In re Chopak, 180

• Citation: 160 F.2d 886
• Decision Date: 02 June 1947
• Docket Number: Docket 20481.,No. 180,180
• Parties: In re CHOPAK.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

160 F.2d 886 (1947)

In re CHOPAK.

No. 180, Docket 20481.

Circuit Court of Appeals, Second Circuit.

March 18, 1947.

Writ of Certiorari Denied June 2, 1947.

Jules Chopak, pro se, appellant.

J. Vincent Keogh, U. S. Atty., of New York City (Vine H. Smith, Asst. U. S. Atty., of Brooklyn, N. Y., and Edward S. Szukelewicz, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before SWAN, CHASE, and CLARK, Circuit Judges.

Writ of Certiorari Denied June 2, 1947. See 67 S.Ct. 1516.

SWAN, Circuit Judge.

This proceeding was heard before four of the District Judges after due notice to the appellant to show cause why he should not be disciplined for unprofessional conduct and conduct prejudicial to the administration of justice, contrary to Rule 3 of the Rules of the District Court for the Eastern District. The facts are not in dispute; they are set forth at length in the opinion below, 66 F.Supp. 265, and need not be here repeated. In summary, it may be said that one charge was based on an insulting letter addressed to one of the judges^* of the Eastern District and protesting the form of an order which had been submitted for signature in a matter pending before him, and a second charge was based on a letter written to the appellant's client in which, without the slightest foundation, he ascribed prejudice to another of the judges;^* he explained in testifying before a referee that the letter to his client meant that the judge would be prejudiced against him because he was a Jew and against his client because he was a Negro. The first letter above mentioned was the sequel to an order made on January 22, 1946, referring to a referee a motion to take testimony concerning the proper disposition of funds which had been paid to the Clerk of the District Court in satisfaction of a judgment obtained by the appellant's client and with respect to which the appellant claimed a contingent attorney's fee which the referee sustained. Whether or not this order of reference was correct or, as the appellant contends, was in violation of Federal Rules of Civil Procedure, rule 53, 28 U.S.C.A. following section 723c, is not before us and we express no opinion upon it. Even if assumed to be wrong, the order could not serve as a justification for the appellant's letter, which passed all bounds of propriety regardless of any supposed provocation arising from his belief that the order was erroneous.

In response to the show cause order the appellant appeared by attorney but not in person. After being served with a formal order directing him to appear personally at a hearing set for June 3, 1946, he contented himself with sending a letter asking the court not to assemble "for the reason that I do not expect to appear for further hearing"; and he did not appear. He also wrote a second letter in which he stated that he had "visited voluntarily" upon himself the "punishment" of withdrawing two cases which had been pending in the Eastern District, and had resolved never again to appear before any of the judges of that court. However, the court was informed by Mr. Fay, who appeared on June 3rd not as appellant's attorney but as his friend and adviser, that this letter was not intended by the appellant as a resignation from the Bar of the Court. The Court's opinion, after considering the facts in detail, found that

"The record as a whole demonstrates a complete lack of understanding, on the part of the respondent, of his obligations as a member of the Bar of this Court toward the institution in which he conducts a client's cause."

The order suspending the appellant from practice in the District Court for the Eastern District of New York is an appealable order. In re Schachne, 2 Cir., 87 F.2d 887. It cannot be doubted that the above quoted finding was fully justified; nor can it be doubted that the appellant's conduct required disciplinary action. What measure of discipline should be meted out rested in the sound discretion of the District Court; and, as stated by Chief Justice Marshall many years ago, an appellate tribunal "will always feel the delicacy of interposing its authority, and would do so only in a plain case." Ex parte Burr, 9 Wheat. 529, 530, 6 L.Ed. 152. In the case at bar we can see no abuse of discretion in the discipline imposed. The Court gave the matter very careful consideration and took into consideration, as it properly might, the fact that the appellant had been previously twice disciplined, once by the same Court and once by the Court of Customs and Patent Appeals. The order is affirmed.

CLARK, Circuit Judge (dissenting).

This case has given me much concern. Emphatically and eloquently the Supreme Court has safeguarded the right, even the duty, of free general and public criticism of the courts against repression by fines for contempt. Pennekamp v. Florida, 328 U. S. 331, 66 S.Ct. 1028; Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346. This case really presents the same issue, albeit without the same publicity (since the criticism was made privately to the judge himself), but with greater severity of punishment (since appellant lost his professional standing for three years). It would be pleasant to feel justified in remaining silent. Even my partial and limited criticism of the conduct of the proceedings below is likely to be misunderstood and taken for more than I intend by judges whom I respect and with whom I have worked happily. Nevertheless the inexorable machinery of judicial review has brought the matter to me; and a firmly held conviction that the administration of justice cannot merely force, but must also justify, respect constrains me to express my concern thus publicly.

In what I shall have to say, I do not propose to defend the appellant's conduct. As I shall point out, I think he did...