ex Parte cussed power a lower court’s to disci- (4 Wall.) 333, U.S. 18 L.Ed. 366 pline lawyers: recognized It state and federal power ought disciplinary “The courts is one have autonomous au which to be thority great caution, lawyers exercised over conduct of the but is, think, g., See, we before them. e. incidental to all Courts, alo, 544, In Re necessary pres- U.S. 88 S.Ct. Ruff decorum, denied, ervation of 20 L.Ed.2d reh. the re- spectability profession.” U.S. 20 L.Ed.2d 874 (1968); States, Theard v. United dis- discretion of the The extent 1 L.Ed.2d 1342 clearly ciplining court more enun- (1957) ; Ginger City v. Circuit Court for (19 Secombe, 60 U.S. ciated in Ex Parte Wayne, (6th Cir.), 372 F.2d 621 cert. (1856) How.) 9, L.Ed. 565 where denied, unreported own its discussed Hulse, L.Ed.2d 998 Jones v. Conkling. Tillinghast decision in (8th Cir.), denied, cert. Tillinghast, had dis- a District Court 21 L.Ed.2d 167 petitioner barred (1968). Normally, the federal courts jurisdiction, it no but Court held had will state follow decisions warned the bar’s they rely since upon the state’s tho proper judicial pro- dignity roughly developed admission and disci *25 ceeding discipline imposed before plinary apparatus. Selling Radford, v. ignored. could not be 46, 50-51, 243 377, U.S. 37 S.Ct. 378- character, court of that “[I]n 379, 61 L.Ed. 585 In Re Cf. relations between the court Abrams, 521 (3d F.2d 1094 Cir. prac- and counsellors who legislatures attempted it, rights State have respective in tice and their attorneys, regulated assume direct duties, control over are the com- dictating including passage of laws mon And it law. has been well set- to the tled, by individuals’ admission bar. The practice the rules and of com- legislative struck courts, courts have down such it rests exclu- that mon-law See, Splane, g., interference. e. In Re sively who the court to determine

209 Although York of New (1889) (statute 527, 16 A. 481 123 Pa. delegate properly the enforcement attorney in one requiring admitted judiciary, discipline in all courts deemed admitted court be guaran- sidestep constitutional not beyond power invalidated stated in tees. As compel to ad- legislature the courts Avery, 483, 11, 490 n. Johnson 393 U.S. re attorney); In Can- anyone as an mit 747, 11, n. 21 L.Ed.2d (1932) 751 718 374, 89 S.Ct. non, 441 240 N.W. Wis. 206 (1969): ordering (statute law- to reinstate previously suspended held yer it had power of the to control the “The States infringement inher- on the as an invalid cannot be exercised so of law court). powers of the abrogate federally ent protected rights." in courts The assertiveness also, Secombe, Ex Parte (19 See 60 U.S. growth of with the combined area In 13, How.) 9, L.Ed. 565 15 profession- interested bar associations (7th 361, Fisher, 369 Re 179 development of more led to the al ethics sub Kerner nom. cert. denied 1950), discipline. procedures formalized 825, 59, L. Fisher, 95 71 S.Ct. U.S. pub- Bar Association American 1970 the (“The must (1950) courts Ed. major study of state lished supervisory an control exercise Association, procedures. American Bar legal manner, arbitrary show but must in Dis- and Recommendations Problems thereof.”); exercise discretion (1970) ciplinary (Clark Re- Enforcement 1398, Stewart, F.Supp. Staud urged only port) report . The Clark Mackay, 416 P.2d In Re (E.D.Pa.1973); regulate admission and dis- courts should denied, 1965), cert. 384 U.S. (Alaska any legislative inter- barment 1907, 16 L.Ed.2d 1003, 86 S.Ct. invasion was an unconstitutional ference Klein, Spevack v. also (1966) . prerogatives of a coordinate 625, L.Ed.2d 574 government. Id. 10-18. branch of court: from state (on (1967) certiorari Judiciary 90 of the Section New York solely predicated discipline not be could legal traditions, Law is tune with these lawyer’s of his Fifth exercise specifically pro- for it states that such testify refuse to Amendment ceedings province are the of the courts. disciplinary hear produce at a records The statute has been construed as a re- Ex Bar Board ing). Schware v. Cf. affirmation and restatement of inherent aminers, 1 L. judicial power. Thus, Anonymous, In Re (unconstitutional de (1957) Ed.2d 796 21 A.D.2d 248 N.Y.S.2d Konigsberg v. State admission); nial of (1st 1964), Dept. suspend an action to California, Bar of grounds attorney on deficiency, mental denied, reh. L.Ed.2d noted: 1 L.Ed.2d ‘declaratory juris- “The of a statute implied.’ diction that would have been codify- statute, Hence opinion by The sense of the Chief attorneys, discipline judicial power to Judge the Karlin ease Cardozo Plaintiffs from attack. is not immune [People Culkin, ex rel. Karlin v. the defendants case have sued instant (1928)] N.Y. 162 N.E. 487 is that charged with ad- officers as the state very the Court has broad inherent challenged ministering enforcing the

powers supervision and that seeking injunction statute; they expressive statute is not restrictive but restraining from enforc- defendants power.” (citations omitted.) of that *26 precisely This that statute. sought against Hulse, See also the same defendants Jones v. relief 391 198 in Law denied, (8th Cir.), respect cert. 889, to the state statute with 393 U.S. 89 Rights v. Council 206, Civil Research Students S.Ct. 21 L.Ed.2d 167 (1968). 210 (S.D.N.Y. 471, 2600, F.Supp. 481, 2593, Wadmond, U.S. 92 299 117 S.Ct. 33 court), (revocation (three-judge (1972) pa 1969) on other L.Ed.2d 484 aff’d role) ; 720, Burson, 535, 154, L. Bell grounds, 27 v. 402 91 U.S. 91 401 U.S. S.Ct. 1586, (1971) (sus S.Ct. 29 L.Ed.2d (1971). 90 There the court Ed.2d 749 pension license); Goldberg judges driver’s v. Division found that Kelly, 1011, 254, enforcing un- 397 90 L. enjoined U.S. S.Ct. 25 from could be (1970) dealing (termination Ed.2d 287 of relief state statute constitutional payment); including citizen, Willner v. Any disci- Committee the bar. Fitness, 96, 102, allegedly deprived Character 373 attorney, U.S.

plined iswho Constitution, 1175, 1179-1180, rights 83 protected S.Ct. 10 224 L.Ed.2d (1963) (exclusion bar) ; As Joint Anti- court. in a federal can seek review McGrath, 123, Fascist Students, v. supra, Comm. 341 in Law U.S. stated the court 624, (1951) (listing 71 S.Ct. L.Ed. 95 817 F.Supp. at 123: organizations). “subversive” we Here perceive “We fail what interest protections must determine which re are by holding served would be federal quired suspension when the or disbar powerless enjoin courts to state ment of an is at stake acting officers from under statute procedural whether protections limited allegedly deprives that citizens permitted are because of the nature rights protected by Rights the Civil lawyer’s relationship to the court. regulations promulgating Act or that such, alleged process simply Because pro- to have due that result calls for protections because cedural particular some of them are robed and as sit- appointed demands, others have uation been those who are.” procedures “consideration of what process Disciplinary proceedings par- require giv- under ticularly susceptible en set of begin abuse because circumstances must summary Lyman, with a precise character. determination na- Discipline government Bar & ture Lawyer, The Activist function in- Harv.Civ.Rights volved as private well as of inter- —Civ.Lib.L.Rev. (1973). “Only by providing est govern- has been affected by social enforcement mental action.” mechanism must strictly function within [Constitutional] & Workers Restaurant Union Cafeteria hope bounds can we to maintain an order- 895, McElroy, 886, U.S. S.Ct. society ed just.” is also Boddie v. 1743, 1230, 1748-49, 6 de- L.Ed.2d reh. Connecticut, 371, 375, 401 U.S. nied, S.Ct. 7 L.Ed. 28 L.Ed.2d 113 2d 70 suspension A determination of or dis IV. DUE PROCESS barment, capable destroying an attor Right A. ney’s Generally reputation livelihood, be a can devastating sanction. For this reason When an individual is faced with a Court has characterized dis prosecution, criminal strict adherence proceedings being barment “of a panoply full process protec- of due quasi-criminal Ruffalo, nature”. guaranteed. Re tions is U.S.Const.Amends. U.S. V, 88 S.Ct. situations, XIV. In other import- L.Ed.2d denied, reh. ance of the as well the need of 20 L.Ed.2d summary state for procedures As the Second Circuit carry stated particular Erdmann public policies out have Stevens, (2d 458 F.2d 1209-10 determining been balanced pro- Cir.), denied, cert. protections cedural apply. See, must 126, 34 g., (1972): L.Ed.2d e. Goss v. Lopez, 419 729, 42 (1975) L.Ed.2d (suspension “[I]n our view a court’s disciplinary students); Morrissey proceeding against Brewer, a member its bar

