Willner v. Committee on Character and Fitness, Appellate Division of the Supreme Court of New York, First Judicial Department

PETITIONER:Willner
RESPONDENT:Committee on Character and Fitness, Appellate Division of the Supreme Court of New York, First Judicial Department
LOCATION:Formerly S. H. Kress and Co.

DOCKET NO.: 140
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 373 US 96 (1963)
ARGUED: Feb 21, 1963
DECIDED: May 13, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – February 21, 1963 in Willner v. Committee on Character and Fitness, Appellate Division of the Supreme Court of New York, First Judicial Department

Earl Warren:

Number 140, David Wilner, Petitioner against Committee on Character.

Mr. Waldman?

Henry Waldman:

Yes I want to say at the very outset that I have been practicing law more than 60 years, and most of it in trial and appeal work in courts.

Well that’s the reason my voice may not have the volume and I’m going to ask Your Honors to bear with me.

Earl Warren:

[Inaudible]

Henry Waldman:

Thank you, Your Honor.

This is an appeal from a unanimous decision of the Court of Appeals of the State of New York, which denied the petitioner, Willner admission to the Bar.

Willner commenced or rather applied for admission some 25 years ago.

It was denied and he has been fighting for it ever since.

Willner was the son of immigrant parents who were impoverished, and unlike we often read about young men who work their way through college, he not only had work to his way through college, and four years of law school, but he actually had to work his way through elementary school. the reason of the fact that those people were so poor.

Now ordinarily the average young man who applies for admission to the Bar is about the age of 25, 26, 27, when he applied he was a mature man, 36 years of age.

He had graduated from the School of Commerce, New York University with a degree of Bachelor of Commercial Science.

He then studied law for four years and graduated first as a Bachelor of Laws and then as a Master of Laws, and that exempted him from having to serve a clerkship in a lawyer’s office, and that’s very important in this connection.

He was married, had two children, a boy was suffering from asthma, was living in New York and then decided it would be better if he would move the family to the country, or at least — and he moved it to Peekskill up in Westchester County.

It’s about 30 miles north of the City Line.

And he had to make a living and what he knew was accounting, he practically finished his accounting course.

So he engaged in business of accounting, and that of course brought him into contact with people who had to do business with, and anyone who participates in the activities of the marketplace is bound to get an occasional cuff, bound to get into disputes like anybody else who engages in business, and he did.

He got into a dispute with a lawyer by the name of James Dempsey and I am not going into details regarding it, but he made a bitter enemy of Dempsey.

In the meanwhile, he had taken the Bar examination, had passed successfully and was ready to be admitted to the Bar.

Now admission into the Bar in New York is delegated to the Appellate Division.

The Court of Appeals makes the rules and regulations and delegates the Appellate Division, the business of admitting attorneys to the Bar.

Naturally the number of lawyers who apply for admission is very large in New York, and so the job of examining the character and fitness of the applicant for admission to the Bar is delegated to a committee of — termed the Committee on Character and Fitness.

It consists of ten members and they are all supposed to be eminent lawyers.

Willner having received his certificate from the Board of the Law Examiners then applied to the — or Bar rather appeared before the Character Committee.

[Inaudible]

Henry Waldman:

Pardon?

[Inaudible] character, who appoints —

Henry Waldman:

Oh, the Character Committee is appointed by the Presiding Justice of the Appellate Division and in the meanwhile, while waiting to receive his certificate as a Certified Public Accountant, he thought it advisable to open an office in Manhattan, and he sublet from the firm Weidner and Westall [Inaudible] cost of $7.50 a month.

That office was apparently managed by Weider, and after he got in there he found a motley crowd of subtenants, one was a bookmaker and by that I don’t mean one who publishes or writes books, one who takes bets on races, another was a handicapper and as soon as Willner saw what he was in for, he walked out, and meanwhile he gotten into row with Weidner and Weidner’s partner also realizing the sort of office was in, dissolved his partnership and walked out.

When he came before the Character Committee, oh, yes, and Weidner also filed a complaint —

[Inaudible]

Henry Waldman:

Pardon?

[Inaudible]

Henry Waldman:

Weider did and Dempsey did.

Potter Stewart:

Filed a complaint?

Henry Waldman:

Complaint that is — whether it was in affidavit form or just mere letters, we do not know, because Willner was never permitted to read them.

