In re Zipkin

PETITIONER:In Re Zipkin
LOCATION:Cleveland, Ohio

DOCKET NO.: 288
DECIDED BY: Warren Court (1962)
LOWER COURT:

CITATION: 369 US 400 (1962)
ARGUED: Mar 28, 1962 / Mar 29, 1962
DECIDED: Apr 02, 1962

Facts of the case

Question

  • Oral Argument – March 29, 1962
  • Audio Transcription for Oral Argument – March 29, 1962 in In re Zipkin

    Audio Transcription for Oral Argument – March 28, 1962 in In re Zipkin

    Earl Warren:

    Number 288, in the matter of the determination of good moral character of Michael Zipkin, Petitioner.

    Mr. Davis.

    Heywood H. Davis:

    Mr. Chief Justice and may it please the Court.

    This is a Schware, first, Konigsberg type case.

    The issue is relatively clear-cut.

    Whether commissioner — whether petitioner has been denied permission to take the Missouri Bar Examination in violation of the Due Process Clause of the Fourteenth Amendment because there is no rational justification in the record for the finding of the Missouri Board of Law Examiners that petitioner is not a person of good moral character.

    William J. Brennan, Jr.:

    There’s no First Amendment —

    Heywood H. Davis:

    There is no First Amendment —

    William J. Brennan, Jr.:

    — complication below is it?

    Heywood H. Davis:

    That’s correct.

    The facts are more involved.

    In June of 1960 at the age of 25, petitioner, Michael Zipkin from Kansas City, graduated from the University of Missouri Law School.

    He had previously been investigated twice as to his moral character by regional bar committees and twice found to be of good moral character, once, when he filed his law student registration form and, later, when he filed to take the Missouri Bar Examination.

    He took the Missouri Bar in June of 1960 but did not pass.

    While the papers were being graded, however, a complaint was raised against him and, when the results of the bar examination were announced, petitioner was advised that if he wanted to take a second bar exam, the Board would have to inquire further as to his character.

    The petitioner advised the Board that he did want to take a second examination and the Board advised him that the hearing would be held and that the hearing would be particularly directed to the questions of whether he had held himself out as an attorney in connection with a certain divorce litigation between a Mr. and Mrs. Baurichter in Columbia, Missouri and whether he had influenced or attempted to influence witnesses at the hearing before the State Board of Healing Arts of a Dr. Freeman, a Columbia, Missouri psychiatrist.

    The Board of Healing Arts —

    John M. Harlan II:

    There’s no suggestion, I take it, that he was flunked on his examinations because a complaint had been filed against him.

    Heywood H. Davis:

    That is correct, Mr. Justice.

    John M. Harlan II:

    There’s no suggestion of that kind.

    Heywood H. Davis:

    That is correct.

    He failed the bar exam and this has to do only as to his moral character.

    The State Board of Healing Arts hearing on Dr. Freeman was held in June of 1960 and resulted in Dr. Freeman’s license being revoked for unprofessional conduct.

    Petitioner’s hearing was held in Columbia on October of 1960, as scheduled.

    The witnesses who testified were six, the Board subpoenaed plus Mrs. Baurichter, the individual involved in the divorce litigation, and petitioner, himself.

    Carl Sapp, the first Board witness, a Columbia, Missouri attorney, testified that he’d known petitioner casually for six or seven months.

    That, while he was not acquainted with his reputation, “his conversation and conduct at the times that I have seen and talked to him have been above reproach and he has conducted himself as a gentleman in my presence” and, Mr. Sapp said that he would sign a character affidavit for petitioner.

    Mr. Sapp also testified that he represented Dr. Freeman at his hearing, that he never requested petitioner to interview witnesses or obtain statements and that, to his knowledge, petitioner had never done so.

    Mr. Sapp said the petitioner never played a part in the Freeman hearing.

    Mr. Sapp also testified regarding events related to a divorce proceeding filed by his client, Mrs. Baurichter, who was a patient of Dr. Freeman’s against her husband —

    Potter Stewart:

    Everybody sounds as to being a patient of this doctor’s.

    Heywood H. Davis:

    That’s correct, Mr. Justice, just about everyone.

