In re Schlesinger

Decision Date18 July 1961
PartiesIn the Matter of Hymen SCHLESINGER, Esq., a Member of the Bar of This Court (Allegheny County).
CourtPennsylvania Supreme Court

Rehearing Denied July 31, 1961.

Richard B Tucker, Jr., Charles F. C. Arensberg, John K. Tabor, John G. Buchanan, Thomas N. Griggs, Louis C Glasso, James Craig Kuhn, Jr., Louis Caplan, Pittsburgh, for appellant.

Robert A. Rundle, Francis Taptich, Pittsburgh, for appellee.



Hymen Schlesinger, the appellant, was admitted to the bar of Allegheny County on September 24, 1927, and, continuously thereafter engaged in the practice of law in that county with offices in the City of Pittsburgh. On May 26, 1950, the Committee on Offenses of the Court of Common Pleas of Allegheny County lodged with him a written complaint charging him with 'professional misconduct.' As a result of hearings on the complaint held by a Subcommittee of the Committee on Offenses, the Court of Common Pleas of Allegheny County ten years later (viz., on May 10, 1960) entered an order disbarring Schlesinger on the basis of the report and recommendation of the Committee on Offenses. The principal charge against the respondent was that he had violated his oath as an attorney by being a member of the Communist Party. No charge was made nor proof adduced that he had ever been guilty of unprofessional conduct in his relations with any of his clients or with the courts. Upon his appeal to this court from the order of disbarment, we entered an order on May 23 1960, upon his petition for a supersedeas, suspending the order of disbarment until final disposition of the appeal, which is now before us for that purpose.

A recital of the proceedings, somewhat in detail, is essential to a proper understanding and consideration of the important questions presented by the record. Moreover, it is our bounden duty under Section 1 of the Act of May 19, 1879, P.L. 66, 17 P.S. § 1663, to review the case de novo.

The complaint filed with Schlesinger by the Committee on Offenses on May 26, 1950, specifically charged him with 'professional misconduct' (a) '[b]y being a member of the Communist Party, one of the major aims and purposes of which party is the overthrow of the Government of the United States by force and violence', (b) '[b]y acting as a party functionary in connection with the activities of the Communist Party in the City of Pittsburgh, Pennsylvania, and in that capacity assisting in the formulation and the carrying out of party policies, especially with reference to the organization and the control of basic industries in the Pittsburgh district,' and (c) '[b]y actively advocating and supporting the aforesaid aim and purpose of the Communist Party to overthrow the Government of the United States by force and violence in derogation and in violation of the oath taken by Respondent upon his becoming a member of the bar of the Court of Common Pleas of Allegheny County, Pennsylvania.'

A motion to dismiss the complaint was filed by the respondent.

On September 29, 1950, the Committee on Offenses appointed a Subcommittee of three of its own members to hear argument on the motion to dismiss the complaint and to make a report to the Committee. Thereafter, the Subcommittee recommended that the motion to dismiss be denied and that the respondent be directed to file an answer to the complaint. This recommendation was in due course approved by the Committee. On June 6, 1951, a request for a bill of particulars was filed with the Committee of Offenses by the respondent. This request was denied. The respondent then challenged for cause each and every member of the Committee on Offenses because, inter alia, of their conflicting capacities. This challenge was also denied.

Before a date for a hearing on the complaint had been fixed by the Subcommittee, an information was filed by one Matt Cvetic with a justice of the peace in the county charging the respondent with a violation of the Pennsylvania Sedition Act of 1951, on which charge the respondent was held for court. As the allegations of Cvetic in his information against Schlesinger were similar to the charges in the Committee's complaint against him, the Subcommittee took no action with respect to a hearing on the complaint while Cvetic's criminal prosecution of the respondent was pending. The criminal proceeding was quashed on December 11, 1951, by three judges of the Court of Common Pleas, sitting en banc, for the stated reasons that 'our judicial criminal procedure was ignored if not flaunted,' that 'the defendant was denied his state constitutional and statutory rights and protection,' and that 'the admitted activities or nonactivities following his arrest denied to the defendant due process of law and equal protection of the law under the 14th Amendment of the United States Constitution.'