He was questioned about them, and the Committee consisted of Mr. Strook, Mr. Ellison and Basil O’Connor.

Apparently when he appeared before this Committee, he was questioned very sharply and he became very much nettled and probably in all — probably spoke rather crudely.

In any event he apparently made a bad impression on this committee of three and lo and behold they filed a report which stated that they were not satisfied that he possessed the character and fitness requisite for a member of a Bar of New York.

John M. Harlan II:

Was he given Mr. Waldman, was he given the names of the two lawyers?

Henry Waldman:

Yes, he was told about them.

John M. Harlan II:

Told about them.

Told —

Henry Waldman:

But he was — he asked the Committee to summon these two men and confront and permit him to cross-examine them.

In fact what he demanded of the Committee was he demanded a trial.

John M. Harlan II:

Where does that appear in the record?

Henry Waldman:

Oh, yes.

John M. Harlan II:

I say where, I’m not questioning that.

Henry Waldman:

It appears in the transcript.

John M. Harlan II:

Well, never mind go ahead sir.

Henry Waldman:

Pardon?

John M. Harlan II:

Go ahead don’t let me interrupt you argument.

Henry Waldman:

Now he — that was in 1937 and he made additional applications, about five or six more.

Everyone was denied without opinion, not so much as a three word sentence.

All unanimously denied, no opinion, and to this day he doesn’t know just why he was not admitted to Bar except of course he assumes that the Dempsey and Wieder letters probably are the cause.

Now, the right to a trial, in a case of this kind is unquestioned.

When I mean a trial, I mean he has the right to face, to confront his accusers, cross examine them and in fact have a trial in the ordinary and the usual course, where common law procedure and rules of evidence are maintained.

As a matter of fact that right is established as case law in the State of New York and the case of a recoupment.

That case was argued in 1959, but decided — published in 1960, that’s a long time ago, but that case has never been overruled, modified or qualified to my knowledge and its stare decisis is still in force.

That case is the law in the State of New York.

Henry Waldman:

Now that case stated that admission to the Bar was a substandard right.

In other words, a substantial right to which a man was entitled to confrontation and all.

Now as a matter of fact, the Character Committee every time is served with papers, never appeared either by serving a reply to the petition or by the personal appearance of one of it’s members, all of whom are lawyers or of it’s secretary.

He simply ignored it with a sort of silent content and that man Willner where every few years, he made a new application, denied, the Character Committee didn’t appear and the Appellate Division simply denied it without opinion.

We finally got the petition, which initiated this proceeding was run up by Willner himself, though I think with the aid of a young lawyer friend.

In any event he appeared pro se and I only got into it later.

The petition was denied by the Appellate Division.

I made application to the Appellate Division for leave to appeal to the Court of Appeals that was necessary.

Motion denied, then I made an application to the Court of Appeals and to my amazement and joy the application was granted.

When I of course filed a brief and the other side did not file a brief, when I appeared in Albany before the Court, the other side wasn’t there.

I argued the appeal for about 20 minutes and two days later, they rendered their decision.

Order of the Appellate Division unanimously affirmed, no opinion.

The first time that I received a brief was when I filed my petition for certiorari here.

And then the Attorney General of New York up here filed a brief and from the — but only really said, was in view of the fact that his application had been denied way back 25 years ago, there’s no reason why, the petition should be granted.

And there is that — although he didn’t raise the claims, res judicata and in my reply brief, I would like to state because I think its worth stating in answer to his claim, a distinguished general in the army attended a social function in full dress uniform and his chest covered with medals.

Asked how he got all of these medals, he said the first I got by mistake and the others because of the first.

Now the same thing here, the — having denied his admission in 1936 and they contend that he should be denied admission in the year 1963.

Earl Warren:

Mr. Cohen.

Daniel M. Cohen:

Your Honor and Justices of the Court, may it please the Court.

I think that possibly one of the clearest answers that can be given to the petition in this case was indicated by the procedure here this morning when in connection with admissions to the Bar of this Court, each applicant was required to produce somebody who would certify that the applicant satisfied the requirements of the Bar of this Court.

New York has a similar requirement with respect to its Bar.

The process of admission as Mr. Willner has stated has been entrusted by the New York courts to the various Appellate Divisions, the four Appellate Divisions throughout the state.

Each of these Appellate Divisions dealing with residence in its own district has what has been described as a Character Committee.