    Potter Stewart:

    I mean, certainly, all the — everybody involved in this case.

    Heywood H. Davis:

    That is correct.

    Mr. Stap — Sapp stated that there was considerable community feeling in Columbia by reason of the Freeman hearing and the Baurichter divorce proceeding and that, in June of 1960, there were rumors all over the community about Dr. Freeman and Ada Margaret Baurichter, most of which were believed whether there was evidence or not.

    Mr. Sapp said that the issue of petitioner’s character at this law examiner’s hearing was very much tied in with the community feeling toward Dr. Freeman and Mrs. Baurichter.

    The second Board witness, Mr. Baurichter testified that he’d known petitioner probably a year, that he had been on friendly terms with him, and had good relations with his friends, that petitioner had been a guest in the Baurichter home, and that he saw no reason to see otherwise than that petitioner was a person of good reputation.

    Mr. Baurichter also testified that he was estranged from his wife, that petitioner and Mrs. Baurichter had come out to the home at the time Mrs. Baurichter moved out since petitioner helped her move some furniture, that petitioner later came out with Mrs. Baurichter to take an inventory which Mr. Sapp wanted and that, on this latter occasion, petitioner made the statement that “I think I know a little more about it than you do.

    I am a lawyer.”

    Mr. Baurichter’s hired hand, James Earl Grant, the third Board witness, testified to the same effect as to the attorney representation charge.

    It can be noted at this point, however, that Mrs. Baurichter and petitioner both denied that any such attorney representation was made, testifying to the effect that petitioner said “I possibly know more of the law than you do” or words to that effect.

    In any event, this testimonial variance became inconsequential because the Board of Law Examiners in their opinion expressly found that petitioner was not disqualified on the ground that he had held himself out as an attorney.

    The fourth Board witness was Professor Edmond R. Anderson.

    John M. Harlan II:

    That issue, then, is out of the case, everything you’ve been talking about up to now.

    Heywood H. Davis:

    The issue as to the —

    John M. Harlan II:

    Representation.

    Heywood H. Davis:

    — attorney representation charge, that is correct, but it ties in with this whole question, Mr. Justice Harlan and, therefore, I mentioned it.

    Potter Stewart:

    It’s in the case insofar as you’re going to argue that they couldn’t — the Board could not have consistently decided that question that way and the question that’s — that is here, the way they did decide it, isn’t it?

    Heywood H. Davis:

    That’s correct.

    Professor Anderson testified that he had known petitioner over two years, that he knew him as a student and socially, that he thought petitioner met the requirements for admittance to the Missouri Bar and the petitioner was fit to be a member of the Bar.

    Professor Anderson also testified that petitioner’s reputation for character and truthfulness was good and that everybody that I know whose judgment I would respect around here has also thought well of Michael Zipkin and, in Kansas City where I understand he lives now, former students of mine speak well of him.

    Professor Anderson also testified that his wife had been a patient of Dr. Freeman and that Dr. Freeman’s hearing before the State Board of Healing Arts was widely publicized and discussed in conversations and by rumors in the area.

    The fifth Board witness was Dean Joseph Covington of the Missouri Law School.

    He testified that he knew petitioner only in his capacity a dean — as dean, that he was not familiar with his reputation.

    That, in regard to the requirements of character and fitness, he had no knowledge that would prevent petitioner from being a member of the Bar and that, as far as the law school’s records indicated, petitioner was — had good grades and good background.

    Mr. Baurichter testified she’d known petitioner approximately a year-and-a half, that she became acquainted with him when they were both patients of Dr. Freeman and participated in certain group activities that Dr. Freeman stimulated, that petitioner was very highly spoken of, and that she would say his reputation was good.

    Michael J. Trombley, the sixth Board witness, was the main one against petitioner.

    He had received his law degree in Missouri in February of 1960, the semester before petitioner graduated.

    And he testified that he first became acquainted with petitioner when they were freshmen in law school, that they were then on friendly terms, close friends at one time, that they talked a lot and did things together, and that they had been in Dr. Freeman’s home along with Mrs. Trombley, the witness’ wife, and the Bauritchters, and that they have not associated together, petitioner and Trombley, as they once did because, well, primarily over this Dr. Freeman deal.

