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Anonymous v. Association of Bar

decided: April 3, 1975.

ANONYMOUS, AN ATTORNEY ADMITTED TO PRACTICE IN THE STATE OF NEW YORK, PLAINTIFF-APPELLANT,
v.
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK AND JOHN G. BONOMI, CHIEF COUNSEL, COMMITTEE ON GRIEVANCES OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, DEFENDANTS-APPELLEES



Appeal from an order of the United States District Court for the Southern District of New York, Hon. Thomas P. Griesa, Judge, denying plaintiff's motion for a preliminary injunction and granting defendants' motion to dismiss the complaint, which sought injunctive and declaratory relief against the use by the defendants in disciplinary proceedings commenced by them against the plaintiff attorney of grand jury testimony compelled from the plaintiff under a grant of immunity. Affirmed.

Anderson, Mulligan and Van Graafeiland, Circuit Judges.

Author: Mulligan

MULLIGAN, Circuit Judge:

The plaintiff is an attorney at law admitted to practice in the State of New York. On October 18, 1968, he was called to testify before a New York County grand jury which was then investigating possible undue influence upon the New York City Planning Commission. Before he testified he was granted transactional immunity,*fn1 and he thereafter testified on October 18, November 15 and November 21, 1968. On February 4, 1971, a justice of the Supreme Court, New York County, issued an order which authorized the District Attorney of New York County to release the minutes of the plaintiff's testimony to the Grievance Committee of the defendant Association of the Bar of the City of New York (Committee), and, pursuant to the order, some 1500 pages of minutes were delivered to the Committee in March, 1971. On January 11, 1973, the Committee invited the plaintiff to appear and discuss his grand jury testimony in connection with a review by the Committee of the conduct of certain attorneys who had appeared before the grand jury in 1968. Plaintiff did not appear before the Committee but rather submitted through counsel, on April 26, 1973, a twenty-five page statement which, in substance, provided all the information contained in his earlier grand jury testimony. On May 31, 1973, counsel for the Committee instituted a disciplinary proceeding against the plaintiff by serving on him a notice containing the charge made against him and the alleged facts upon which it was based. On June 13, 1973, plaintiff submitted an answer substantially admitting the facts set forth by counsel for the Committee but denying knowledge of any illegal activity which may have taken place with regard to the Planning Commission.

A hearing was held before a panel of the Committee on June 21, 1973, and the plaintiff appeared with counsel. The grand jury minutes containing plaintiff's testimony were admitted in evidence without objection by plaintiff's then counsel. The panel sustained the charges and made the recommendation that further disciplinary proceedings be brought in the Appellate Division, First Department, of the New York Supreme Court. Thereafter, plaintiff obtained new counsel, who requested a new hearing on the ground, inter alia, that the use of the immunized grand jury minutes violated plaintiff's constitutional rights under the Fifth Amendment. A new hearing was granted by the Committee, and, on April 16, 1974, a new charge letter was sent to the plaintiff; the hearing was held on May 7, 1974 before a new panel of the Committee. The grand jury minutes were again offered, and, this time over the objection of plaintiff's counsel, were admitted into evidence. The hearing was then adjourned until June 4, 1974. On that date, plaintiff commenced an action in the United States District Court for the Southern District of New York for declaratory and injunctive relief under 28 U.S.C. §§ 1331, 1343, 2201 and 2202.

Plaintiff moved by order to show cause for a preliminary injunction and the defendants made a cross-motion for judgment dismissing the complaint for failure to state a claim on which relief could be granted. Both motions were heard on July 3, 1974 before Hon. Thomas P. Griesa, United States District Judge, who handed down an opinion and order dated July 31, 1974, which denied the plaintiff's motion and granted the defendants' cross-motion dismissing the complaint. This appeal followed. Further proceedings by defendants have been stayed pending the determination of the appeal by this court.