This Character Committee can affect forms for the large group of applicants to the Bar in New York, the same function that was performed here this morning by previously admitted members of a Bar of this Court.

It examines into the character of each applicant and if the Committee is satisfied as to the applicant’s character and fitness it certifies to the Appellate Division that the applicant is entitled to admission.

Now —

Earl Warren:

That was exactly like ours [Inaudible]

Daniel M. Cohen:

It’s not exactly like yours, it’s not —

Earl Warren:

[Inaudible] bar and in yours he must go before this court and if they say no then he has to file [Inaudible]

Daniel M. Cohen:

Exactly Your Honor, in effect there is a monopoly, but it is a monopoly which exists under the law of the State of New York, they – there isn’t any challenge as I see it to the procedural provision that requires the endorsement by the Committee that is not the question that is been presented either by Mr. Waldman, for his client or by the Bill of Rights Committee of the Bar Association, which has filed a brief amicus.

Earl Warren:

Do they also see that the [Inaudible]

Daniel M. Cohen:

No, that’s not agreed to at all.

The – and as a matter of fact if an admission were denied arbitrarily in New York, there is a procedure under – we submit under Article 78 of the Civil Practice Act which would provide for review of any arbitrary action by the Committee.

John M. Harlan II:

Am I right in thinking that the Character Committee as an arm of the Court simply files its report either recommending or recommending against a candidate, is that right?

Daniel M. Cohen:

Your Honor is absolutely right, if this is in effect an investigating committee of the Court.

John M. Harlan II:

Well now the next question I want to ask you, is there a procedure where if a man fails to be certified by the Character Committee, does he have any regress before the Appellate Division, if he chooses to contest its recommendation?

Daniel M. Cohen:

[Inaudible] was applied at the Court for admission, he can attempt review as I suggested by Article 78.

The situation here with Mr. Waldman — with Mr. Willner but the – apparently at no time after his various denials to be applied directly to the Appellate Division for review of an action by the Committee, the –

John M. Harlan II:

Is that a fact?

Daniel M. Cohen:

I think that is a fact and I think that the record will bear that out.

There were various applications that were made, various boards of applications, but if I can get down to the facts briefly, possibly I can show you exactly what happened.

The first application that was made by Mr. Willner —

Earl Warren:

May I pose this [Inaudible] What requirements are there of the court [Inaudible] hold a hearing, is the applicant entitled to conformation [Inaudible]

Daniel M. Cohen:

Well to those questions one at a time.

Earl Warren:

[Inaudible]

Daniel M. Cohen:

In response to your first question, there are no absolute requirements that I can find in the New York Statute for any hearing.

There are no absolute requirements for cross examination or confrontation, that —

[Inaudible]

Daniel M. Cohen:

Pardon?

[Inaudible]

Daniel M. Cohen:

No, the statute does not prescribe in any sort of detail, the procedure that is to be followed by this Committee.

The Committee is primarily an investigating committee and is so designated in the statutes which provides for its creation.

The committee is — has its procedure prescribed only in or approximately a very limited degree by stating that one of the procedures that it can require from an applicant is that he submit two affidavits in support of his application by attorney showing his good moral character.

Apart from that the Committee is pretty much left on its own as an investigator for the court, as an arm of the court, to go out and to obtain its information in the manner in which it deems it best to obtain the information.

There are no limitations on its processes of investigation.

The committee advertises as soon as an applicant files his application with the committee and transmits the certificate that he has satisfied the scholarship requirements by passing the Bar Exam.

Committee advertises in the Law Journal the names of the persons who have applied for admission.

Attorneys, other persons who see the advertisement in the Law Journal respond, send in whatever information they have.

The committee itself has investigators.

The staff is a relatively small staff, who are able to go out and to check up on the information that they receive, but the ultimate function of the committee is not to pass upon the application for admissions to the Bar, not to adjudicate that a person is not entitled to admission, but simply to transmit to the Appellate Division when it receives this information, which is unfavorable.

Daniel M. Cohen:

Now when there is no such information, when there is nothing which comes before the committee, which acts as sort of a danger signal, a warning to the committee that it should stop.

The committee is in a position where it can certify that an applicant is entitled to admission to the Bar.