    Trombley explained that he and his wife had been patients of Dr. Freeman at one time and were in association with him that — the situation came up where a lot of things were being questioned.

    Heywood H. Davis:

    He, Dr. Freeman, was acting in a questionable manner and so forth at which time, we broke off relationship with Dr. Freeman.

    Trombley stated that petitioner came over to the Trombley home twice after that, that they talked about Dr. Freeman and that their friendship just ended right there.

    Potter Stewart:

    Dr. Freeman — I know he’s, I gather he’s a psychiatrist.

    Was he a psychoanalyst or what was he?

    Heywood H. Davis:

    He was a psychiatrist, as far as I know, Your Honor.

    There’s nothing more than that in the record.

    Potter Stewart:

    Some indication that he believed in group therapy.

    Heywood H. Davis:

    That’s correct.

    There is evidence in the record that he did believe in group therapy and various witnesses testified as to social events, roller skating, parties, and that sort of thing that his patients had.

    Potter Stewart:

    It must have been big parties.

    As I said, [Laughter] the whole town seems to be his patient.

    Heywood H. Davis:

    It would appear that way.

    Felix Frankfurter:

    What popular — I ought to know, but I don’t, — what’s the population of Kansas City?

    Heywood H. Davis:

    Kansas City?

    Potter Stewart:

    It’s in Kansas City.

    Heywood H. Davis:

    Kansas City, about 500,000, Columbia —

    Felix Frankfurter:

    Any (Inaudible) of the university?

    Heywood H. Davis:

    I would say — Mr. Coburn says about 35,000.

    Felix Frankfurter:

    Is it the seat of the university?

    Heywood H. Davis:

    It is the seat of the University of Missouri and two other educational institutions, relatively small educational town.

    Felix Frankfurter:

    High I.Q. quotient though.

    High I.Q. quo —

    Heywood H. Davis:

    Yes, sir.

    Yes, sir, very definitely.

    Trombley testified that the break between petitioner and himself had nothing to do with petitioner’s character that it was more his association with Dr. Freeman.

    Trombley further testified that he and his wife employed a housekeeper by the name of Irene Werhey who lived in an apartment in their basement and, yes, who was also a patient of Dr. Freeman and had been for over a year.

    That, while she was under treatment from him, she was informed that she was to appear against him at this hearing of his, that she was very confused and asked Trombley what she should do, and Trombley told her that she should tell the truth.

    Irene, the housekeeper, then went to Dr. Freeman, according to Trombley’s testimony, and told Dr. Freeman that she was going to be called at his hearing, that she was going to tell the truth, and Dr. Freeman told her that that would not be wise, this, all according to the testimony of witness Trombley.

    Trombley testified that, within a few days after that and before the Freedman hearing, a call came in from petitioner that Mrs. Trombley first answered the telephone and that he answered a few minutes or a few seconds later on an extension and that everybody was speaking.

    Trombley testified as to the substance of the conversation as follows and, here, with the Court’s permission, I’ll read from page 10 of the petitioner’s brief where the record is quoted.“

    Heywood H. Davis:

    Sir, Mr. Zipkin was talking to my wife when I picked up the receiver.

    He mentioned the fact that he was helping Dr. Freeman with his case and that things were looking well and that there was some new material or something new had come up but there was a problem in that Irene, I mean, Mrs. Werhey was in a truth-telling mood and that she felt — he felt that my wife and I should meet with he and Dr. Freeman to see what could be done about Mrs. Werhey.”

    Question: “Now, was there any further conversation other than that?”

    “Well, I think that this time, I interjected and my wife had been doing all the talking.

    I said ‘are you trying to intimidate a witness?

    What is going on?’

    He said ‘I think it would be better for everybody all the way around if we met and decided what to do with Mrs. Werhey.’”

    Trombley testified that he gratuitously represented two of the witnesses at the Freeman hearing, including Ms. Irene, the housekeeper but that, after the telephone call by petitioner, he had no further conversations with petitioner with reference to Dr. Freeman’s hearing, that he had no knowledge that petitioner ever approached Irene personally either before or after the telephone conversation.

