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IN RE KLEIN

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 ...


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