Isserman, In re, s. D--18

• Decision Date: 24 March 1952
• Docket Number: 1950,Nos. D--18,1951,D--12,s. D--18
• Citation: 87 A.2d 903,9 N.J. 269
• Parties: In re ISSERMAN.
• Court: New Jersey Supreme Court

Page 269

9 N.J. 269

87 A.2d 903

In re ISSERMAN.

Nos. D--18, 1950, D--12, 1951.

Supreme Court of New Jersey.

Argued June 18, 1951 and March 17, 1952.

Decided March 24, 1952.

Frederick C. Vonhof, Newark, for the order.

Milton M. Unger, Newark, for respondent.

The opinion of the court was delivered by

VANDERBILT, C.J.

The respondent, Abraham J. Isserman, was admitted as an attorney-at-law of this State in 1923 and as a counsellor in 1926. On October 25, 1949, Isserman was noticed to appear before the Ethics Committee of the Essex County Bar Association on November 3, 1949. He did not appear personally but was represented by counsel who offered various documents in evidence. On November 7, 1949, the Ethics Committee of the Essex County Bar Association presented to this court for disciplinary action the conviction of the respondent on October 14, 1949, United States v. Sacher, 9 F.R.D. 394 (D.C., 1949), for contemptuous conduct during the course of the trial of 11 communist leaders in the United States District Court for the Southern District of New York, see United States v. Foster, affirmed on appeal sub nom United States v. Dennis, 183 F.2d 201 (C.C.A.2, 1950); 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). On April 24, 1950, following the affirmance by the United States Court of Appeals for the Second Circuit of the respondent's conviction on all but one of the seven specifications with which he was charged, United States v. Sacher, 182 F.2d 416 (1950), we issued an order to show cause returnable May 8, 1950. On the return date, because of an application then pending for a writ of certiorari to the United States Supreme Court, we continued without date argument on the order to show cause. On June 7, 1951, after the denial of review by the United States Supreme Court, Sacher v. United States, 341 U.S. 952, 71 S.Ct. 1010, 95 L.Ed. 1374 (1951), a new order to show cause was issued returnable June 18, 1951, and the matter was fully argued on the return day. Immediately thereafter and before the matter could be decided by us it was represented to us by the respondent that an application for reargument had been made to the United States Supreme Court. Accordingly, on June 25, 1951, we continued the rule to show cause until the application for reargument should have been disposed of, and pending such disposition suspended the respondent from the practice of law in this State. On January 3, 1952, the respondent was suspended for two years from the practice of law before the United States District Court for the Southern District of New York as the result of disciplinary proceedings prosecuted before that court by the Association of the Bar of the City of New York and the New York County Lawyers Association, In re Sacher and Isserman (not officially reported). On October 22, 1951, as a result of the petition for reargument, the United States Supreme Court vacated its previous order denying certiorari and granted a limited review, Sacher v. United States, 342 U.S. 858, 72 S.Ct. 84 (1951), and on March 10, 1952, it rendered its decision affirming the respondent's conviction, Sacher v. United States, 72 S.Ct. 451 (1952). Following this action by the United States Supreme Court and in accordance with our order of June 25, 1951, our order to show cause was noticed for disposition on March 17, 1952. At that time counsel for the respondent presented to the court and opposing counsel an 11-page document entitled 'Amended and Supplemental Answer' and copies of the opinion of the United States Supreme Court handed down on March 10, 1952. Notwithstanding the fact that the respondent had been given an opportunity to be heard before the Ethics Committee of the Essex County Bar Association on November 3, 1949, but had not availed himself of it, contenting himself with appearing by counsel who presented evidence, and notwithstanding that the matter was argued at length before this court on June 18, 1951, the respondent, through counsel, insisted on 'an adequate opportunity to be heard and to present evidence on other matters in his defense on the issues before the court in this proceeding.'