I

The court below did not reach the constitutional issue raised by the plaintiff (the impropriety of defendants' use of plaintiff's compelled testimony in disciplinary proceedings against him) but based its determination on the ground of abstention, relying upon Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971) and the application of its doctrine by this court in Erdmann v. Stevens, 458 F.2d 1205 (2d Cir.), cert. denied, 409 U.S. 889, 34 L. Ed. 2d 147, 93 S. Ct. 126 (1972). In Erdmann, the justices of the Appellate Division, First Department, of the State of New York had served upon the plaintiff a petition and order to show cause charging him with ethical violations arising from statements attributed to him in an article in which he allegedly attacked, in colorful terms, the competence and the character of the state trial and appellate courts. Erdmann brought an action in the United States District Court for the Southern District of New York, urging that the proceeding brought by the justices was for the purpose of discouraging and preventing his exercise of First Amendment rights. This court unanimously held that the abstention doctrine of Younger v. Harris, supra, was applicable and required dismissal of the complaint, with both the majority opinion of Judge Mansfield (writing also for Judge Mulligan) and the concurring opinion of Judge Lumbard emphasizing our reluctance, and indeed refusal, to intrude in the application of standards of professional conduct and moral character by state courts to their court officers. Thus, Judge Mansfield observed:

The relationship between a court and those practicing before it is a delicate one. It would appear axiomatic that the effective functioning of any court depends upon its ability to command respect not only from those licensed to practice before it but also from the public at large. It requires little vision to appreciate that if a state court were subject to the supervisory intervention of a federal overseer at the threshold of the court's initiation of a disciplinary proceeding against its own officer, the state judiciary might suffer an unfair and unnecessary blow to its integrity and effectiveness. 458 F.2d at 1210.

Judge Lumbard also stated:

While these principles [ Younger abstention] were stated in cases involving state criminal proceedings, I believe that they apply with equal force to proceedings regarding the conduct of members of the state bar. The state "has a legitimate interest in determining whether [an individual] has the qualities of character and the professional competence requisite to the practice of law." Baird v. State Bar of Arizona, 401 U.S. 1, 7, 91 S. Ct. 702, 706, 27 L. Ed. 2d 639 (1971). Indeed the state's responsibility in these matters is primary. A lawyer to practice anywhere in the United States must first be admitted to the bar of one of the states. In New York, as in all of the states, the proper functioning of the judicial system depends upon the competence and integrity of the members of the bar and their compliance with appropriate standards of professional responsibility. 458 F.2d at 1213.

Appellant's principal assault upon Erdmann is founded upon the contention that Younger abstention does not properly apply since the pending disciplinary proceedings are civil in nature, although appellant somewhat anomalously asserts at the same time that they are criminal with respect to the vesting of Fifth Amendment privileges. Appellant claims that Erdmann has been eroded by Judge Smith's comment in his opinion for this court in Blouin v. Dembitz, 489 F.2d 488, 490-91 (1973) that Younger abstention should be limited to cases involving traditional criminal proceedings until the Supreme Court instructs otherwise. The opinion did not cite Erdmann and of course did not purport to override it. More significantly, however, the Supreme Court has recently instructed otherwise and has explicitly extended the Younger doctrine so that its application does not depend upon the simplistic civil-criminal dichotomy.

In Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482, 43 U.S.L.W. 4379 (1975), a sheriff and a prosecuting attorney of an Ohio county instituted a proceeding under a state statute which provided that a place which exhibits obscene films is a nuisance; the statute mandated closure for up to a year as well as authorizing preliminary injunctive relief, the sale of all personal property used in conducting the nuisance and the release of the closure order only upon the satisfaction of certain conditions. The state court determined that the theatre in question had exhibited obscene films and ordered its closure for a year. Appellee, Pursue, Ltd., successor to the leasehold to the theatre, rather than appealing the state court order filed suit based on 42 U.S.C. § 1983 in the federal district court, seeking a declaration that the Ohio statute was unconstitutional and also requesting injunctive relief. A three-judge district court concluded that the statute constituted an overly broad prior restraint on First Amendment rights and issued permanent injunctive relief.

On direct appeal the Supreme Court vacated the lower court decision, holding Younger applicable. Mr. Justice Rehnquist noted in his opinion for the Court that, while Younger did involve pending criminal ...


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