Cohen v. Hurley

PETITIONER: Cohen
RESPONDENT: Hurley
LOCATION: Trailways Bus Terminal

DOCKET NO.: 84
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 366 US 117 (1961)
ARGUED: Dec 14, 1960 / Dec 15, 1960
DECIDED: Apr 24, 1961

Facts of the case

Question

Media for Cohen v. Hurley

Audio Transcription for Oral Argument - December 15, 1960 in Cohen v. Hurley

Audio Transcription for Oral Argument - December 14, 1960 in Cohen v. Hurley

Earl Warren:

Number 84, Albert Martin Cohen, Petitioner, versus Denis M. Hurley.

Mr. Kiendl.

Theodore Kiendl:

May it please the Court.

This case is here on certiorari to review a decision of the Court of Appeals of the State of New York, which affirmed an order of the Appellate Division in the Second Department of the Supreme Court of the State of New York, disbarring the petitioner from the further practice of the law.

In the Court of Appeals, the opinion of that Court was written by the Chief Judge.

There was one dissent in a separate opinion by Judge Fuld in the Appellate Division of the Second Department where the disciplinary proceeding originates in which had power and control over the bar.

The opinion was written by Mr. Justice Baldock and there was one dissent by Mr. Justice -- Mr. Justice --

Kleinfeld

Theodore Kiendl:

-- Mr. Justice Kleinfeld -- and an indication by the presiding justice in the concurring opinion with the -- the Court's opinions that he entertained some reluctance in reaching the conclusion to go with the majority in that case.

Now, the amended remittitur shows clearly, as we see it, that the federal constitutional question was raised and necessarily disposed off in the Court of Appeals.

Your Honors will see at page 96 of the transcript of record, the Amendment to the remittitur in which it was stated amongst other things that upon the appeal herein, they were presented and necessarily passed upon questions under the Constitution of the United States quoting them and then concluding the Court of Appeals held that the rights of appellant, petitioner here, under the Fourteenth Amendment had not been violated.

Now, our case is somewhat different from the two cases that proceeded and that there's nothing here involving any question about Communist membership, subversive activities or anything of that kind, violent overthrow of the Government by force and violence.

This is a case involving an attorney.

And the facts are virtually uncontradicted and so far as this Court is concerned, we think conceded.

We may draw different inferences from some of the facts but essentially, the basic term and the facts in this case are undisputed.

And if I may, I'd like to briefly summarize them.

The petitioner was admitted to practice in the Supreme Court of the State of New York in the year 1922, almost 38 years ago.

He specialized in the practice of negligence law, taking personal injury cases and death cases on contingency basis.

And he continued that practice right up to the time that this disbarment order was entered a year or so ago since it's been stayed by an order of this Court.

Now, in the course of his practice, he was compelled under the rules of that Court improperly to file statements of the retainers that he accepted in these personal injury cases.

If you'll entertain more than five such cases in a year, you had to file written reports with the Appellate Division and this was done -- and this record shows that during the course of a period of five years from 1954 to 1958 inclusive, he had filed some 300 of retainers or an average of some 60 a year in this specialty in which he was engaged.

There came a time when the Appellate Division in the Second Department for reasons that we're satisfactory to it, ordered a judicial inquiry into practices existing in the bar and the borough of Brooklyn, the County of Kings.

Those practices we might call "ambulance chasing" practices for want of a better word.

And the inquiry started in the subpoena duces tecum was served on this petitioner.

Subpoena called for the production of all his books and records pertaining to these retainers.

It also called for his attendants as a witness.

And he attended before there was inquiry which was being conducted by an additional special term of the Supreme Court but had been delegated for that purpose by the Appellate Division of the Supreme Court.

He attended and was asked various questions.

He was asked to produce his books and records including his bank accounts and things of that kind.

He was asked some 60 different questions, touching along and relevant to unquestionably the professional -- his professional conduct in some of these retainer cases.