211 773, 2016, 2004, 421 95 L. U.S. 44 S.Ct. than rather comparable a criminal to (1975). 572 Ed.2d proceeding. . can- . . [I]t a civil for most disputed proper- that If the is unfit and does not not be bar represents ly rights protect law public, to of the license a livelihood, judicial system may brought of be loss which entire be in- monetary disrepute:' a greater punishment than to Fisher, Bradley v. 80 U.S. fine. See enough the doors of the “It is not 355, 335, L.Ed. 646 20 Wall.] [13 open; justice temple it is essen- Klein, Spevack v. U.S. (1872); 385 approach kept ways be tial that 625, L.Ed.2d 574 511, 516, 17 clean.” Furthermore, (1967). King, 162, 168, 22 184 U.S. Hatfield attorney, against an while measures 479, 477, See L.Ed. 481 S.Ct. only in posing of incarceration a threat Fletcher, also, U.S.App.D.C. Booth v. contempt, anoth- threaten cases denied, (1938), cert. 351, 101 F.2d 676 profes- punishment er serious —loss 835, 628, L.Ed. 307 U.S. S.Ct. stigma reputation. such The sional lawyer in com- his harm the a loss can noted, But, already ob- York’s New as munity relations in his client discipline provide ligation effective to ability adversely to affect his well significant weighed against must be professional functions carry out his rights process Due stake. individual at supplied.) (Emphasis .” . . . legal procedures requires used one, plaintiffs, including the denies No appropriate proceedings to case orderly interest the state has an parties As just affected. procedures adjudicating attorney dis Goldberg commented: Justice ciplinary proceedings. re It has a “Certainly lawyers should and courts “ sponsibility ‘to determine the fitness of, particularly and have sensitive in that officer of continue obligation special respect, capacity protect the courts and process.” of due demands public from official ministration ” persons practice.’ Re unfit on Character Fit- v. Committee & Willner Ming, 1972) (7th 1352, 1353 469 F.2d Cir. 1175, ness, 96, 106, U.S. S.Ct. (citations omitted). also, Baird v. 1182, (1963) (discussing 10 L.Ed.2d 224 Arizona, 7, State Bar 1, 401 U.S. procedures in the bar admission State 702, 706, (1971); S.Ct. 27 L.Ed.2d 639 York). seeks “[W]hen State Theard v. United States, 354 278, lawyer, proceed . . . disbar it must S.Ct. L.Ed.2d 1342 exacting according most demands Wall, Ex Parte process of law.” Law Students of due legal 27 L.Ed. 552 Council, Rights Inc. Civil Research profession public is “imbued with trust.” Wadmond, 174, 91 S.Ct. Echeles, In Re (7th 430 F.2d (Black (1971) L.Ed.2d 749 hardly need We to be reminded dissenting). Douglas, JJ., “[I]ts surrounding Watergate the events , not be disci- should members. . . tragedy that much of the effectiveness „ unques- full and plined . without democratic, our system constitutional protection process of law and tioned government depends upon the honor and rights.” Id. their constitutional of all integrity of members of the bar. Par at ticularly relationship of the courts Writing in a case where bar, to the “the interest of the States par- heinous crime accused regulating lawyers especially great lynching ticipating in front of in a lawyers since primary are essential Parte in Ex courthouse, governmental Field Justice administering function of Wall, justice.” Virginia Bar, Goldfarb *28 212 1833, (1967); (dissenting), (1883) 20 L.Ed.2d re- 874 Kivitz L.Ed. 552 v. 27 SEC, U.S.App.D.C. 372, 154 475 F.2d

