Kahn, In re

• Decision Date: 13 January 1972
• Citation: 38 A.D.2d 115,328 N.Y.S.2d 87
• Parties: In the Matter of Frances KAHN, An Attorney.
• Court: New York Supreme Court — Appellate Division

Page 87

328 N.Y.S.2d 87

38 A.D.2d 115

In the Matter of Frances KAHN, An Attorney.

Supreme Court, Appellate Division, First Department.

Jan. 13, 1972.

John G. Bonomi, New York City, of counsel (Patrick J. Moynihan, New York City, with him on the brief), for petitioner The Assn. of the Bar of the City of New York.

Frances Kahn (Armende Lesser, New York City, with her on the brief), pro se.

Before CAPOZZOLI, J.P., and MARKEWICH, MURPHY, STEUER and EAGER, JJ.

PER CURIAM:

In this disciplinary proceeding, respondent has moved to confirm the report of the Referee as to the charges against her and to vacate the outstanding order of suspension of respondent, thus in effect reinstating her to the Bar. Petitioner has cross-moved to disaffirm those portions of the report wherein Charges I and III against respondent are found not to be sustained, to confirm that portion which finds Charge II to be sustained, to adjudge respondent guilty of professional misconduct, and to impose appropriate discipline.

History and Prior Proceedings

Respondent was admitted to practice in the First Judicial Department on March 31, 1952. She was convicted, after trial, in the United States District Court, Southern District of New York, in 1966 of conspiracy to obstruct justice, in violation of several sections of the United States Code, Title 18. The conviction was affirmed in the same year (2 Cir., 366 F.2d 259) and she then commenced to serve a sentence of two years in the Federal Reformatory for Women. On July 20, 1967, on petitioner's application, respondent was suspended from practice until further order (28 A.D.2d 846); the order was served by mail at the prison wherein she was confined, and, after her release in 1968, an unsuccessful attempt was made to ascertain her whereabouts so that a disciplinary hearing might be held. After an undefended hearing, she was disbarred (32 A.D.2d 360, 302 N.Y.S.2d 54), but she thereafter appeared and indicated a desire to defend, presenting reasons for earlier failure to appear which, accepted by the court, resulted in vacatur of the disbarment order and re-referral to the Referee, the suspension remaining in effect. The Referee has completed the hearing and submitted his supplemental report to which the motion and cross motion are directed.

The Charges and the Answer

I

Charge I alleged respondent's conviction on March 30, 1966 of the crime of conspiracy with Israel Schawartzberg and Vincent Pacelli, to influence and bribe a witness, Charles Hedges, in connection with testimony Hedges was to give before a Federal Grand Jury respecting Pacelli, to obstruct and impede the due administration of justice thereby, and to suborn perjury, in violation of sections 1503 and 1622, Title 18, United States Code, and her consequent sentence to two years in prison. The answer admitted these facts, but asserted innocence of the crime charged.

II

Charge II alleged respondent's failure to uphold the honor and dignity of the profession by hiring, as legal secretary and law clerk, Israel Schawartzberg, theretofore convicted twice of felony and also of several misdemeanors, and by a court martial, and who had been released from prison shortly before the hiring, and that she had permitted him to participate actively in the conduct of her legal practice and in the operation of her law office. The answer admitted these facts, except that she denied Schawartzberg's active participation in her practice, claiming that his performance was limited to isolated instances.

III

Charge III alleged respondent's failure to guard the Bar against admission to the profession of a candidate, Schawartzberg, unfit and unqualified because of deficiency in moral character and education, in that she filed a certificate of commencement of clerkship in her law office to qualify him for admission to the Bar. The facts were admitted in the answer, but respondent asserted that, during his employment with her prior to filing of the certificate, Schawartzberg had been completely rehabilitated.

The Referee's Report

In sum, the report exculpates respondent outright as to Charges I and III and, though Charge II was found to have been established, it was minimized as professional misconduct.

Charge I was sustained as to the fact of conviction in the District Court, but, 'to the extent that it alleges that respondent's conduct was 'in violation of Section 90 of the Judiciary Law,' it was . . . not established.' Charge II was found to have been established, but only to the extent that it involved the interviewing of witnesses in the manner practiced by respondent and her employee. Charge III was found not established. We bear in mind that the Referee saw and heard those witnesses who appeared before him (Matter of Michaelson, 283 App.Div. 281, 282, 127 N.Y.S.2d 437, 438), and that his opinion should have--and we have given it--serious consideration (Matter of Gondelman, 258 App.Div. 1085, 1086, 18 N.Y.S.2d 52, 53). However, we disaffirm the report as to Charges I and III for the reasons hereinafter set forth.