    And, in fact, in response to a Board member’s question as to what in particular caused him to accuse petitioner of attempting to influence a witness, Trombley replied “I sort of maybe jumped to conclusions, but you take the preceding incident that I discussed that Irene had told me about and connected it with this incident.”

    When asked about petitioner’s reputation for voracity and morality, Trombley replied “I don’t think it is particularly good.”

    After stating he had made up his mind to this during the last few months of their relationship and that he had no opinion in 1959, Trombley admitted, upon further questioning, that he had been a character witness for petitioner in his 1959 divorce case and that he had then testified that petitioner’s reputation in the community for voracity and morality was good.

    The final witness was petitioner, himself.

    He testified that he was introduced to Dr. Freeman by the Trombleys in December of 1958.

    That he, thereafter, became a patient of Dr. Freeman, that he went to him because of his mari — of his own marital difficulties and because he was having difficulty concentrating on his studies.

    Petitioner testified that, at that time, “Trombley was the closest friend I ever had that I considered Mr. and Mrs. Trombley to be very close.”

    Petitioner and Trombley, petitioner testified, sat together in the law classes, helped each other with their examinations.

    Trombley had been a witness at petitioner’s divorce proceeding and Trombley had been instrumental in getting petitioner a place to live at the house of the legal fraternity to which petitioner did not belong after his divorce.

    As to what precipitated the rift between them, petitioner stated that Trombley developed an almost fanatical hatred of Dr. Freeman, that when the Trombleys separated from Dr. Freeman, petitioner did his best to maintain his friendship both with the Trombleys and Dr. Freeman but that, gradually, this became impossible.

    That, every time he went over to the Trombleys even to comfort him after Trombley’s bar exam, Trombley would go and do — and harangued about Dr. Freeman, and that the telephone conversation just ended anything.

    Petitioner testified that “Trombley just got mad at me because I was seeing Dr. Freeman.”

    Earl Warren:

    Did Trombley fail the bar examinations, too?

    Heywood H. Davis:

    No, Your Honor.

    He passed the bar.

    Earl Warren:

    I thought you said he went over to comfort him after.

    Heywood H. Davis:

    Well, he went over to comfort him after he took it before the results —

    Earl Warren:

    I see.

    Heywood H. Davis:

    — were announced.

    Felix Frankfurter:

    We’ve all been through that experience.

    Heywood H. Davis:

    Yes, sir.

    Petitioner testified that he called the Trombley home about a month before the Freeman hearing, that he did so as a friendly gesture because he had heard that Irene, the housekeeper in their home, was going to testify against Dr. Freeman at his hearing, that Mrs. Trombley had once told petitioner that they, the Trombleys, couldn’t stand all this gossip about Dr. Freeman and that he just called them to tell them something he didn’t know they knew.

    Heywood H. Davis:

    Petitioner denied that he used any words such as “truth-telling mood” and stated that there was no intimidation involved in the phone call.

    With both of the Trombleys yelling at him, however, and Mr. Trombley accusing him of attempting to intimidate a witness, petitioner testified that he said “well, if you want to get together with me and talk about this or with me and Dr. Freeman at a later date, I’ll do so.”

    Petitioner testified that he did not talk with Dr. Freeman or anyone about making the call to the Trombleys, that he never even told Dr. Freeman that he did so and that he never talked to Irene about anything connected with the Freeman hearing.

    In February of 1961, the Board of Law Examiners filed their opinion that petitioner was not a person of good moral character and should not be allowed to take a second bar examination.

    One of the five Board members dissented.

    The Board threw out the attorney representation charge, finding that there was no substantial evidence to support it.

    On the witness intimidation charge, however, the Board found against the petitioner.

    The Board said, I am referring to page 17 of petitioner’s brief, based on the record of the hearing before the Board, therefore, it is the finding of the Board that applicant, Michael Zipkin did attempt to influence the testimony of Irene Werhey by approaching Mr. and Mrs. Trombley with the suggestions as testified to by Trombley, that applicant, Michael Zipkin, was not telling the truth in his testimony before the Board with regard to what he said in the telephone conversation to Mr. and Mrs. Trombley and as to whether or not he knew when he telephoned them that Mrs. Werhey was going to testify as to sexual relations with Freeman.