When information comes —

Potter Stewart:

Mr. Cohen, I assume that in the vast majority of the cases, 99% or so cases a certificate is issued by the Committee, by the Character Committee under Rule 1, which if you are right in your —

Daniel M. Cohen:

Yes, page four of —

Potter Stewart:

— saying that the applicant is entitled to admission and that certificate is sent to the Appellate Division is it or to the applicant?

Daniel M. Cohen:

No, that certificate is sent to the Appellate Division and the Appellate Division acts on it pretty much pro forma.

In most cases they will admit a very large class at one time, sometimes it comes to 300 or 400.

Potter Stewart:

Yes, now we’re dealing here —

Daniel M. Cohen:

Now this is the pathological case.

Potter Stewart:

Yeah, now we are dealing with the rare case where the Committee did not issue such a certificate and what do they do before they fail to issue a certificate, do they get in touch with the applicant or what happens?

Daniel M. Cohen:

They get in touch with the applicant.

They bring him in for – before a sub-committee, generally consisting of three to five members.

In this particular department they work with two sub-committees both consisting of five members generally.

Potter Stewart:

And really, well I suppose we shouldn’t be talking about what was the procedure back in 1937 and 1938 —

Daniel M. Cohen:

This was the procedure back in 1937 and 1938. Originally however in this particular case they brought him in before a three-man sub-committee as was stated and Mr. Wieder was confronted with these letters, or this — the record indicates one letter at that particular time, which had been received filing a compliant against him.

Presumably he was informed as to the substance of the complaint.

The sub-committee apparently thought there was enough here to worry about to have a full hearing and a hearing was arranged, Mr. Wieder, however, was not informed beyond apparently the substance of this letter as to the nature of the compliant that had been filed against him.

Potter Stewart:

Mr. Wieder or Mr. Willner?

Daniel M. Cohen:

Mr. Willner.

Potter Stewart:

Yeah, Mr. Willner.

Mr. Wieder was —

Daniel M. Cohen:

They are so much alike —

Potter Stewart:

He was the complainant, wasn’t he?

Daniel M. Cohen:

Wieder is the complainant.

[Inaudible]

Daniel M. Cohen:

Mr. Willner, the applicant was the only person present.

Willner is the applicant for admission, and no one was present at the hearing.

These hearings are held privately, secretly, confidentially, so that the facts as to an applicant are not exposed to the public at large.

Applicants as to whom unfavorable information is received are protected against publicity on such complaints and there is — and possibly they may not turn not to be true.

Daniel M. Cohen:

Willner attended the hearing and as Justice Harlan has pointed out in the Second Koenigsberg case, the hearings are a form of obtaining information from these applicants.

One of the best methods of obtaining information from applicants is by examining them on the basis of information that has been obtained as to them.

Earl Warren:

Has there been a hearing before [Inaudible]

Daniel M. Cohen:

No.

The complainants were never brought in for hearing.

This was not an adversary type of proceeding, apparently what happened was that the committee, the Character Committee sent out its own investigator to check to a certain extent or as far as this investigator could, on the details of the complaints that were filed against the applicant and on the basis of the report that was brought back by the committee’s own investigator, the applicant was examined before the committee.

Now, he was given notice through the form of questioning as to the nature of the charges and complaints that were filed against him.

He was given an opportunity to deny or admit the charges, in connection with the first complaint, and the first complaint was that this applicant had attempted to serve a clerkship where the attorney Weider had not completed it for various reasons.

The applicant admitted that he had failed in his questionnaire before the committee that set forth the fact that he had been employed by Weider.

Now, the fact of employment was significant because it indicated a non-disclosure of a fact that apparently the committee deemed material.

In view of the fact, this man actually did not require a clerkship.

The committee apparently did not dispose completely of the application in a negative form, but as you will see, as you go through the history of this case, it gave Mr. Willner an opportunity to come in supply whatever information he had to disprove the charges in the complaint.

These were not formal charges, this was just material contained in the letter.

The substance of my argument it seems has to be reduced in view of the short time that I have and I’m not going to try to quote with this whole record.

But the record will indicate that at various times the Committee deferred its disposition of this matter, granted various adjournments in effect to the applicant, to give him an opportunity to clear up his record.

Each time that he was given such an opportunity, there was a new complaint, there was something else that appeared that was disadvantageous to Willner.

Each time that the committee set this matter down for hearing that was material before it that could be considered as reflecting upon his character.

Now, there was no formal disposition in his first application until 1938.