minded us: (1973); Angeles County 956 In Re Los in1 power disbar “The Society, (9th Pioneer 217 F.2d 190 Cir. proper not to be ex ... is cases 1954). granted hearing The “must be arbitrarily tyrannically. or ercised meaningful . in. a manner.” Arm arbitrary pow our institutions Under strong Manzo, 545, 552, v. 380 U.S. pursuits is not lawful er another’s over 1187, 1191, (1965). S.Ct. 14 L.Ed.2d 62 any man nor in tribunal. vested Evaluating Credibility exhibited, a. of Wit- and no is odious It wherever nesses appear does it more so than where judicial by a officer when exercised credibility witnesses is When practic a member of the bar towards hearing involved, meaningful should a him.” before appearance before the include their it can observe their turn to some of the trier-of-fact so that We incidents Judge process Learned Hand due attor- demeanor. As claimed to be denied MacDougall, neys by Dyer procedure v. wrote used the state 1952): 265, disciplining (2d 268-69 Cir. members of the bar. behavior, carriage, “It is true that the Meaningful Hearing Trier bearing, B. appearance manner and aof Fact short, witness—in his ‘demeanor’—is part a evidence. words Opportunity Requirement rely used are no means all that we tobe Heard making up inon our minds about the requisite due “The fundamental question truth of a arises our process opportunity to be of law is the ordinary affairs, abundantly and it is 385, Ordean, v. heard.” Grannis U.S. jury settled that a is as little confined 783, 394, 779, 58 L.Ed. They may, to them as we are. person’s Particularly when they should, indeed take into consid- good name, integrity, reputation hon- or eration the whole nexus of sense im- government or ac- is stake because of pressions they get from a wit- tion, hearing and fair in- full should again again ness. This we have very least, clude, at notice of declared, and have rested our affirm- charges complaint, or disclosure of findings judge, ance of of fact of a supporting charges, evidence and an jury, hypothesis on the. opportunity, to be heard to confront part of the evidence have See, g., and cross-examine e. witnesses. Moreover, turned the scale. such evi- Regents Roth, 564, Board v. 408 U.S. may satisfy tribunal, dence only 573, 2701, 2707, L.Ed.2d 548 testimony the witness’ (1972); Constantineau, Wisconsin v. true, not opposite but that the truth 433, 437, 510, 507, U.S. 91 S.Ct. L.Ed. story; of his for the denial Comm, (1971); 2d 515 Willner v. one, deny, who has a motive to Fitness, 96, 103, Character & 373 U.S. hesitation, be uttered with such dis- 1175, 1180, 83 S.Ct. 10 L.Ed.2d 224 comfort, arrogance defiance, toas v. McElroy, Greene give fabricating, assurance that he is 474, 496-97, 79 S.Ct. that, is, if he there is no alterna- 3 L.Ed.2d 1377 tive but to assume the truth of what he denies.” attorney disciplinary It follows that proceedings, process requires emphasizing importance rea- The cases present, opportunity a defense demeanor sonable as an aid to the determina- See, g., Ruffalo, credibility tion of the trier. e. In Re “numerous well known.” United ex 20 L.Ed.2d States rel. Mancusi, denied, Graham v. reh. 457 F.2d vantage judge who over' also, Emslie (2d upon the his conclusion must reach California, 11 Cal.3d Bar of People ex rel. record alone.” written P.2d 995-96 Cal.Rptr. Miller, MacCracken 291 N.Y. Page, Barber Cf. *29 542, (1943). 1318, 1322, 50 N.E.2d 544 725-26, L. 719, 20 88 S.Ct. California, Berger (1968); v. Ed.2d 255 not Precedents the trier did where 315, 314, 21 S.Ct. 89 393 U.S. parties the hear the witnesses absent (1969). and In criminal 508 L.Ed.2d pure and adminis consent involve civil cases, de- quasi-criminal “The one who adjudications. See, g., e. De La trative Morgan v. United must hear.” cides Rama, 154, v. De La 36 Rama 241 U.S. 906, 481, 468, States, 56 S.Ct. U.S. 298 (matri 518, (1915) 60 L.Ed. 932 S.Ct. also, 912, (1936). 1288 See 80 L.Ed. monial; parties); consent United F.Supp. Corp. Parker, v. 54 Lacomastic (2d Vater, Cir. States v. 259 667 F.2d judicial (“in (D.Md. 1944) 138, 141 1958) (condemnation; par consent distinguished pro- from administrative object); to implied failure ties right ceedings, there is an inherent Vincent, v. Insurance Co. Mutual Utica litigants to part of have a decision the (2d 129, Cir.), cert. 375 F.2d 131-32 judge presides the who at rendered denied, 839, 63, 19 L. 389 U.S. 88 S.Ct. testimony.”). the and hears the trial (1967) (N.L.R.B. decision); Ed.2d 102 Parker, Corp. F.Supp. v. Lacomastic 54 de- making factual those Reliance Co. v. & J. Charia (D.Md.1944); S. 138 of wit- demeanor on the terminations (Cust. States, 124 F.2d 248 United assessing the truthfulness nesses by de (chief heard Ct.1956) witness reasons the testimony is one court). ciding in their limited appellate courts non-jury judge right “The trial has the scope In federal review. duty bearing 52(a) Rules to observe the and de- Federal cases Rule findings witnesses, provides meanor of the and where Civil Procedure conflicting, may appel- the evidence he take set aside fact not be shall things per- “clearly these into erroneous.” account. Such unless late court Gyp- sonal observations cannot trans- v. States be States United See United page, yet 394-95, printed Co., 364, 68 ferred to S.Ct. sum 333 U.S. judge may, must, give (1948). The 525, often them 541-542, 92 746 L.Ed. weight making may evi- his all the decision. court examine present regard record, must instance it to is difficult see dence but judge given opportunity of the trial how who entered to the find- be ings proper credibility opportunity judge had judge wit- to Mfg. any question See, g., decide Tank & e. nesses. Graver affected credibility Co., of the witnesses.” Co. v. Unde Air Products 537-38, 535, L.Ed. 69 93 S.Ct. Nugent, F.2d v. 100 United States 605, part, (1949), rev’d 215, (6th 1938), cert. denied Cir. 854, 94 L.Ed. 1097 Fidelity sub & Columbia Trust nom. Lines, Mid., Fjell-Oranje Aunt Inc. States, 648, Co. United denied, 712, (7th Cir.), cert F.2d 83 L.Ed. 1046 L.Ed.2d also, Products, Smith v. Dental (7th Although Division’s Right Argue Trier b. scope of review somewhat broader (N.Y.C.P.L.R. argument 5501(c)), importance be- New York oral The practice recognizes judge finding trial court assist fore the fact evaluating position drawing is in the best evi- evaluate inferences probative dence. He who and heard the cannot “has seen force of evidence opportunity ques- witnesses and is an essential underestimated. It tion part them not . . has often an ad- denied of the trial which litigant. to a Casualty Co., Court has delity App.Div. & just re-emphasized point 1901) (1st Dept. declar- 72 N.Y.S. 498 (court unconstitutional deprive party permitting deny privilege presenting counsel and- opportunity through to make a summation its counsel own views of end of conflicting a criminal upon case tried questions without a evidence Herring jury. York, v. New pass); People 422 U.S. which the fact finder tois Marcelin, 369-70, 45 L.Ed.2d 593 23 A.D.2d (1st 1965) Dept. 561-62 N.Y.S.2d argu- closing “There be doubt can (the proper argument of the cause is element is a ment the defense basic hearing part much a of the trial as the adversary factfinding process *30 evidence); Maguire, of et al., Cases and . in overwhelming criminal trial. . . [T]he a Evidence, (6th Materials on 1006-1007 authority, weight in of 1973); Annot., Prejudicial ed. of Effect courts, and state holds both federal Denial, Equivalent, Trial of Court’s opportunity a of total denial Right Argue Case, Counsel’s 38 A.L.R.. argument nonjury in for final crimi- (1954). 2d 1396 Even under the conti right trial of the basic nal is denial nental system, nonadversarial where the of the accused to make his defense. judge interrogates not and counsel [Tjhere justifica- . be no can witnesses, argument by is oral counsel empowers tion for a statute that Damaska, considered vital. See Presen deny judge absolutely trial Factfinding tation of Evidence and Pre any closing opportunity for summa- cision, 1083, 123 ofU. Pa.L.Rev. 1090 denying tion at all. ... (1975). See also id. at 1100. right appellant this under autho- argument by The denial of oral rity statute, of its York denied prius right nisi court is a denial of the him the of assistance counsel that the to counsel under the Sixth Amendment guarantees.” (Footnotes Constitution of the United States Constitution. Since omitted.) incorporated the Sixth is Amendment 857, right into 859, 862, 863, Id. Fourteenth at Amendment’s 95 S.Ct. process, attorney 2553, g., due 2555, See, the New 2554, e. Walls, 1220, disciplinary practice v. United States 443 F.2d constitutes a denial (6th 1971) (“Preclusion process. See, g., of of Argersinger 1223 e. arugment closing appellant Hamlin, 25, the v. denied 2006, 92 32 counsel”); (1972); Klopfer L.Ed.2d effective assistance of v. North Carolina, Sawyer, U.S.App. United v. States (1967). (1971) L.Ed.2d 1 D.C. n. 5 (“The argu right present defendant’s limiting argu- level, appeals At the part of ment is Amendment his Sixth cases, justified. may, in some ment .); to counsel . United Com’n. Federal Communications See States ex rel. Wilcox v. Commonwealth Station, WJR, The Goodwill Pennsylvania, F.Supp. 923, of 1103-04, 93 L.Ed. (E.D.Pa. 1967) (right have counsel proceedings for the But present legitimate argument to fact level, just to be at the trial where credibility recognized finder is in- an essential facts, including issues gredient process); explored fully, of due Williams witnesses, of must Brooklyn Co., presentation Elevated opportunity, R.R. 126 N.Y. for oral 96, 102-103, (1891) (coun- 26 N.E. 1048 Londoner counsel is essential. prevented sel Denver, should not be ex- ercising (1908); Llewellyn, within the four corners of the 52 L.Ed. 1103 K. way Deciding evidence the widest latitude The Common Law Tradition: comment, Screening Note, in Appeals denunciation or advocating cause); Lyman his v. Fi- in Criminal Cases the Federal Courts ' working did some idea what Proposals, 73 Appeals: Practice scoring victory.” (Emphasis Colum.L.Rev. original.) level, judges Even at expressed the view have Llewellyn, Tradi- Law K. Common opportunity argument, providing the oral Deciding Appeals 290 tion: exchange and coun- for an sel, between significantly de- affects the often Original Court Jurisdiction Commission Revision cision. System, Struc- Federal constitutionality applicable While Recom- and Internal Procedures: ture states, 52(a) the Federal Rule Change (1975). An mendations typical of Procedure of Civil Rules ninety per impressive at- cent findings requires practice. It American torneys questioned in an extensive sur- to made of law be and conclusions fact vey three cir- attitudes upon facts tried civil actions all agreed cuits that: promote object jury. The without er- “judges avoid better able to judges in part as trial care on the interpretations of the facts roneous pro certaining to aid the facts they if can direct issues the case applica permit adjudication, to cess counsel, *31 that oral questions to judg estoppel of judicata and of res tion argument permits to ad- guide appellate on court ment, and to to those which dress himself issues Advisory See, g., Committee e. review. judges are crucial to the case.” believe 52(a) United to Rule Note response (2d 928, to this data and Id. at 67. Forness, F.2d 942 v. 125 States testimony, on other the Commission City Cir.), Sal denied sub nom. cert. 694, of the Federal Court States, Revision 316 U.S. amanca v. United Congress System (1942). es- recommended that 1293, L.Ed. 1764 86 62 S.Ct. standard, ap- findings minimum tablish a national “afford must The trial court’s plicable appeals, upon understanding ground courts of each a clear providing opportunity judgment.” that the for oral the court based Corp. argument as the norm. should viewed ex rel. United Fluor v. States (9th 823, Id. at Co., 828 Steel F.2d Mosher 405 denied, 1014, Cir.), 89 S.Ct. cert. 394 U.S. c. Statement of for Reasons Decision also, e. (1969). 1632, See 23 40 L.Ed.2d process requires Minimal due a Co., g., Kellogg 440 v. Lemelson decision maker confine itself to rec- 1971); Berguido v. (2d 986, 988 Cir. ord, legal to the evidence adduced at 874, Inc., Lines, 369 F.2d Eastern Air hearing, applicable law, to the rules of denied, (3d 1966), 390 cert. 877 Cir. a sound exercise discretion. 1194, 996, L.Ed.2d 20 U.S. S.Ct. Without written statement from the observed the court As maker, decision there is no assurance 1,No. School District Russo Central requirements that these are met. 1972), (2d 623, cert. Cir. 469 F.2d explanation important Such an is an 1899, 932, 36 L. denied, any judicial opinion. function of Pro- (1973): Ed.2d 391 Llewellyn’s fessor par- is observation ticularly apt: nothing “Findings cold that are but “Plainly [letting feel . . counsel extraordinarily rhetoric, couched dealt care- that the ease has been general terms, stripped broad and fully fairly] function and is one analysis justification underlying surely one; pres- slight our at no but accompanying memorandum or an juncture impor- equally, light ent a more shedding on opinion some (and is let the winner reasoning tant office employed, invite closer scru- incidentally loser, tiny, especially in- and not at when the case concerns all the n cidentally, any get bar) member constitutional freedoms.” fundamental States, also, 271, S.Ct. at 1022. United Id. at See Schneiderman 129-131, 320 1338-39, 63 S.Ct. Court, recently, More Morris- L.Ed. 1796 sey Brewer, (1972), cases, ruled that 33 L.Ed.2d 484 In criminal when a case is tried parolee hearing court, 23(e) to a before Rule of the Federal parole. hearing revocation of should provides Rules of Criminal Procedure place stages: preliminary take findings in two request a defendant 'Nthat' hearing to is They determine whether there of fact. “aid the defendant probable parole presenting cause to believe a viola- questions and aid committed, tion has been delineating formal and a court hearing finally adjudicate revocation factual bases which the trial court’s charge. required The court a writ- decision rested.” United v. Liv States ten ingston, statement of the reasons for the (3d ac- 459 F.2d Cir. stage hearing: tion also, taken at each United v. John States son, (5th 1974), 496 F.2d deciding “Our task limited to denied, cert. requirements pro- minimum The rationale They L.Ed.2d. cess. include ... writ- for the criminal and civil rules simi ten statement factfinders lar; require both the trial ana to the evidence relied on and reasons lyze grounds the case and articulate the revoking parole.” (Emphasis sup- judgment. on which it based its All plied.) judges process are aware that this some 488-89, Id. at also, 92 S.Ct. 2604. See original, times convinces us that our id. 2603; at United tentative, conclusion was unwarranted. States ex Chairman, rel. Johnson v. N.Y. Parole, F.Supp. Board (E.D.N.Y. 1973), Administrative Determinations 500 F.2d 925 aff’d *32 (2d 1974) (right opinion to written reviewing Courts administrative deter parole denied); when Miller v. Iowa acutely po minations are aware Comm., F.Supp. 415, State ASCS for insure tential abuse and the need to (S.D.Iowa 1974) (reasons for involun- by judicial fairness and facilitate review tary employment). termination of requiring statements of fact. In Gold berg Kelly, 254, v. recognized have York courts (1970), 25 L.Ed.2d Su importance stating for de- reasons preme required Court a state to afford' cisions administrative In boards. recipient pro a welfare minimal Vincent, Solari 46 A.D.2d terminating cess before his ben 332, (2d 1975), welfare Dept. Ap- N.Y.S.2d efits. The held court that minimal due pellate Morrissey’s Division followed process included a ruling statement reasons judicial that effective review of for decision: parole release determination could not be had without statement of rea- “Finally the decisionmaker’s conclu- reviewing sons. gents’ the Board of Re- recipient’s eligibility sion as to a must suspending solely chiro- legal determination rest on the rules and evi- practor’s license, the court Gold v. hearing.... dence adduced at the Nyquist, 43 A.D.2d N.Y.S.2d compliance To demonstrate with this (3d 1973), Dept. it found was un- elementary requirement, the decision fairly able to evaluate the board’s deter- maker should state the reasons his for findings mination since no fact had determination and indicate the evi- Accordingly, been made. it remitted the on, he though dence relied . findings matter for of fact. his statement need not amount to a opinion findings full or Particularly even formal when administrative ac- (Em- personal fact and conclusions of tion “touches on fundamental law.” phasis supplied.) life, health, liberty,” interests Ap- country appeals is the Fund v. Ruckels Environmental Defense pellate of the Division U.S.App.D.C. haus, sitting year Brooklyn. sought in 3,190 “Last Court (1971), have courts disposed appeals, increase protect administra interests those per cent over its total.” of 14.3 by requiring admin tive arbitrariness Times, Justice, ‘Realistic’ N.Y. March support decisions istrators also, Hopkins, at col. 1. findings opinions. See reasoned of fact and Appellate The Role an Intermediate See, g., e. id. at 597. Court, Brooklyn L.Rev. 459 repugnant to due fiat is Decision process rendered increased workload the decision is whether over Concern resulting judicial tribunal. an administrative courts of the development Judge delay Frank wrote United to the As Jerome has contributed handling Forness, cases. techniques 125 F.2d for States of new City Fed- (2d Cir.), denied sub nom. Revision cert. on Commission See States, System, Structure Salamanca United eral ‘Court (1942): L.Ed. 1764 Recommenda- Procedures: and Internal Note, Change, 54-55 for tions properly judiciary holds admin- “The Screening in the Fed- Cases of Criminal high standards istrative officers Appeals: Practice and eral Courts fact-finding discharge of 1 at Proposals, n. 77 and 73 Colum.L.Rev. judiciary should at function. The Justice, N.Y. ‘Realistic’ 77 Times, up to the same stan- least measure col. March dards.” is the writ- of the areas affected One substantially Any person by a de- hurt opinions. ing judicial publishing of given opportunity should be cision example, Use For Committee in the trier’s know what mind. Energies of the Advis- why. punished Those deserve to know ory Justice Council Leflar, Observations Concern- Some “principles procedures proposed that Opinions, Judicial 61 Colum.L.Rev. adopted reduce the should be that will publication appellate opinions that are Appellate Review general significance pub- without lic, legal profession, to ad- courts, Traditionally, appellate in well vancing the functions of law.” thoughtful opinions, have reasoned litigants Standards Publication Judicial apprised court’s reasons *33 Opinions, No. 73- by FJC Reasearch Series dint in their case and for decisions (August 1973). 2 at 5 painstaking justifications, contributed development Reliance to the of the law.' is, therefore, surprising that It not “regularity” “reasonability” on for- courts have over half the circuit system. produces appellate See a viable many under which mulated local rules Llewellyn, Law Tradi- K. The Common opinion. Com- cases decided without are (1960). Deciding Appeals, tion: of the Federal Court mission on Revision adjust practice to of this Abandonment Writing System: Opinion efficiency undercuts both demands (1974). de- Cases and Publication public and constitutional confidence in the in this manner are listed cided values. g., Reporter. See, e. of the Federal back (1974). is a There the last decade the number of 503 1396-1405 Within great variety procedures an- used to cases the federal courts Cramton, result, tripled. Federal with or without some nounce reasoning court, 59 Cornell L.Rev. 571 articulation of the of the Justice categorized (1974). also, Rosenberg, all of as cases Planned See Changing Flexibility opinion. in the to Meet Needs of decided Rule 21 without Appellate System, opinion provides is the Federal 59 Cornell Fifth Circuit that (1974). appropriate L.Rev. The busiest not Haworth, Screening Summary See & the court determines “[w]hen following cir- Procedures United States Courts more of the one or Appeals, Wash.Univ.L.Q. 257, dispositive of is exists and cumstances analysis n. 271 and existing 85-89 for court for a matter submitted (1) judgment rules. of the that a decision: findings of is on district court based significant It is of the that none Rules erroneous; clearly are not fact which analyzed permits Haworth reversals support (2) of a evidence in that the opinion. agree without All seem insufficient; (3) jury is not verdict losing litigant is entitled to know order of that agency an- administrative why he lost. Since the trial court must supported evi- substantial is give trials, reasons bench it can be (4) whole; dence on record as a assumed that an affirmance without appears; and the no of law error opinion reasoning found the below sat- opinion determines that an also isfactory. precedential no .value have would Undoubtedly courts must deal effec- appeals. tively with the “flood tide” of opinions Many mention such contain no Taylor McKeithen, See analyzed; the issues authorities 1980, 1983, 32 L.Ed.2d they merely or “En- state “Affirmed” (1972) J., dissenting). (Rehnquist, See, g., e. v. United forced.” Henderson always procedures But efficient Service, Health 502 F.2d States Public recognizes just. Constitution “[T]he (5th 1974); Cir. N.L.R.B. Union higher speed efficiency.” values than Tronquistas, (1st de 503 F.2d Cir. Illinois, Stanley v. 1974). explanation for an of the 31 L.Ed.2d 551 rule, Amalgamated N.L.R.B. v. Cloth. Moreover, part judicial task of Amer., AFL-CIO, Wkrs. Local opinions acceptance is to insure the (5th 430 F.2d 966 system gov- society law in the Circuit, panel In the Second when Leflar, erns. See Some Observations unanimous its decision to affirm Concerning Opinions, 61 Judicial Colum. and in its that no advan- determination L.Rev. From a nar- tage publica- would achieved standpoint particularly rower it is de- opinion, tion of an decision an- expectations legal that the sirable summary nounced from the bench or community your be realized. For “when U.S.Ct.App. order. Rules 2d for the stop rooting, your rooters constituents Cir., Rule 0.23. This oral decision ardor, general public lose and even the include a brief statement of the court’s begin mutter,” a crisis of confidence reasoning. may develop. Llewellyn, K. The Com- Deciding Appeals mon Law Tradition: procedures memor- include a Other specifically prepared andum litigants, request States Commission Rules United At Circuit, Appeals for the Court of 9th of the Federal Court Revision *34 21; judgment Third in the System, Rule orders the Science Bureau of Social Judge survey Circuit, (Testimony of of a ran- Chief Seitz Research conducted attorneys, domly group ex- of before the Commission on Revision selected of System pro- Appellate perienced Court at Federal in federal Aug. 2, 1973), Washington, cedures, Second, D.C. in the Fifth Sixth closely opinions. They questions orders de- which resemble were Circuits. asked background, Ap- signed Rules peals of of United States Court to indicate their Circuit, feelings for Rules the desir- the 7th Rule 28. measure about types ability cited in of Commission Revision of of abbreviated certain Appellate Opin- System, procedures preferences Federal Court when and their Writing (1974). Publication, required ion between var- at “trade-off” Judge-made law particularly law—and procedures. on Revi- Commission ious part of —grows. an essential It is Sy- sion the Federal Court of principles of process the creation Writing of at Opinion Publication stem, & fairly predictions can be on which (1974). attorneys it clear made conduct, ac- for as a basis forecast significant they for it that considered Judges countability, All like. or the provide for the court to some rationale latter cases that some know the result: may completely trans- almost factor of evidence dramatic “The most importance the case which cend attorneys attach importance which bringing questions vehicle is the for the reason record a written forward.” ex- view in the found can be decision of the by two-thirds pressed Anything more than carefully less than controlled proc- surveyed attorneys employment selective of decisions with- be should explanations litigants the Constitution out ess clause leaves with the appeals to require impression courts held the result was reached statement by fiat, possibly a brief least write without a clear under- for their decisions.” standing reasons of the issues the court. Commission on the Revision of the Fed- Federal Revision of for Commission Appellate System, Opinion eral Court Writing System, & Structure Court and Publication at 7 Recommendations Procedures: Internal Concerns such as these be dealt with survey Change If this for adequately more permitted if the bar is attorneys’ values, there is indicative development contribute to the of in- great in the that confidence risk is a procedures. termediate court Id. at 11. judicial system unex- affected be safeguard A better adoption would be plained decisions. of the Commission on Revision of the Unquestionably use of affirmances Appellate System’s Federal Court recom- opinions certainly not to “is without mendations for the statement of reasons encouraged clearly in other than deserv- every case: Haworth, Screening cases.” & Sum- every recommend that case “[W]e mary Procedures United States brief, record, there be some however Wash.Univ.L.Q. Appeals, Courts reasoning form, and whatever the Appeals 272. As Court impelled the decision. put the Fifth N.L.R.B. Circuit signed unsigned, Opinions can or Amalgamated Cloth. Amer. Wkrs. of published unpublished, each but AFL-CIO, Local 430 F.2d litigants case the and their (5th 1970): reasoning apprised would be important “A most function is the which underlies the conclusion writing opinions. Opinions court.” purposes number serve a at least on Revision of the Federal Commission significant. highly two of which are System, Court Structure is that an One articulated discussion Internal Recommendations Procedures: factors, legal, both, factual or Change which lead the Court to one rather gives result, strength than to another appar- Although system, reduces, ently if not of sum- condoned the eliminates, easy temptation mary deciding affirmances a case in tendency (Lego posture to ill-considered or even without comment arbitrary having Twomey, action those n. power awesome of almost final review. *35 L.Ed.2d n. second, course, very Taylor The also, see that the McKeithen, 4, 1980, discursive statement of 1982 n. these articu- 194 n. thing clearly (1972)), lated reasons is 32 L.Ed.2d it has the out of which expressed courts, preted by its York Section dissatisfaction with the New sum- mary Judiciary Taylor McKeithen, pro- Law denies reversals. 90 of the Ap- supra, disciplined by challenge the cess to involved a to' the 1970 trier, Appellate self-reapportionment pellate The the Division. Louisiana Legislature. the facts without hear- summary opin- Division, In a brief decides ing oppor- Appeals ion the the and without Court of the witnesses reversed the findings tunity credibility District observ- Court’s made to determine after holding hearings ing plan testify; a it counsel the on denies submitted them specially argue appointed orally a opportunity the master. merits Bussie v. give (5th case; McKeithen, the fails to reasons and it decision, rejects re- The when it not its could even port determine heard the whether a referees who have substantial feder- question al existed because un- witnesses. was Appellate sure reasoning. Court’s proceedings In each of consolidat- It, therefore, judgment vacated the be- case, ed in afford- was low Although and remanded the case. hearing meaningful only ed a be- —but recognized the Court ap- that courts of appointed fore referee to hear peals should have wide latitude in their report. only judge to The referee —the decisions of whether or how to write pass see on the witnesses their de- opinions, it observed: meanor —did not decide the case. sitting contrast, Appellate Division, summarily “But here the lower original any opinion as the court of jurisdiction, act- a reversed without on hearing testimony, ed point without view- been which had considered at parties, observing length by Judge.” the confronta- the District witnesses, listening tion of the to ar- 194, n. guments of counsel. n. 32 L.Ed.2d 648 suggested long York, the ref- judicial It has been New so a leader in a proceedings in fact protection eree in was administration these and the of hu- though only rights, recognizes importance man he sat “court” even agent Appellate explanation appellate of an Division. decisions implication Appellate Divi- all civil is that N.Y.C.P.L.R. 5522, cases. reviewing predecessor performs sion de func- well as provisions, pro- has facto that, reversing vided tion on motion to confirm disaffirm “A court or modi- clearly fying report. judgment its But this opin- referee’s or order without grounds briefly ion not the case. shall state the its requirement decision.” In 1975 the First, although Division every broadened cover was power has questions to review fact adding “affirming.” the word 1975 Ses- appeal from the decision of a court in a N.Y., sion Laws are ch. We non-jury case, it must attach consider- reliably informed that weight able judg- trial court’s Appeals adopted Court of has the same ment. As the Ap- New York Court of appeals. for itself criminal peals put People it in ex rel. MacCracken Since, however, the decisions in dis- Miller, N.Y. 50 N.E.2d barment cases Division (1943): not, technically, appeals, Appel- ap- “In all cases the court in late Division bound follow praising weight must evidence construing N.Y.C.P.L.R. 5522 Sec- recognize power to reverse Judiciary tion 90 of the Law. finding of the trial court is not un- 2. Failure New York Procedure Judge limited, and that the Trial who to Meet Minimum Standards of has seen and hear the witnesses and Due Process opportunity question has them and guide From the trial, discussion law and the course of the apparent advantage facts, that, it is often as inter- over the *36 its own It is free to substitute Judge Division. conclusion must reach who his findings proposed those views and upon record alone. So the written referee, by is that, referee, for not the pointed it, the out how- has this court original g., grant See, e. Matter statutory trier. may the be the ever broad of City Education Appellate Bd. power Division to Gehr v. 436, 440, Yonkers, N.E.2d appeal upon 304 N.Y. merits an the determine Broome, fact, In Re 13 A.D.2d to matters of law both as (2d Dept.), finding ‘power N.Y.S.2d 822-23 of fact to reverse a grounds, N.Y.2d only on other in accordance rev’d be exercised regulat- general N.E.2d 862 rules of law 224 N.Y.S.2d ing appeals to that court. It Second, in the referee were fact if finding of value made at set aside a then in such Levin’s “court” cases finding Term, Special such unless Appellate Divi- and Mildner’s where theory upon of law based erroneous and makes a sion “reverses” its referee ruling in the or erroneous admission “finding aggrieved fact,” new at- or exclusion of evidence or unless it right torney woud have automatic an appears Special court at Term appeal questions on all of law and fact give conflicting has failed to evi- Appeals. N.Y.C.P.L.R. weight dence the relative which it 5601(a) (ii); 5501(b). attorneys in But should have thus has arrived at position pre- this do not have this a value which is excessive or inade- cisely because the referee is not a ” quate.’ “court” It under the statute. would be recently, attorney Wilson, More if the referee in Collins 40 otherwise an 750, 751, designated disciplinary proceeding A.D.2d 337 N.Y.S.2d were (4th to hear and determine. N.Y.C.P.L.R. Dept. 1972), Appellate Division declared: 4001 and 4301. Third, findings Appellate “We should not if disturb Division were based hearing