    The Board summarized the testimony regarding petitioner’s character and reputation and comment, here again on page 18, “even though it might be said that the evidence preponderates in favor of the reputation of the applicant for good character, yet, the general reputation would have to yield in deciding this matter to the specific act and facts with regard to the telephone conversation above set out as the determinative factor.”

    Petitioner filed a motion for judicial review in the Missouri Supreme Court urging, among other things, a violation of his constitutional rights in violation of the Fourteenth Amendment, but the Missouri Supreme Court, without oral argument, summarily affirmed the Board’s order.

    William J. Brennan, Jr.:

    Well, what’s the usual practice of the Supreme Court of (Inaudible)?

    Heywood H. Davis:

    As far as I know, Mr. Justice Brennan, this was the first time that a case such as this had come up in Missouri and there was no established practice, and that’s why motion for judicial review almost in the nature of a certiorari petition to this Court was filed with the Missouri Supreme Court.

    The Board of Law Examiners does recommend to the State Supreme Court their findings, and then the court itself of course has the —

    William J. Brennan, Jr.:

    But that’s the nature of the proceeding, a motion for judicial review.

    Heywood H. Davis:

    That was the nature of the proceeding in this instant.

    Since this case in the Missouri Supreme Court, there has been a new rule adopted which specifically spells out a procedure for review giving a bar applicant a certain period of time to file any motion with the Missouri Supreme Court taking exception to any finding of the Board of Law Examiners.

    William J. Brennan, Jr.:

    Well, does the new procedure contemplate an independent examination of the record by the Supreme Court?

    Heywood H. Davis:

    I don’t know, Your Honor.

    William J. Brennan, Jr.:

    Apparently, at least in this occasion, that —

    Heywood H. Davis:

    Other than that the court, of course, has the final determination and obligation to determine the fitness of applicants for the bar.

    William J. Brennan, Jr.:

    Apparently, they didn’t exercise it in their —

    Heywood H. Davis:

    In this instance —

    William J. Brennan, Jr.:

    — independent discretion.

    Heywood H. Davis:

    In this instance, other than in a summary order stating that they reviewed the record and the —

    William J. Brennan, Jr.:

    What was — what was sent up there?

    Heywood H. Davis:

    — exceptions.

    William J. Brennan, Jr.:

    What was sent up to the court with the motion?

    Heywood H. Davis:

    The papers?

    William J. Brennan, Jr.:

    Yes.

    I mean, was the record of the transcript of this procedure sent up?

    Heywood H. Davis:

    The record was sent up and various specific points urged in the motion why the case should be overruled, weight of the evidence, and credibility of the witnesses and that sort of thing, along with the constitutional issue.

    William J. Brennan, Jr.:

    In any event, you’re not raising any question with us as to the adequacy of the review procedure, are you?

    Heywood H. Davis:

    No.

    No, Your Honor.

    Felix Frankfurter:

    What was the proceeding before the Supreme Court?

    Heywood H. Davis:

    The State Supreme Court?

    Felix Frankfurter:

    Yes.

    Heywood H. Davis:

    Well —

    Felix Frankfurter:

    Tell us all there was, so far as you know.

    Heywood H. Davis:

    Well, I know the documents that were filed with the Missouri Supreme Court and the parts of those that relate to the federal constitutional question are contained in the brief — in the record.

    Felix Frankfurter:

    All done on — printed?

    Is it all printed or —

    Heywood H. Davis:

    No, it was typewritten.

    Felix Frankfurter:

    Typewritten.

    Heywood H. Davis:

    It was typewritten.

    Felix Frankfurter:

    What about the brief?

    No oral —

    Heywood H. Davis:

    No brief was ever filed except there, along with this motion for judicial review, there were suggestions in the nature of federal court suggestions which constituted a brief.

    No brief —

    Felix Frankfurter:

    But, what was filed was — was there a lawyer?

    Were you in the case?