I would say that the —

Earl Warren:

Did they make any findings for the court at all [Inaudible]

Daniel M. Cohen:

It’s a very general finding, Your Honor, which indicates that the Committee was not satisfied as to that this particular applicant was fit for admission to the Bar and that he had the moral character which entitled him to admission.

It is not a —

Earl Warren:

[Inaudible] what are the rights of the petitioner in the appellate Division?

Daniel M. Cohen:

He can apply to the Appellate Division –-

Earl Warren:

At that time?

Daniel M. Cohen:

— at that time he can apply for review.

He can move his admission.

It seems to me, might have some sort of procedure available by which he could ask for a hearing.

There is nothing, which prohibits it.

Earl Warren:

Is there a statute on it?

Daniel M. Cohen:

There is no statute on it, there are no rules and regulations which have been prescribed.

There is just the general procedure that is available either by way of motion practice in New York or by way of our so called Article 78 review the determination of an administrative body.

Now in effect, what Mr. Waldman suggests that we throw away the whole book, on the record it was of what has occurred with relation to the applicant, what they have, what I have set forth as to the proceedings before the Character Committee.

The various hearings that were held in 1938, 1948 and disregard this record in effect what he is asking us to do is to say that any of the facts before the Committee were immaterial because his client was not given the right to cross-examine and to confront the people who filed the first two complaints against him, Weider and Dempsey.

Now —

Earl Warren:

Do you know of any practice of the appellate division whereby [Inaudible] petitioner a hearing to [Inaudible]

Daniel M. Cohen:

Well, our experience in connection with these cases is very limited.

Generally what happens is that these committees treat these matters as non-adversary proceedings.

They have no ax to grind.

Their report goes to the court as an arm of the Court.

It is then up to the court to determine what it should do, but the court is in a position where on its own motion, it can direct such a hearing, it can direct that the hearing be held, whenever it wants to in — if a situation develops that requires a trial-type hearing.

Most of these cases apparently are disposed by the Character Committee in a manner where they will not receive ex parte any information which the applicant is not given an opportunity to explain or to deny and the position of the committee is that it proceeds only on information which is not ex parte.

Now, if in connection with any particular application before, the committee has unfavorable information, information that makes it set up its own, and so here, this man must wait, the committee, it seems to me is not acting arbitrarily if it has in its possession unfavorable information.

In this particular case, the assumption is that everything was set against Willner in these first two complaints was credited.

If the complaints were completely credited and as to the first one of the charges was that the man asked for a false affidavit that he had served the clerkship.

I’m sure that if, if the committee had accepted that that it would never have allowed Willner later on and the Court itself would not have allowed Willner at a later day to have filed a new application for admission as it did in 1948.

If it had accepted the second charge, which would in effect was that Willner had engaged in a fraudulent transaction where he promised that he could put through an RFC loan that he had to pay moneys to an RFC employee to bring about the loan, if these charges had been taken in hold — at face value by the distinguished members of the Bar who constitute this Committee then it seems to me that again the 1948 application would not have been allowed.

These would have been allegations of a sort that would have so, despite the man’s character if accepted that he should not have been allowed to file a second application.

Earl Warren:

What I would like to know is how does an applicant able to defend himself?

Is this [Inaudible] any place it wants then make no findings to the court.

Here they say that we don’t believe that he has the character to become the lawyer.[Inaudible]

Daniel M. Cohen:

Well he can pick —

Earl Warren:

[Inaudible] the committee might be satisfied that eleven of them are [Inaudible] defend himself against that.

How is he going to prepare any defense to it?

Daniel M. Cohen:

Well, it seems to me that the answer to that is substantially the answer I tried to give you a little while ago and that is that the application, the man can bring his case to court and say this is what happened, this is how I was examined before the Committee, I do not know on what ground my application was denied for a certificate, not my application for admission, the application for admission must be made to the court, I don’t know why this Committee is not giving me a certificate.

I ask you the Appellant Division of the State of New York to direct the Committee to come in with a report which is specific, which contains findings which will inform me of the basis upon which my application has been denied.

Now he did not do that at the time —

Earl Warren:

No, but what – it is perhaps [Inaudible] you said you don’t know, you never heard of it.

Now how can he get such a hearing if the committee acts in general [Inaudible]

Daniel M. Cohen:

He can get such a hearing by applying directly to the Appellate Division which in its inherent power has the right to grant such a hearing.