upon conflicting appeal, an it would have to evidence and involv- grounds credibility “state the of its decision.” N. witnesses unless it already noted, is obvious that the court’s Y.C.P.L.R. 5522. As conclusion by requirement applicable could not be reached is not inter- to deci- fair pretation precisely disbarment evidence.” sions because proceedings Appellate Divi- State, Billington g., A. e. also, appeals. sion are not D.2d N.Y.S.2d nay, Finally, (3d Dept. 1969). conceded— attorney urged- in an the referee —-that professional misconduct case disciplinary proceeding is not a court engineers, by physicians, chiropractors, further, and, proceedings that the by and all others covered York Ed appeal or not an Division are ucation Law Sections review (Defendant’s review. Brief n. and Division is limited 23): the- substantial as to the evidence test determined the Board of Re facts “Referee referee [the Silberman gents. 6510(4); see, only appointed N.Y.Educ.Law Levin’s case] was that — g., Tompkins Appellate Division, e. Matter v. Bd. Re as an arm gents, court, report 87 N.E.2d 517 N.Y. of that to hear and his ; (1949) Nyquist, Obviously Corwin v. A.D.2d recommendations. . . (3d Dept. implication N.Y.S.2d is that Referee Silber- proceeding, man decided the he which By contrast, the decision of a did not and could not. im- referee Another report, plication to hear and such referee is that the motion to confirm proceeding, report appeal, the referee’s way binding upon no it was not. *37 ing facts. the im- When vindication of legal rights portant necessarily hangs [Although] referee, the Morton B. balance, in require the the must law happens Silberman to be a Justice of preserve whatever is essential to the Supreme Court, the acting he was not integrity fact-finding process. as such designated when he was recognized widely The method most serve as referee report’ to ‘hear and regard imposi- effective in that is (and Levin’s Gerzof’s) disciplinary requirement tion of the that the fact- proceedings. such, As Silberman was actually finder observe the evidenti- acting as an arm of the Di- process ary properly weigh so as to vision. pursuant He acts to CPLR appraise testimony. 4320.” magistrate and hears Since sees attorney disciplinary proceedings In evidence, the district court is en- process hearing requires rely upon titled to his recommenda- power before the tribunal with the making tions when on the decision punish. decide and If, however, motion. district court hearing has found such a to be an im reject chooses to the recommendation portant right” “trial without which such magistrate, it must itself hear guarantees process fundamental due testimony see evidence be- hearing confrontation and a fair would deciding Permitting fore the motion. Page, be devoid of substance. Barber v. simply dry the district court to review 719, 721, recordings tape records or listen to (1968); Berger L.Ed.2d 255 v. Cali evidentiary hearing conducted fornia, magistrate satisfy would not 21 L.Ed.2d 508 also high standard which must be set for Maryland, F. Williams v. State factual determinations which them- (D.Md. 1974). Supp. 756-57 selves can decide the outcome of a Speaking of a decision on a motion to criminal trial. The defendant en- suppress, the Ninth Circuit noted the titled important to the assurance that dangers separating person who factual conclusions will from be drawn sees the witnesses and the one who makes testimony and other evidence itself. the decisions: provided That assurance is if the dis- “Requiring the re- district trict court decides the motion in ac- hear the evidence if it not to decides cordance with the recommendations follow the recommendations of the judicial officer who observed the evi- magistrate insures that decision certainly dence. It provided if the on the facts will be the result of first- district court sees and hears the evi- hand observation of witnesses evi- just dence itself. But it is as certain- recognized long dence. The law ly absent if the district court is allow- the value of these more im- immediate disregard ed to the recommendation of gives pressions, and them a measure of magistrate and decide the motion protection easy modifications only on the dry basis of records dry made on the basis of records.... permitting A rule of law the district Bergera, United States v. 512 F.2d assign judge evidentiary hearings (9th 1975). 393-94 Cir. magistrate, disregard and then magistrate directly recommendation of only point In the case hearing any testimony found, without we see- have a federal court has ruled ing any evidence, fly would suspension the face a state court’s order of legal respect traditional recognized for find- should not be ings of fact made on pro- basis full federal court where the state participation recog- permit the methods cedure did not opportunity nized as most effective for determin- be heard before the court and thus guarantee of due process. Noell, is a violation process.” lacking in due In Re (8th case, Cir. against following charges filing Vater, United States 259 F.2d attorney, appointed the court a com- (2d 1958) (Lumbard, J., dissenting). findings report missioner hear and his *38 hearing counsel, arguments Without of fact and He recommendations. rec- Appellate Division, merely the after read- year suspension ommended a two and ing record, a cold substituted its own testimony the transmitted and briefs to in view Mr. and Levin’s Mr. Mildner’s parties permitted the court. The were to cases, Although, for that of its referee. exceptions, make there were no oral but proceeding, in Appellate Mr. Gerzof’s the arguments. or written adopted essentially Division report, he, too, referee’s its argument, hearing, “Without without a deiprived was of a mean- affording respondent without the an ingful hearing before trier of fact. opportunity heard, to be that court exceptions overruled all to the com- report