It is not necessary to recount here the precise nature of the respondent's contemptuous acts for which he has been convicted, for they are detailed in the opinion of the Court of Appeals affirming his conviction and are further commented on by the United States Supreme Court in its decision of March 10, 1952. Suffice it to say that Judge Harold R. Medina, before whom the case of United States v. Foster was tried and by whom the respondent was convicted, found that the conduct of the respondent and his associate defense counsel:

'* * * constituted a deliberate and wilful attack upon the administration of justice, an attempt to sabotage the functioning of the Federal judicial system, and misconduct of so grave a character as to make the mere imposition of fines a futile gesture and a wholly insufficient punishment.' (182 F.2d 430.)

He found, and Judge Augustus N. Hand of the Court of Appeals concurred in his finding, that they:

'* * * joined in a wilful, deliberate, and concerted effort to delay and obstruct the trial * * * for the purpose of causing such disorder and confusion as would prevent a verdict by a jury on the issues raised by the indictment; and for the purpose of bringing the Court and the entire Federal judicial system into general discredit and disrepute, by endeavoring to divert the attention of the Court and jury from the serious charge against their clients * * *.' (182 F.2d 431.)

Judge Jerome N. Frank of the Court of Appeals characterized the respondent's acts as:

'* * * outrageous conduct--conduct of a kind which no lawyer owes his client, which cannot ever be justified, and which was never employed by those advocates, for minorities of for the unpopular, whose courage has made lawyerdom proud. The acts of the lawyers for the defendants in this trial can make no sensible man proud.' (182 F.2d 454.)

Judge Charles E. Clark of the Court of Appeals, although he dissented from the affirmance of the respondent's contempt convictions for procedural reasons, labeled the conduct of the respondent and his associates as 'abominable.' Mr. Justice Jackson, speaking for the majority of the United States Supreme Court, which was concerned only with the procedural aspects of the respondent's conviction and not with the fact of his guilt, described the conduct of the respondent and his associate defense counsel as follows:

'The nature of the deportment was not such as merely to offend personal sensitivities of the judge, but it prejudiced the expeditious, orderly and dispassionate conduct of the trial. * * *

'Their conduct has been condemned by every judge who has examined this record under a duty to review the facts. * * *' (72 S.Ct. 453.)

Conduct of such a nature as to be punished by conviction for contempt and to be so characterized by the distinguished judges who have had occasion to review it most clearly constitutes a violation of the oaths which the respondent took as an attorney and counsellor of this State to 'faithfully and honestly demean myself in the practice', R.S. 2:20--1, N.J.S.A., and of the Canons of Professional Ethics adopted by the American Bar Association, which by Rule 1:7--6 govern the conduct of the members of the bar of this State. Among the canons for which the respondent by his contemptuous conduct has shown utter disregard are Canon No. 1 providing that 'It is the duty of the lawyer to maintain towards the Courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance'; Canon 29 requiring a lawyer to 'strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice'; and Canon 32 admonishing every lawyer against rendering 'any service or advice involving disloyalty to the law whose ministers we are, or disrespect to the judicial office, which we are bound to uphold' and warning that such improper service or advice 'invites and merits stern and just condemnation.'

The respondent advances a variety of arguments as to why he should not be disbarred or otherwise disciplined. First, he contends that his conviction for contempt does not constitute grounds for disciplinary proceedings. He claims hat the power to punish for contempt and the power to disbar are separate and distinct and that to ground disciplinary action upon a contempt of court is counter to the holding of the United States Supreme Court in the case of Ex Parte James S. Robinson, 19 Wall. 513, 22 L.Ed. 205 (1874), which has never been overruled. We recognize the difference between the power to punish for contempt and the power to discipline, but clearly the exercise of the one does not exclude the exercise of the other, nor do we consider that the cited case so holds. All that the court there held was that before an attorney is disbarred he is entitled to be heard, an opportunity which the respondent here was afforded both before the Ethics Committee in Essex County and before this court. In the more recent case of In re Schofield, 362 Pa. 201, 66 A.2d 675 (Pa. 1949), the assertion was likewise made that the court could not discipline an attorney for misconduct at a trial for which he was subject to punishment for contempt. In answer to this argument the Supreme Court of Pennsylvania held:

'The fact that professional misconduct may also be a contempt does not bring disciplinary...