    Heywood H. Davis:

    No, I was not in the case at that time.

    Felix Frankfurter:

    Well, whoever represented the petitioner was a lawyer, wasn’t there?

    Heywood H. Davis:

    There was a lawyer at that time, yes.

    Felix Frankfurter:

    Was he restricted as to what he could file?

    Heywood H. Davis:

    No, not in any way and he filed a brief rather full brief was filed, but no response was ever filed and no argument was ever had.

    Potter Stewart:

    There was no oral argument?

    Heywood H. Davis:

    No, Your Honor.

    William J. Brennan, Jr.:

    So, as far it appears, in any event, we don’t know whether the Supreme Court of Missouri ever looked at the record or not.

    Heywood H. Davis:

    Well, they stated in their opinion.

    William J. Brennan, Jr.:

    They did?

    Heywood H. Davis:

    They did.

    William J. Brennan, Jr.:

    I see.

    Heywood H. Davis:

    That’s at the record page 118.

    William J. Brennan, Jr.:

    Would you mind just reading it?

    Heywood H. Davis:

    Now, at this day, the court, having considered the transcript, record, and files herein and the motion for judicial review and exceptions from the findings and orders of the State Board of Law Examiners, finds that said order is supported by competent and substantial evidence on the whole record —

    William J. Brennan, Jr.:

    Well, in that —

    Heywood H. Davis:

    We, therefore, considered and the judge–

    William J. Brennan, Jr.:

    Then they did look at the record.

    Heywood H. Davis:

    Oh!

    Yes, yes, they did have the record before them.

    Felix Frankfurter:

    It’s like our affirmance of an appeal on the printed document without oral argument, is that right?

    Heywood H. Davis:

    I would think so.

    Felix Frankfurter:

    Not at all like a denial of a facial error though.

    Heywood H. Davis:

    Oh!

    No, no.

    I — when I did refer to hat, Mr. Justice, I only meant that the motion that was filed seemed to be in the — by petitioner in the nature of a request for judicial review because there was no question at that time in Missouri.

    Felix Frankfurter:

    (Inaudible) adjudication by the Supreme Court with full power of review, is that right?

    Heywood H. Davis:

    That is correct.

    Petitioner submits that there is no rational justification in the record for the finding of the Missouri Board of Law Examiners.

    Hugo L. Black:

    Is that the sole contention?

    Heywood H. Davis:

    That’s the sole contention.

    William J. Brennan, Jr.:

    Is this a sort of Thompson-Louisville argument?

    Heywood H. Davis:

    We have cited that case, Mr. Justice Brennan, but it’s more Schware-Konigsberg type of argument.

    We don’t claim that there is no evidence in the record to support their finding that he’s lacking in good moral character.

    We do claim that the evidence in the record does not rationally justify the finding of the Board of Law Examiners and rationally justifying, of course, is the language of this Court in both Schware and Konigsberg.

    Missouri Supreme Court Rule 8.07, which appears on page 21 of our brief, states in part that in no event will permission be granted to register as a law student or to take the bar examination until an investigation as the moral character has been completed.

    Two such investigations were made in this case and petitioner was twice found to be of good moral character.

    Thus, at the time the attorney representation charge and the witness intimidation charge were raised against him, he had fulfilled his burden of proof and had established a prima facie case, and the Board never overcame this, the petitioner submits.

    Felix Frankfurter:

    Just set me straight, Mr. Davis.

    Felix Frankfurter:

    After this, roughly speaking, certification, the Board action, now under review, followed, is that right?

    Heywood H. Davis:

    That is correct.

    Felix Frankfurter:

    And how did it get before the Board and — in the first place, who certified his competence to take the bar examination, the same Board?

    Heywood H. Davis:

    I would say yes, the same Board.

    The actual investigation had been made by a regional —

    Felix Frankfurter:

    But the formal authority was this Board.

    Heywood H. Davis:

    That’s correct.

    Felix Frankfurter:

    And he was then authorized to take the examination.

    Heywood H. Davis:

    To take the bar exam, and did take it.

    Felix Frankfurter:

    And then, followed this proceeding?

    Heywood H. Davis:

    That is correct.