missioner’s and entered C. Review suspension order of . . Id. Requirement at 6. 1. Due Process statute, like Section 90 The Missouri moreover, finding, affects This Judiciary provided Law, plaintiff’s failure that New York’s claim suspend, power or had the to disbar court right appeal attorneys as of to accord although appoint commissioner it could from an adverse decision the trier-of- suggestion The was hear evidence. process. it fact is denial due While there, as it been made de- made has process generally does is true that due here, requirements that the fendants litigants provide require not a state to process were satisfied the com- review, the same is not hearing bination of the before the com- here, where, as state failed true has missioner the briefs available hearing provide in for a full fair argument rejected: court. This original jurisdiction. As the court of hearings before the “[T]he commis- ex rel. stated Ohio Court. hearings sioner were not before Bryant Metropolitan Dis v. Akron Park apparent court. . . is [I]t 228, 230, trict, 74, 80, 50 S.Ct. that court no time the re- afforded (1930): 74 L.Ed. 710 spondent opportunity to be heard upon before it of the con- merits process “As to the due clause of the troversy power which it alone had Amendment, Fourteenth it suffici- is determine.” say that, frequently ent to deter- Schlesinger, Id. at 7. In Re 404 Pa. Cf. court, right appeal mined A.2d process, pro- is not essential to due Admittedly, the court Noell did not process already vided that due been advantage even having have the writ- accorded of first in- tribunal specifically ten briefs directed toward stance.” disposition. the ultimate But this addi- tional factor the cases us before can- g., Lindsey Normet, also, e. remedy not process the lack of due af- 862, 876, 56, 77, L.Ed.2d forded attorneys: these “A fair a fair tribu- trial “[They] requirement proc- were of due nal entitled to a basic trial ess,” Murchison, nothing issues that means Re less (1955), than that the L.Ed. trier of the facts should level, important hear at the and if it is not afforded trial evidence. This by way constitutional of. corrective action must essence system possible. justice our its denial ney discipline may Due Process 2. Failure Give be abusive and un- just. Lawyer Discipline Level at Trial or Needs Im- Cf. (Feb. provement, Bar N.Y. State News 5 Appellate Division does not afford The hearing; may impose party one fair hearing testimony discipline pro- ever Whether the without Division counsel, ceedings arguments or without are likened to those of a court observing parties. stating of first