Nothing further, in respect of the Committee's complaint, appears to have been done following the quashing on December 11, 1951, of the criminal proceeding instituted by Cvetic until May 1, 1953, when the Subcommittee gave notice to the respondent of a hearing on the complaint. The hearing was still further delayed, however, for about eight months because of the respondent's unsuccessful attempts to enlist at that time the services of counsel in his behalf. It is a lamentable commentary, but nonetheless true, that, in the existing frame of the public mind, a lawyer, who undertakes voluntarily the legal representation of a person charged with being, or even pointed at (in J'accuse fashion) as, a Communist, runs the risk of a disruption of his law practice and the impairment of his own professional reputation.

In any event, hearings on the Committee's complaint were begun and proceeded with before the Subcommittee on various dates in January, February and August of 1954, the respondent then being unrepresented by counsel. Further hearings were held on February 9, 17 and 22, and March 22, 1955, for the purpose of receiving testimony of witnesses produced by respondent, who was still without counsel other than himself.

After the final hearing on March 22, 1955, and as a result of respondent's supplication of the Allegheny County Bar Association, among other civic or public bodies, a group of attorneys agreed to act as counsel for respondent under appointment by the Court of Common Pleas; and, on June 1, 1956, eight capable and highly regarded lawyers, consisting of four seniors and four juniors, were appointed by the Court of Common Pleas to represent the respondent. Since then, the services of these attorneys in their faithful and zealous representation of their client, including their able brief and oral argument in this court, have been in the finest traditions of the profession, e. g., that legal representation shall not be denied anyone called to answer a charge against himself in an American court of justice.

Summations and oral argument on the basis of the testimony previously adduced at the hearing before the Subcommittee were made before that body on September 22, 1956, by counsel for the Committee and by respondent's lately appointed counsel, and briefs were filed. Thereafter, the Subcommittee filed its report finding that the respondent was a member and functionary of the Communist Party and concluded therefrom that he had been guilty of professional misconduct 'in that he has violated the oath administered to him at the time of his admission to the Bar.' The Subcommittee accordingly recommended that respondent be disbarred. On April 15, 1957, the Committee on Offenses adopted and filed in the Court of Common Pleas the report and recommendation of the Subcommittee recommending the respondent's disbarment.

Exceptions to the report and recommendation were filed by counsel on behalf of the respondent. These exceptions were argued before a court en banc, consisting of three judges, of the Court of Common Pleas of Allegheny County, on December 18, 1957. Two and a half years later, viz., May 3, 1960, the court en banc (one member having died in the meantime) filed an opinion dismissing respondent's exceptions and recommending to the Board of Judges of the Court of Common Pleas (consisting of sixteen members) that the respondent be disbarred, and on May 10, 1960, the Board of Judges adopted the recommendation of the court en banc and entered the order disbarring Schlesinger, which is the subject of the present appeal.

The Subcommittee had opened its case at the first hearing by introducing in evidence the oath, which respondent took upon his admission to the bar, as follows: 'You do solemnly swear that you will support the Constitution of the United States and the Constitution of this Commonwealth and that you will behave yourself in the office of attorney within this court to the best of your learning and ability, and with all due fidelity as well to the court as to your client, that you will use no falsehood nor delay any person's cause for lucre or malice and that as you shall answer to God at the last great day.'

The Committee then called the respondent, who was unrepresented by counsel, as for cross-examination, but, upon his objection that it was premature to require him to testify when no case against him had been developed, the Committee deferred taking his testimony until after its witnesses, viz., George Dietze, Joseph Mazzei, Mary Mazzei and Matt Cvetic, had been called to testify. These witnesses were the only persons produced by the Committee to support the charges of the complaint.

Subsequent to the hearing, the veracity of one of these witnesses, Joseph Mazzei, was 'wholly discredited' by disclosures of the...

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