Daniel M. Cohen:

There is —

[Inaudible]

Daniel M. Cohen:

He didn’t do that when he — what apparently what happened is that after an application is denied the applicant is notified by letter, by the Secretary of Character Committee that his application for a certificate of good character has been denied.

[Inaudible]

Daniel M. Cohen:

He went back to the Appellate Division, but at the times that he went back these manners will rather stale.

[Inaudible]

Daniel M. Cohen:

When you mentioned the first time, the first time apparently he went to the Appellate Division was 1943, which was five years after his application for a certificate had first been denied, he started this —

[Inaudible]

Daniel M. Cohen:

Well, in 1943 apparently what happened was that the Appellate Division denied without opinion his —

[Inaudible]

Daniel M. Cohen:

His request on the basis of the report that has been transmitted to it by the Character Committee.

At that time he had asked for a hearing relative to his admission to the Bar in which he stated that he deemed it inadvisable to set forth at great detail, the various phases of testimony and the basis upon which his application for admission to the Bar was denied.

Now that very allegation would seem to indicate that at that time he knew I had a pretty good idea of the basis upon which his application had been denied back in 1938.

His hearing before the committee had been quite extended —

[Inaudible]

Daniel M. Cohen:

He wanted to be appraised —

Potter Stewart:

So there was conspiracy?

Daniel M. Cohen:

Well this was not in 19 — he didn’t say if there was a conspiracy in 1943.

He said in his original application for leave and we’re here simply on an application for a leave to renew his application upon his application for leave to renew in 1961 that there was conspiracy.

Back in 1943 and this record is rather complex and I’d had to dig it out individual file papers, he said that he knew two things, first a considerable stress had been placed at his hearing, this first hearing on the fact that he had set forth in answer to a request for information that he had served no clerkship.

He didn’t hit directly on the point the fact that he had —

[Inaudible]

Daniel M. Cohen:

In effect that was what he asked for.

He asked that he — he didn’t get that at that time.

There isn’t any explanation that I can find in the record the Appellate Division disposed of thing without opinion, I can only speculate that on the basis of the report that had been made by the committee and you’ll find a reference to that at page 33 of my brief, 33 to 34, the Committee had reviewed the testimony and the hearings at which Willner had been personally present and in addition to they set forth certain details as to his conduct between 1938 date and 1943 application.

[Inaudible]

Daniel M. Cohen:

Why the Appellate Division —

[Inaudible]

Daniel M. Cohen:

Well —

[Inaudible]

Daniel M. Cohen:

Let me say this, I would say that all of this material is rather academic as back to 1943, because the Appellate Division actually allowed him in 1948 to renew his application.

I would say that every — well let me tell you what happened in 1948.

[Inaudible]

Daniel M. Cohen:

Before the Appellate division?

[Inaudible]

Daniel M. Cohen:

Well he — apparently various representatives of his have seen the material in the file at various times.

It’s not clear whether they saw the confidential reports by the Character Committee to the Appellate Division that little gap, which may not be considered by the court is a little gap is missing.

Earl Warren:

[Inaudible]

Daniel M. Cohen:

Well, I would say that he’s had an opportunity to defend himself against it, because the record shows at first he was granted this opportunity in 1948 to file a new application for admission.

In 1948 it appeared that he had testified falsely in a civil proceeding as to one, whether he was a member of a certified Public Accountants Associate.

[Inaudible]

Daniel M. Cohen:

This material which was incorporated in the various reports by members of the Character Committee to the —

[Inaudible]

Daniel M. Cohen:

He had made an application before the Appellate —

[Inaudible]

Daniel M. Cohen:

I don’t whether these motions were argued orally or whether they were submitted simply on the basis of the motion papers, but there were various motions returnable before the Appellate Division.

[Inaudible]

Daniel M. Cohen:

He never requested before the Appellate Division that he be granted.

[Inaudible]

Daniel M. Cohen:

That’s right.

[Inaudible]

Daniel M. Cohen:

He asked that at this — in connection with a particular application, which is before this Court for review, where in effect —

[Inaudible]

Daniel M. Cohen:

Yes, Your Honor.

[Inaudible]

Daniel M. Cohen:

Well I think —

[Inaudible]

Daniel M. Cohen:

I think the answer to that has to depend upon the nature of function that this particular Committee performs.