ever or instance witnesses its decision or to cases, reviewing those of a court In such the Fourteenth Amend- an administra- agency require determination, to tive ment at least the state board’s would judicial give process appellate review, attorney the due him some state- through appellate ment of the review. The New basis its decision must given. obligations appel- statute does of an ag- late provide reasoning articulate review all *39 reversing grieved by Appellate when a trial the Division’s de- court are substan- Surely, responsibilities tial. cision. of Appellate Division, sitting as a of per- The statute has another It defect. original determination, great. are as If Appellate its mits the Division to reverse the court administratively finds it con- punish report severely referee’s an venient to first refer actions stating it without the evidence to report, referees for a still, it must as relies on or decision. the reasons its body power decide, to state very This strikes at the heart of due reaching reasons in its own decision. process. only may promote It not arbi- maker; trariness it the decision arbitrary makes detection of conduct EQUAL PROTECTION V. any more difficult in review of the de- Plaintiffs also contend that the fail- cision. statutory procedure ure of the York New Appellate In Mr. Mildner’s case Di- provide appeal right of an as from opinion vision’s findings, made no detailed factual Appellate Division determination rather, conclusory fash- but equal protection them denies of contrary opinion, ion “In our stated: litigants laws that all other New York charges fully report, all three are appeal have one of from the de- as proof.” Mildner, sustained In Re original termination of the finder. fact 350, 351,