    Felix Frankfurter:

    Which, as it were nullified that formal authorization and — have you told us, if you have I was inattentive, I didn’t mean to be.

    How was this new proceeding which is now on review here, how did it get going before the Board?

    Heywood H. Davis:

    Well, a complaint was made.

    Felix Frankfurter:

    Before he got around to taking his bar examination?

    Heywood H. Davis:

    No, after — after he took the bar examination and —

    Felix Frankfurter:

    So he did —

    Heywood H. Davis:

    While the papers-

    Felix Frankfurter:

    — he acted on his authorization.

    He took his bar examination and then there was a complaint contesting his moral —

    Heywood H. Davis:

    Moral char —

    Felix Frankfurter:

    — fitness to be admitted to the bar, is that right?

    Heywood H. Davis:

    That’s correct.

    Felix Frankfurter:

    That’s the order of events?

    Heywood H. Davis:

    That’s correct.

    Felix Frankfurter:

    Alright.

    And, you indicated that the Board, as an active consciously directed body, didn’t go through to find out affirmatively what his moral character.

    Somebody — somebody wrote a letter to somebody the way you want to get to —

    Heywood H. Davis:

    Well, there were actual investigations made by —

    Felix Frankfurter:

    Yes, I know, but it wasn’t the Board in pauperis, was it?

    Heywood H. Davis:

    No.

    Felix Frankfurter:

    And, when a cer — a complaint like this is made and the Board sat as roughly speaking as adjudicating body.

    Heywood H. Davis:

    That’s correct.

    John M. Harlan II:

    Well, if you flunk the first time, you have to get permission to take the bar exams again, do you?

    Heywood H. Davis:

    You may take it a second time without any additional fee, as I understand it, and, as a routine matter, this is frequently done.

    However, at the time they advised petitioner of the results of the bar exam, they told him that if he did want to take a second examination, they would have to have a further inquiry as to his good moral character, and that was the hearing in this case.

    John M. Harlan II:

    That the — but you can’t take the — if you flunk once, you can’t take it automatically.

    Heywood H. Davis:

    Yes, you can.

    John M. Harlan II:

    Oh!

    Can you?

    Heywood H. Davis:

    The following — following session.

    John M. Harlan II:

    Then I don’t understand how the committee gets anything.

    Heywood H. Davis:

    Well, because they —

    John M. Harlan II:

    The Character Committee Examination normally is after you’ve passed your bar exam.

    Heywood H. Davis:

    Not in Missouri, Mr. Justice.

    John M. Harlan II:

    Then when does that — at what stage is the Character Committee?

    Heywood H. Davis:

    Prior to the time you were allowed to take the bar examination.

    John M. Harlan II:

    Oh!

    Initially?

    Heywood H. Davis:

    And, the rules of the Missouri Court specifically provide that in no event will you be allowed to take an examination until the moral character investigation has been completed.

    John M. Harlan II:

    I see.

    Felix Frankfurter:

    The second time or even the first time?

    John M. Harlan II:

    Either time.

    Felix Frankfurter:

    Initially, you can’t take a bar examination in Missouri without being certified to be of good moral character.

    Heywood H. Davis:

    That’s correct.

    Felix Frankfurter:

    And, if you pass it, then you’re admitted and you don’t have to go through another —

    Heywood H. Davis:

    That’s right.

    Felix Frankfurter:

    — moral character examination as those who us who were admitted to the Bar of New York had to go through.

    Heywood H. Davis:

    That’s correct.

    Felix Frankfurter:

    Is that right?

    Heywood H. Davis:

    That’s right.

    Earl Warren:

    Does it appear — does it appear who made that complaint?

    Is it withstanding the witnesses in this —

    Heywood H. Davis:

    That does not appear in the record.

    The efforts were made to find out which do appear in the record but —

    William J. Brennan, Jr.:

    Well, Trombley told some other lawyer, didn’t he in Thompson?

    Heywood H. Davis:

    He reported that to — he reported the telephone incident to the lawyer for the Board of Healing Arts in charge of the Dr. Freeman hearing.

    Earl Warren:

    We’ll recess now Mr. —