Association of the Bar of the City of New York and New York County Lawyers Association v. Abraham J. Isserman , 271 F.2d 784 ( 1959 )

271 F.2d 784

ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK and New York
County Lawyers Association, Petitioners-Appellees,
v.
Abraham J. ISSERMAN, Respondent-Appellant.

Nos. 193, 194, Dockets 25160, 25161.

United States Court of Appeals Second Circuit.

Argued May 8, 1959.
Decided Sept. 9, 1959.

John T. McTernan, Los Angeles, Cal. (Basil R. Pollitt, Brooklyn, N.Y., on the brief), for appellant.

F. W. H. Adams, New York City (George C. Mantzoros, New York City, on the brief), for appellees.

Abraham J. Isserman appeals from a judgment of the court below disbarring him from practice before that court. Appellant it one of the five lawyers adjudged guilty of contempt during the course of the trial of United States v. Foster, affirmed sub nom. United States v. Dennis, 2 Cir., 183 F.2d 201, affirmed Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. The contempt convictions were affirmed in part by a divided court in United States v. Sacher, 2 Cir., 182 F.2d 416, and this judgment was in turn affirmed by a divided court in Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717. Thereafter petitioners instituted disciplinary proceedings against Sacher and Isserman, which were fully heard by Judge Hincks, sitting by request and by designation. In a carefully reasoned opinion Judge Hincks ruled that Sacher should be disbarred, but that Isserman's conduct merited only an order of suspension for two years, the order therefor being filed on January 11, 1952. Sacher appealed; and his judgment of disbarment, having been affirmed by a divided court, In re Sacher, 2 Cir., 206 F.2d 358, was reversed as 'unnecessarily severe,' again by a divided court, in Sacher v. Association of the Bar of the City of New York, 347 U.S. 388, 74 S.Ct. 569, 98 L.Ed. 790. Isserman filed notice of appeal, but did not press it when this new proceeding for disbarment was initiated in 1952 under General Rule 5(b)(2) of the court below providing for the disbarment of any attorney who had been disbarred in any other court. The reason for this was that meanwhile the highest court of New Jersey had entered an order of disbarment against appellant because of the happenings in the Dennis case and the contempt conviction. In re Isserman, 9 N.J. 269, 87 A.2d 903; 9 N.J. 316, 88 A.2d 199, certiorari denied (2 justices dissenting), Isserman v. Ethics Committee of Essex County Bar Ass'n, 345 U.S. 927, 73 S.Ct. 706, 97 L.Ed. 1357. In the present proceeding Chief Judge Knox conducted hearings and filed a memorandum for disbarment, but delayed entry of an order pending outcome of the Sacher appeal. Later the hearings were reopened before Chief Judge Clancy, who entered the judgment on appeal on January 27, 1958.

Before CLARK, Chief Judge, WATERMAN, Circuit Judge, and EDELSTEIN, District Judge.

PER CURIAM.

1

It is now thoroughly settled that 'disbarment by federal courts does not automatically flow from disbarment by state courts.' Theard v. United States, 354 U.S. 278, 282, 77 S.Ct. 1274, 1276, 1 L.Ed.2d 1342; Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585; In re MacNeil, 1 Cir.,266 F.2d 167. Making the thorough examination of the record which these cases require us to undertake, we are constrained to conclude that Judge Hincks's very careful and precisely buttressed judgment marks the extent of the punishment appropriate for this appellant. Indeed, the two-year suspension of Isserman ordered by Judge Hincks cannot be considered other than severe, particularly in comparison with the actions of Sacher, whose disbarment was found oversevere by the Supreme Court. On the record Isserman's derelictions seem comparatively mild, justifying four justices of the Supreme Court in their statement, 'What remains is a finding that he was guilty of several unplanned contumacious outbursts during a long and bitter trial.' In re Disbarment of Isserman, supra, 345 U.S. 286, 294, 73 S.Ct. 676, 680, 97 L.Ed. 1013.1 Hence the two-year suspension should have marked the ending of his punishment. In actuality he has undergone practical suspension for nearly ten years since the close of the Dennis trial. No other of the five attorneys in the case has been disbarred or suspended. Thus the punishment visited on Isserman appears discriminatorily severe and should now be terminated.

2

We note that the court below made reference, as did the New Jersey court, to Isserman's being fined for a statutory offense as a young man and suspended from practice, where the court went out of its way to stress the limited nature of the offense. In re Isserman, 1928, 6 N.J.Misc. 146, 140 A. 253. In 1933 the New Jersey Court of Pardons granted him a full pardon. There is also some suggestion, which seems unclear as well as unproven, that he may not have disclosed these circumstances of record as much as he should. Compare, however, Mr. Justice Jackson's rebuttal of this point, In re Disbarment of Isserman, supra, 345 U.S. 286, 291, 292, 73 S.Ct. 676, 97 L.Ed. 1013. No separate charges were preferred or hearing had or finding made as to these bygone issues; they seem to us at most too tangential to justify the severe increase in the disciplinary sentence thus urged.

3

The judgment of disbarment is reversed and the proceeding is dismissed.

4

WATERMAN, Circuit Judge.

5

I dissent.

1

Note also Isserman's comparatively few and relatively mild appearances in the Contempt Certificate, United States v. Sacher, 2 Cir., 182 F.2d 416, 430-453, or in Mr. Justice Frankfurter's recital of trial incidents, Sacher v. United States, 343 U.S. 1, 42-89, 72 S.Ct. 451, 96 L.Ed. 717