43 A.D.2d 352 14 N.Y.S.2d Right Appeal (2d Although Dept. 1974). A. New York Appel- late Division affirmed port re- its referee’s As one of York’s most distin- respects, in all other guished Mr. Levin’s judges recently wrote, in this case, charge it also one reversed in a state: ruling, discrediting summary thereby firmly that a rooted “The notion is Justice conclusion that Silberman’s “[a] litigant is entitled to at least one re- thorough analysis of the evidence leads of final view a decision.” charges me to the conclusion that Hopkins, The Role of an Intermediate against supported by little [Levin] Bklyn.L.Rev. Court, 41 conjecture more than and surmise.” Re- 463 port Findings Morton Justice Sil- berman, litigants, following Levin, In the Civil Matter decision at 63 (August 31, 1973). original jurisdiction, from In neither the court of case given explanation Supreme Court, County such as de- adverse Family Court, may appeal or for the Court or the cision severe sanction im- posed. explanation questions to the Without some for the Division where discipline, attorneys Ap- decision law and fact are reviewed. See pendix B, future will be unable to Criminal defendants al- know con- what infra. professional appeal right, stitutes so have at least one misconduct. Unless standards, scope there are ascertainable with a similar attor- review. Ibid. L.Ed. professionals, Moreover, U.S. other when system (1956), justice pharm relies our chiropractors, physicians, such heavily Once a disciplined, review. acists, engineers are appellate process, provides an appeals state hears Division deny appeal Regents. arbitrarily the Board the decision of litigants: a selected class questions of law review all Ibid. It according “substan and the facts . . “When an is afforded g., See, e. Cor tial granted evidence” standard. litigants it cannot to some Nyquist, N.Y. win v. A.D.2d capriciously arbitrarily denied 1971); Dept. Miller (3d violating S.2d Equal The others without University Regents Board Protection Clause.” Y., N. A.D.2d N.Y.S.2d Lindsay Normet, 56, 77, (3d Dept. L.Ed.2d contrary, Attorneys, have no on the also, g., e. National Ma Union of rights. parallel the New Pursuant Arnold, rine Cooks & Stewards v. ag- statute, attorney disciplinary L.Ed. 46 grieved attorneys are entitled to a re- right only view as of Court of when the Llewellyn ap- characterized Appeals questions finds constitutional pellate courts as the “central and vital controlling or, apparently, Ap- when symbol Llewellyn, of The Law.” K. *40 pellate Division Justice N.Y. dissents. Deciding Ap- Common Law Tradition: 90(8); Jud.Law N.Y.C.P.L.R. peals years (1960). ago, 4 Over 150 appeal granted, if Even such an is position Senator Clinton declared his severely Appeals’ Court of lim- review is appeal in an heard the New York may questions law, ited. It review of State Senate: disciplinary it but will affirm the de- guard against “In order to the falli- sup- cision if there is “some evidence” bility understanding, of the human it, port Matter substantial not. See and to shield the citizen from the at- Goodman, 143, 144, 199 N.Y. 92 of injustice, regarded tacks of be (1910); also, N.E. 211 See v. Del Bello as a land, cardinal principle in our County Ass’n., Westchester Bar 19 N.Y. single that no tribunal is intrusted 466, 472, 651, 655, 2d 280 N.Y.S.2d 227 with the sole of determination a man’s (1967); Flannery, N.E.2d Matter 579 of property.” N.Y. 106 N.E. 630 (1810). People, v. Yates Johns. Robinson, 354, 359, Matter 209 N.Y. of Appeals, quot- of (1913). analysis The New York Court 103 N.E. 160 For an of ing Yates, relating that pertinent stated statutes right litigants appellate review for all right “our it an essential law considers Appendix in B. New York see examined have his cause a suitor to superior English in which to those tribunals system, upon Even the aggrieved.” he system.is considers himself modeled, our pro- appeal vides findings for an from the Luckenbach, Matter N.Y. Disciplinary order of the Tribunal (1952). also, 104 N.E.2d 870 a Queen’s to divisional court of the Bench Handy Butler, App.Div. v. Division, and from there with leave to (2d Dept. N.Y.S. And Leach, House of Lords. P. A. The People Becker, Cal.App. court Disciplinary Look in Enforcement (1952), 2d 239 P.2d ob- England, (1975). 61 A.B.A.J. that served right every day “[t]he man his B. Nature Review in court is not limited to the trial Although provide day a state need but embraces not as well a his right appeal, appropriate reviewing Illinois, court.” Griffin recognized, Unconstitutionality C. im- have All states of Classifi- Attorneys cation appellate As portance review to a correct Not Appeals pro- Entitled to adjudication in matters criminal viding from a method some Separate treatment Illlinois, criminal conviction. providing appellate Griffin review 585, 590, 12, 18, 76 S.Ct. only if, according unconstitutional L.Ed. 891 Statistics show formulation, the traditional the classifi- proportion of criminal con- substantial cation does not bear rational relation- victions are reversed state ship legitimate governmental to a objec- Id. courts. Lindsley tive. v. Natural Carbonic Gas Co., 61, 78, appel- analysis functions An 55 L.Ed. 369 significant reveals late courts must be reason- classification “[T]he puts it: Kurland role. As Professor upon able, arbitrary, must rest not ground having a some of difference “Any three appellate court has at least relation to the fair and substantial perform. The functions distinct legislation, object so all correcting erroneous is that first similarly persons circumstanced shall by judicial rendered tribu- decisions alike.” treated judicial hier- inferior to it nals Royster Virginia, F. S. Co. v. Guano is to con- The second maintain a arch. 561-62, 64 among sistency the decisions of these L.Ed. 989 it, subordinate to courts so lower evenhandedly applied within the law appropriate, legislature may Where system. third is the lawmak- regulate professions different in dif- creating ing and amend- function of ruling ways. ferent Thus in that an act law, they only not so that rules regulating advertising dental lower courts with- followed unconstitutionally discriminatory *41 provide system, also to the but Supreme Court stated: guidance lawyers to and their clients any ground plaintiff for ob- “Nor has behavior, propriety of their as to the regula- particular jection the because obligations, duties, their their their tion dentists and is not is limited to rights, their remedies.” professional class- extended to other not bound to deal The state was es. Kurland, of the United Jurisdiction classes, these or to strike alike with all for Court: Time States at the time in the all same evils Change? 616, 618 59 Cornell L.Rev. way. deal the dif- same It could with (1974). particular in this Of interest according professions the ferent to speak di- case last function —to is this public in to needs the relation of rectly litigants the about their to claims. each.” granted, appel- appeal no was this Since Oregon Board State Dental Semler v. obligation late never met. More- Examiners, 294 over, Appellate Division, trier (1935). L.Ed. 1086 fact, apprised losing parties never purposes reports why presents three referees’ The to had been state reversed, way justify distinctive it its affirmed or in what believes attorneys. disciplined improper. had been The behavior treatment simp- attorneys First, argues only justice, are must it that law must not do it but professionals. justice. ly fungible Lasky, other it does not with show that Ob- provide serving state, therefore, dif- Appellate Opinions The From Below machinery Bench, disciplinary for other ferent 49 Calif.L.Rev. right ap- including professions, of. reviewing peal, important denying but such methods are' for reasons affording appropriate necessary oth- nor to all neither while to including proceedings lawyers. litigants, profes- all other er sionals. analogize The state to reason seeks

ing respect attorney discipline separate with to reliance on the The state’s disciplining procedures upheld procedures judges to for the Second misplaced. disciplin respect procedures problem Circuit with is teaching ing judges of a revocation Por is the same as that of dis certificate. lawyers. Regents ciplining dum v. Board Even trial New should a following discipline York, judge (2d Cir.), be removed 491 F.2d 1281 cert. de nied, practice pro he still continue to L.Ed. his Compare fession. Friedman v. State 2d gued In that case Pordum ar York, New that he could N.Y.2d not be removed from N.Y.S.2d during (1969), 249 N.E.2d with the classroom Vol. three four III, period hearing Directory preceding week Martindale-Hubbell Law concern upholding 1132. his amendment to fitness teach. In N.Y. Cf. Const., statutory (j) procedure recognized Art. to the the court submitted § people approval, November By contrast, lawyer when teaching li profession loses his differs “[t]he ability he cense loses his professions many from these other living way earn including that he train respects, special is vulnera- ed bility high to do. population, of the client duty care owed to that state Second, the state contends that since group, responsibility unique and the against the initial decision profes- other provide which the state an ef- sions, attorneys, unlike is rendered system of fective These education. body, they administrative inmore justify legislative distinctions de- judicial need of review. This is accom- termination that different treatment plished by proceedings, Article 78 respect disciplining which the review Appel- afforded professionals required.” different late Division is ordinary akin to judicial

Id. at 1286. appellate review. Karger, See Cohen & however, here, Powers of the pre- The state Ap- fails York Court of peals, (rev. justify legis- 51 at sent distinctions which ed. This deny attorneys conclusion unjustified; pre- lative choice to the state right. sents no evidence It is true that initial the state determina- *42 high duty preserve public non-attorney has a “to tions in cases, con- rendered af- process ter judicial a full hearing, fidence in the institution and to are more prone protect to judicial error public than the courts and from mis- initial de- cisions in Note, Imposition conduct.” The cases. Dis- The state place attorney chose to ciplinary discipline ju- Measures for the Misconduct dicial hands Attorneys, 52 Colum.L.Rev. first instance. It cannot duty to use this (1952). decision to But it owes a similar rationalize depriving attorneys pro- public rights protect unfit from other same grants of review doctors, it pharmacists, profes- all other fessionals— architects —who special sionals. The great relationship in- also cause between can courts and justify counsel con- jury. the court was entrust- Pordum In ing attorney discipline judiciary, to the necessity of imme- an cerned with justify but it giving not does attorneys diate, slightly delayed, opposed to as a rights fewer peers than in other hearing. case are concerned this we professions. safeguard ap- procedural with argument imposing peal a final from a decision state’s is that the final statutory gives procedure grievous no state affords the sanction. The neces- state, is, unlike court in the late discipline. sary “The establish- swift States, Supreme Court United procedures prompt efficacious ment of heavily appeals. Hop- burdened with See legitimate is state ends a to achieve proper Sparks kins, a from Low Fire: cogni- Small worthy state interest Appellate Proc- on the adjudication.” Reflections Some in constitutional zance Stanley Thus, Bklyn.L.Rev. (1972). ess, Illinois, 645, 656, 92 405 U.S. court, implied requirement 1208, 1215, 31 L.Ed.2d 551 explicit, appeal full Court that a professionals and other citizens But all certainly required Appeals be would prescribed who deviate from standards quite uncalled for and swiftly be burdensome disciplined must (cid:127)of conduct be judicial system. to the state effectively protect public other harm. Yet the fraud and state hand, would, simple other it be On the why only alleged- give reason fails to by designating as to amend the statute ly attorneys deviant must be denied the statutory Supreme trier fact the appellate review. only Justice who now acts as referee. determine,” subjects for a referee “to Provision the state attorneys Since opposed simply referee re- judicial process, equal protection as to a “to re- give already quires port,” exists in it New law. those rights gives appellate same it to all 4001, 4301, de- 4320. The N.Y.C.P.L.R. subject judicial process others to the un- cision of such referee stands “as by “legiti- it can defend less its decision court,” decision of a N.Y.C.P.L.R. mately Leg- Ely, defensible difference.” and is other reviewable as all islative Administrative Motivation court decisions New York. N.Y. Law, in Constitutional 79 Yale L.J. 5016(c). Or, C.P.L.R. the New York The denial of re- Supreme prius, opposed Court at nisi deprivation, view is a substantial Appellate Division, to the could made be great; state’s burden alierly original cannot cav- jurisdiction— the tribunal of equal justice.” “bolt the door to already judicial is in as it most other Illinois, proceedings. Griffin (1956) 100 L.Ed. 891 event, appeal could be In either (Frankfurter, J., concurring). people All from the decision of taken charged must, with misconduct so far as Division Court Justice concerned, equal- law is “stand on an capacity then in its usual would sit which ity justice every before the bar of review, the normal as a court American court.” Chambers v. State judge. to the trial There would deference Florida, protection kind of the same effective 479, 84 L.Ed. 716 profes- to all other as is now available adding in the state without sionals TO DENIAL ALTERNATIVES VI. system. of the state The trial burden AND DUE PROCESS OF would, judge under the York Civil EQUAL PROTECTION Rules, required to Practice Law appropriate consider alterna- It set forth his reasons for decision and procedure present the state’s tives to the normal accordance with might give protection additional *43 argument appellate court would hear oral adding lawyer to the bur- without prepare and decision. state If the of the state courts. dens can, inconvenience, meet undue without RETROACTIVITY VII. goals, for con- the excuse its substantive stitutionally suspect procedures becomes procedure need not neces- new This impossible justify. sarily any disciplinary upset or disbar- present- those other than ment decisions ly recognize the New do We question us. The retroactivr before highest appel- Appeals, already required exist- ity and under criteria are be examined recognized everyone newly York for but at- constitution ence used orneys. They Note, procedure. lower the would al rules criminal Cf. attorneys Retroactivity conduct to which Suits: Linkletter standard of Civil way (1974). Modified, is in inconsistent Ford.L.Rev. held. It no improve primary disci- proposals three this test there are Under other (1) purpose York. plinary procedures in New See considerations: Y., (2) standard, Report, N. the ex Jud.Conf. served new 18th Annual Leg.Doc. 90, “Disciplinary Enforce- courts law No. of the reliance tent Against Attorneys in New York: on the old rule authorities ment enforcement Recommendations,” (3) appli the effect of retroactive An Evaluation justice. ff. on the administration of cation See, Denno, g., e. Stovall

