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February 2, 1976

In the Matter of WILLIAM ROBERT KLEIN a/k/a WILLIAM R. KLEIN, an attorney

The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, Chief Judge:

 Pursuant to Rule 5(d) of the General Rules of this court, *fn1" William Robert Klein was disbarred from the Bar of the United States District Court for the Southern District of New York upon the presentation of a copy of a state disbarment order issued by the New York Supreme Court, Appellate Division, Second Judicial Department. Mr. Klein thereafter moved this court for an order vacating its prior order of disbarment. This opinion is occasioned by that motion.

 The issue presented to the court by Mr. Klein's motion is a narrow one: whether an examination of the record of the state proceeding discloses that the procedure "was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process." *fn2" Such a disclosure would preclude this court from following the state determination. *fn3" The court has examined the entire record of the state court proceedings and has considered the arguments presented by Mr. Klein in his papers and in open court. *fn4" Mr. Klein's motion is denied.

 The state disciplinary proceedings against Mr. Klein were commenced on December 16, 1964, by petition and order to show cause. The petition alleged that Mr. Klein was guilty of seven specific acts of misconduct. *fn5" Mr. Klein responded by papers "answering . . . and in bar" of the proceeding which raised various legal arguments but which did not deny any of the acts of misconduct alleged in the petition.

 On June 29, 1965, an order and opinion of the Appellate Division were issued disbarring Mr. Klein from the New York Bar. *fn6" The opinion recites the history of the proceedings to date, that Mr. Klein's papers failed to deny any of the charges raised in the petition, and that his legal objections are without merit. The opinion then concludes:


When an attorney makes baseless written charges against members of the Judiciary and members of the Bar; is guilty of [acts of misconduct listed in the petition], he demonstrates such lack of character and fitness as to require his disbarment. *fn7"

 It should be noted that the first listed basis of the court's conclusion that Mr. Klein should be disbarred -- making baseless written charges against members of the judiciary and of the bar -- was not included in the petition giving notice to Mr. Klein of the charges which were being brought against him.

 The order of disbarment itself, of the same date, recites the history of the case and then, before actually ordering disbarment, states:


Now on reading and filing the petition verified the 16th day of December, 1964, affidavits . . . and the answer of respondent and affidavit . . . and all the papers filed herein . . . and upon the per curiam opinion of this court, dated June 29, 1965 heretofore filed and made a part hereof, and due deliberation having been had thereon:


It is Ordered . . .. *fn8"

 Mr. Klein moved to vacate the order in the Appellate Division stating, inter alia, that he had never received notice of the charge of making baseless written charges. *fn9" His motion was granted to the extent of permitting him to serve an amended answer and referring the matter to a referee for the conducting of hearings and the rendering of a written report. *fn10" The order of disbarment was never vacated.

 Mr. Klein also appealed the original disbarment order and decision to the New York Court of Appeals. That court affirmed the Appellate Division's decree, stating that Mr. Klein had received an opportunity to be heard but had not raised any triable issues. *fn11" The granting in part by the Appellate Division of Mr. Klein's motion, wrote the court, "assured [him] of an additional opportunity to be heard." *fn12" Regarding the question of notice, the court stated that the order of disbarment:


as its recitals demonstrate, was predicated solely on the charges contained in the petition and . . . we have disregarded the intimations in the Appellate Division's opinion that the appellant made "baseless written charges against members of the judiciary and members of the Bar" in view of the fact that the petition does not contain such a charge. *fn13"

 This court notes that the disbarment order, the relevant portions of which have been set forth above, does not indicate that only the charges specified in the petition serve as the basis of the order and does state that the order is based upon and incorporates the opinion of the court.

 The United States Supreme Court denied certiorari. *fn14"

 Hearings were conducted before a referee pursuant to the Appellate Division's decision. After unsuccessfully moving for the disqualification of the referee Mr. Klein absented himself from the hearings even after being advised by the referee that the hearings would be continued in Mr. Klein's absence. *fn15" The referee heard evidence presented ex parte and determined that three and one-half of the seven charges in the petition were supported by the evidence. *fn16" His report was confirmed by the Appellate Division in an opinion which also denied Mr. Klein's renewed motion to vacate the order of disbarment.

 Mr. Klein now contends that the state court order upon which this court's order was predicated is constitutionally defective since (1) it was entered without notice of all of the charges upon which it was based and (2) it was entered without any opportunity to be heard. *fn17"

 Mr. Klein's two grounds can be considered together. His assertion that the original state order apparently was based upon a charge of conduct not included in the petition is correct. He was denied therefore the specific notice which he was guaranteed by federal law. *fn18" Moreover, to the extent that without notice of one charge he was unable to respond to that charge in any manner in which he chose, he was denied an opportunity to be heard at least as to that charge. *fn19" That right also was federally guaranteed. *fn20"

 The question presented to this court is whether subsequent proceedings in the state courts in any way mitigated or repaired the defects in the original order. Mr. Klein argues that even though the Appellate Division allowed him to serve an amended answer and ordered that hearings be conducted that the underlying order itself was never vacated, that that original order is the predicate of the federal disbarment, and that if the original order is defective the federal order must be vacated.

 The court cannot accept Mr. Klein's position. The court does not believe that the Appellate Division's decision to allow an amended answer and to refer the matter for hearings was an empty act and not a good faith attempt to provide Mr. Klein with a full opportunity to meet the then clearly-defined charges against him. It would be a gross elevation of form over substance *fn21" to conclude at this juncture that the state proceeding was so lacking in notice and opportunity to be heard as to require that this court not give effect to the order of disbarment.

 Mr. Klein's motion is denied. In deciding to give effect to the state court proceedings this court is not endorsing the procedures employed by the state courts. All this court decides today is that the state proceedings were not so offensive to due process as to require this court to treat the state disbarment as a nullity.

 David N. Edelstein Chief Judge

 Dated: New York, N. Y. Feb. 2, 1976

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