Bar Ass'n of Erie County v. Gelman

• Citation: 285 N.Y.S.2d 691
• Parties: The BAR ASSOCIATION OF ERIE COUNTY, Petitioner, v. Leon GELMAN, Respondent.
• Decision Date: 08 May 1967
• Court: New York Supreme Court — Appellate Division

Page 691

285 N.Y.S.2d 691

The BAR ASSOCIATION OF ERIE COUNTY, Petitioner, v. Leon GELMAN, Respondent.

Supreme Court, Appellate Division, Fourth Department.

May 8, 1967.

Paul I. Birzon, Buffalo, of counsel, for respondent.

John B. Walsh, Buffalo, of counsel, for petitioner.

Before WILLIAMS, P.J., and BASTOW, GOLDMAN, HENRY, and DEL VECCHIO, JJ.

MEMORANDUM.

The respondent herein having moved before this Court for an order dismissing the petition, verified May 10, 1965, vacating the order of this Court entered June 25, 1965, and restoring respondent in his office as an attorney, or, in the alternative, directing that a hearing be conducted, and for such other and further relief as justice may require,

Now, upon reading and filing the affidavit of Leon Gelman, sworn to the 27th day of March, 1967, the notice of said motion, with proof of due service thereof upon the attorney for the petitioner, and the opposing affidavit of John B. Walsh, sworn to the 5th day of April, 1967, and after hearing Mr. Paul Ivan Birzon, of counsel for the respondent, and Mr. John B. Walsh, of counsel for the petitioner, and due deliberation having been had thereon,

It is hereby ordered, that said motion be, and the same hereby is denied in all respects.

Respondent seeks to dismiss the petition herein on the ground that it is predicated on testimony and exhibits which he was induced to give to petitioner on its preliminary investigation of his professional conduct, by his fear of the consequences of not doing so. He does not claim that his fear was caused by any act of petitioner but says that it resulted from his cognizance of a judicial decision which has since been overruled. He feared that assertion of his privilege against self-incrimination would result in his disbarment under the rule laid down in Matter of Cohen (9 A.D.2d 436, 195 N.Y.S.2d 990, affd. 7 N.Y.2d 448, 199 N.Y.S.2d 658, affd. sub nom. Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156) until that case was overruled by Spevack v. Klein (385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574) on January 16, 1967.

In our opinion the effect of a court decision on the mind of a lawyer is not a form of compulsion which he may later invoke to prevent use of prior testimony or statements which he then seeks to disavow. 'The protection of the individual under the Fourteenth Amendment against coerced confessions prohibits use in subsequent criminal proceedings of confessions obtained under the threat of removal...