I

The indictment in the United States District Court charged respondent with having conspired with her clerk, Schawartzberg, and with Pacelli, to interfere with, obstruct and impede testimony to be given by Charles Hedges before a Grand Jury concerning Pacelli's activities in connection with narcotics. She was also charged with the related substantive count, of which she was acquitted. Hedges was in jail on unrelated matters, where respondent visited him several times as his attorney. Hedges and his wife testified that respondent made several efforts to bribe Hedges and to persuade him not to harm Pacelli by his testimony and, particularly, to move dates of activities participated in by Pacelli earlier in time so as to afford the latter the protection of the Statute of Limitations. Respondent testified that there had never been such a participation or arrangement by her, thus setting up an issue of credibility as between her and the Hedges couple, resolved by the jury against her, and she was convicted of conspiracy. Only Pacelli, of the three, was convicted of the substantive count as well as of conspiracy. Prior to trial, she had moved for a severance, fearing that she would be unable to call Schawartzberg as her witness to exculpate her. She had also moved (United States v. Kahn, D.C., 251 F.Supp. 702) for suppression of certain tapes made by Charles Hedges in his cell--he had been 'wired' by the Federal authorities, and she, suspecting the possibility of eavesdropping, had loudly played a small radio on each visit. The tapes, though she was given access to them, were not used at the trial. Both motions were denied, and were, as intermediate motions, considered and the rulings not disturbed on appeal.

The Referee permitted respondent broad latitude in presenting her case, basing his determination so to do, as the report sets forth at length, upon his reading of Matter of Donegan, 256 App.Div. 535, 10 N.Y.S.2d 866; reversed and remanded 282 N.Y. 285, 26 N.E.2d 260 and 282 N.Y. 646, 26 N.E.2d 800; on remand 265 App.Div. 774, 41 N.Y.S.2d 37; aff'd no op. 294 N.Y. 704, 61 N.E.2d 447 and Matter of Keogh, 25 A.D.2d 499, 267 N.Y.S.2d 87; modified 17 N.Y.2d 479, 266 N.Y.S.2d 984, 214 N.E.2d 163. The thrust of the holding, made over petitioner's objection, was that respondent, not being subject to automatic disbarment because of her conviction for conspiracy to obstruct justice and suborn perjury, a Federal felony, amounting in counterpart to a misdemeanor under New York law (sections 105.00, 105.05, Penal Law; section 580, former Penal Law), was entitled at the hearing to the equivalent of a complete new trial of the Federal case before the Referee as part of a comprehensive investigation of fitenss to remain a member of the Bar. So reads Matter of Donegan, 265 App.Div. 774, 777, 41 N.Y.S.2d 37, 39, and Matter of Keogh, 17 N.Y.2d 479, 481, 266 N.Y.S.2d 984, 985, 214 N.E.2d 163, 164 appears to enlarge the possible scope of that inquiry to whatever the hearing officer, subject to the Appellate Division's review, deems relevant. There is no need here to reach the question as to whether Keogh (p. 481, 266 N.Y.S.2d p. 985, 214 N.E.2d p. 164) limits the extent of the expanded hearing, as claimed by petitioner before the Referee, to new evidence not available on the trial; to strike out evidence repetitious of that adduced at the trial would not change the result which we have reached here.

From the trial to the hearing there was a change in the cast of characters: the main witness common to both was the respondent herself. Disbelieved by the jury at her trial, she was entirely credited by the Referee. The transcript of testimony of both the Hedges, believed by the jury at the trial, was read by the Referee, and characterized by him as completely unworthy of belief. They were not present in person at the hearing. The processes by which the Referee reversed the trial's findings as to credibility are revealed in the report; they do not accord, in our view, with reason.

Undergirding the conclusion that respondent was innocent of the crime of which convicted is the Referee's apparent acceptance of her claims of unfair treatment at the trial: the trial court's refusal of severance, and the 'inconsistency' of a jury's verdict which convicted her of conspiracy while acquitting her of the substantive crime which was the goal of the conspiracy. Both of these claims were adjudicated as matters of law in the affirmance of her conviction. As to the consequence of denial of the severance which, it is claimed, deprived her of Schawartzberg's exculpatory testimony at the trial, it must be noted that the Referee himself, in considering that same testimony at the hearing, gave it no credence whatever, characterizing the witness as completely unworthy of belief. It is difficult, therefore, to see how his testimony would have helped respondent at the...