293, 297, 1967, 1970, 18 L.Ed.2d (1967); Walker, Linkletter VIII. CONCLUSION 14 L.Ed.2d Cross, Blackburn v. 510 F.2d statutory disciplinary The New York (5th 1975); United States procedure attorneys denies accused due Liguori, (2d 668-76 Cir. process permits of law. It court of require None these criteria original jurisdiction to rule without hold- retroactivity Nor, in here. view of the ing hearing stating a full and fair judicial regularity assumption of in de reasons for and then decision fails cisions Division need we provide as of find that current “raises serious this determination. When a court has guilty questions accuracy about the power determining the awesome past verdicts in trials.” Williams v. validity charges affecting an attor- States, United S. ney’s reputation livelihood, it must Ct. L.Ed.2d scrupulously procedural adhere g., also, Illinois, See e. Adams v. U. process. pressing There is a need to 278, 278-83, 916, 918-919, S. 31 protect public from unethical attor- judges L.Ed.2d 202 and neys, but a state not in its zeal to attorneys upon present have relied discipline ignore requirements them procedure long period retrospec for a of the United States Constitution. The would, application found, tive it could be also denying law is unconstitutional seriously disruptive. burdensome and attorneys equal protection ap- of an peal permitted changes professionals. These all would other vindicate the rights Judiciary Law, New York Section 90 in- to due process terpreted requiring a.major up- without New York courts should heaval be declared disciplin- method unconstitutional. state’s They only them. would call for the procedural safeguards page. introduction Appendix A on next

Appendix A THE NEW YORK ATTORNEY-DISCIPLINARY STATUTE: '

NEW YORK JUDICIARY LAW § 2, 3, 6, 7, SUBDIVISIONS 8 AND 9 practice by appellate division; Admission to and removed from character committees

[*] -x- ^{[*] [*] [*]} -X- -X- ^{[*] [*] [*]} supreme “2. power court shall and control have over and persons practicing assuming practice law, counsellors-at-law and all or appellate supreme department division of the court in each is au- censure, suspend practice any thorized to or remove from office at- torney and practice guilty profession- counsellor-at-law admitted to who is misconduct, malpractice, fraud, al deceit, misdemeanor, any or con- crime justice; or prejudicial duct appellate to the administration of division supreme hereby any court is authorized to revoke such admission misrepresentation suppression any with the information connection application practice. for admission to duty “It shall appellate be the division to insert each order of suspension or provision removal hereafter command rendered shall attorney and counsellor-at-law from the thereafter to desist and refrain any employee law in form, principal agent, either as or as clerk or of another. performance addition it shall any forbid the follow- ing acts, to wit: appearance “a. The attorney any court, as an or counsellor-at-law before judge, justice, board, public authority. commission or other giving “b. The opinion application, another as to law or its any or of advice relation thereto. suspension “In only, case of may period the order limit the command to the of time suspension' within which continue, justice such shall and if so re- quires may scope further limit the thereof. attorney “If an and counsellor-at-law has been heretofore removed from office, appellate upon application attorney division shall counsellor-at-law, any incorporated association, or of upon bar such notice respondent may required, be amend order of removal adding part thereof, thereto provisions as a required similar to those to be inserted in orders hereafter made. “If a copy certified of such order order, or of such amended be served upon attorney suspended office, counsellor-at-law or removed from violation thereof punished contempt as a of court. suspension “3. The attorney counsellor-at-law, by or removal of an appellate division supreme court, operates suspension as a or removal every court of the state. with due lished livered prescribed “6. supreme ^[*] Before to him diligence ^[*] court to satisfaction personally ^[*] section, served which ^[*] within or without the state or counsellor-at-law is personally, copy ^[*] charges presiding ^[*] the same have been justice charges against ^[*] presented, ^[*] suspended be served or, ^[*] in case it is estab- him that he cannot or removed as upon must ^[*] division of him be de- *45 publication justice may direct, presiding mail, or otherwise as the said being opportunity In all he must be allowed an of heard in his defense. charges any personally, cases manner other than where served attorney application appear, the may an counsellor-at-law so served does attorney presiding justice

be made such to the of or his behalf appellate charges presented supreme division of court to whom the were any year judgment, time within or final one after the rendition good suspension upon removal, upon order of or shown and such cause may just presiding attorney justice, terms as be deemed such such charges. against counsellor-at-law must be allowed to defend such himself justices appellate any judicial department, “The division or a majority them, directing any expenses make order dis- ciplinary necessary peti- proceedings, and the costs and disbursements prosecuting charges, including expense any preliminary tioner in such investigation professional attorney in relation to conduct of an and counsel- lor-at-law, paid by county judicial county to be treasurer of within department, expenses charge upon county. shall be a such prescribed by “7. In addition to the duties seven hundred of the section county law, duty any attorney department, it shall be the district within a designated by justices when appellate supreme so division of the department, majority court in such them, prosecute proceedings or a all suspension for the removal or and counsellors-at-law or said majority justices, or appoint any attorney of them and counsellor-at- preliminary investigation law to conduct proceedings and, during prosecute any disciplinary and to upon investigation or pro- the termination of the or ceedings, may compensation paid fix to be to such and counsel- lor-at-law for compensation chargé the services rendered which shall be a against county specified paid his certificate and shall be thereon. Any petitioner respondent “8. disciplinary or proceeding against in a attorney or section, including counsellor-at-law under this a bar association any corporation or other association, shall have appeals court any a final proceed- order of division in such ings upon questions subject therein, pre- law involved to the limitations scribed . the constitution of this state. objection “9. No appointment shall be taken member of the bar judge to act as referee or proceeding in a under this section ground on the that he is corporation member a bar association or other petitioner association which is the therein.” Appendix page. B next

Appendix B THE RIGHT APPELLATE TO REVIEW IN YORK NEW

A. Professionals Statutory Appellate Trier- Scope Appellate Court Right Right Profession of-Fact Review Review as Attorneys Appellate Appeals facts; Divi- Court of None 1— (Judiciary sion Law none as law ex- (Judiciary 90(8)) cept Law when a Consti- § 90) § tutional issue is the

only question apparently when a Ap- Justice pellate Division dissents Physicians, Regents Appellate Board of questions All Divi- of law 2— Chiropractors, (Education sion, Law Third and De- “substantial Engineers, 6510(3)) partment § evidence” test toas Accountants, (Education facts Law Nurses, and 6510(4)) § all others

covered

Education Law 6500-8208

§ Litigants

B. Civil Appellate Scope Court of Appellate Statutory Trier-of-Fact Right Right Review as of Review as 1— Appellate Court Questions Division law (CPLR 5701(a)) questions of fact

(CPLR 5501(c)) County 2— Court Appellate Questions Division of law (CPLR 5701(a)) questions of fact

(CPLR 5501(c)) Family 3— Court Appellate Questions Division of law and (Family questions Court Act of fact (CPLR 5501(c))

§ HID Surrogate’s 4— Court Questions Division of law (Surrogate’s questions Court of fact 2701) (CPLR Act 5501(c)) § 5—Court of Claims Questions Division of law Third or questions Fourth of fact

Department (Court (Court' Act of Claims 24) 24) of Claims Act § § 6—District Court Questions Term or law (Uni- County questions Court of fact (CPLR

form District 5501(d)) 1701) Act *47 Appellate Scope Appellate Court Right Right

Statutory Review as Trier-of-Fact Review Questions of law and Court, Appellate Division or 7—-Civil questions fact (N.Y.C. City Appellate Term of New York 5501(d)) 1701) (CPLR Court Act Civil § Questions of law Appellate City Term or Courts 8—-Other questions fact County (Uni- Court 5501(d)) (CPLR City form Act Court 1701) § Questions of law and Appellate Term or Court

9—Justice questions (Uni- of fact County Court 5501(d)) (CPLR form Justice Court 1701) Act § Defendants

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