[Inaudible]

Daniel M. Cohen:

I would say that it does not deny him due process.

Daniel M. Cohen:

If he failed to request at an appropriate time, a hearing before the Court itself.

[Inaudible]

Daniel M. Cohen:

One, it’s a little bit tardy.

Witnesses —

Potter Stewart:

25 years?

Daniel M. Cohen:

Just about.

[Inaudible]

Daniel M. Cohen:

I think it is because witnesses die.

[Inaudible]

Daniel M. Cohen:

Well, I think he is pretty much in the same situation as somebody who tries to get certiorari from this Court and tries at about six weeks or 20 days too late.

I think that the time for him to make his application was at the time when there are people available who can testify, pro or con.

[Inaudible]

Daniel M. Cohen:

Well, I didn’t say at anytime.

I’d say within — under your New York Statute, the provision that deals with the ordinarily review of the determination of an administrative body requires that an application for a view be taken promptly.

[Inaudible]

Daniel M. Cohen:

An investigative body.

[Inaudible]

Daniel M. Cohen:

It’s an investigative body primarily; the only administrative function that I can see that it performs is to issue or not to issue a certificate.

Now, if you — pardon?

Earl Warren:

Is this [Inaudible] the administrative agency —

Daniel M. Cohen:

I don’t think that — I don’t think that the question has ever been formally presented to the New York courts for review.

[Inaudible]

Daniel M. Cohen:

In this particular case?

In 1939?

In 1961, it —

In May 1961 [Inaudible]

Daniel M. Cohen:

In May 1961 you had an application, which was an application addressed to the Discretion of the Court for leave to renew an application for admission to the Bar.

[Inaudible]

Daniel M. Cohen:

They just denied it.

The reason that they denied it is not clear.

[Inaudible]

Daniel M. Cohen:

They did that because this Committee and the Court itself has assumed that it is its functions.

[Inaudible]

Daniel M. Cohen:

Possibly, I have clouded the issue rather than straighten it out.

But let me say this, this particular Committee has acted, as Justice Harlan indicated a little while ago as an arm of the Court.

The Court has assumed through the years and it was not until 1960.

Now, that in any case, the Court of Appeals called upon the Attorney General to submit a brief or to argue in the Court of Appeals, any appeal connected with the disposition of an application for admission to the Bar.

The matter has always been considered as an intra-court process.

The Character Committee reported to the Appellate Division.

The Appellate Division in case there was any application disposed the application.

If an appeal were taken to the Court of Appeals, the papers were transmitted just as they were in this case to the Court of Appeals.

Now, it was not until the disposition of matter of anonymous, which I’ve referred to in my brief in 1960, that for the first time, so far as I know, the Court of Appeals called upon any outside agency being the Attorney General’s office in that particular case, and the Attorney — this is the second time that it has called on the Attorney General to intervene in a case, and to act as an advocate.

The theory of a Court being that this is a matter, which requires the Court’s own exercise of discretion, apparently being — that the theory being that these experienced members of the Bar will not out of hand arbitrarily or otherwise on the basis of ex parte evidence dispose off any applicant arbitrarily.

[Inaudible]

Daniel M. Cohen:

It’s exactly what they say we have done here.

They say we’ve acted arbitrarily because we haven’t given this man a hearing.

That in every case we got to give a man no —

[Inaudible]

Daniel M. Cohen:

Well, in the Court of Appeals, in the very case, which they cite, this matter of anonymous that came through the Court of Appeals last year.

The Court of Appeals indicated that if a proper application were made to the Court of Appeals for the papers, they would be allowed to be examined by the applicant.

The Court of Appeals in that case afforded that opportunity and directed that the confidential file be supplied.

Now, one of the difficulties with the position here is no such application was ever made.

Now, the failure to take advantage of the available remedy, it seems to me indicates a failure of advocacy possibly, a lack of diligence by Willner, but —

[Inaudible]

Daniel M. Cohen:

That decision was handed down in 1960.

[Inaudible]

Daniel M. Cohen:

When you say —

[Inaudible]

Daniel M. Cohen:

This is not this case I’m about, Your Honor.

[Inaudible]

Daniel M. Cohen:

I’m afraid that Your Honor is going to have to read this record a little bit more carefully, than I’ve been able to explain it within the limits of a 30-minute argument.

The record — this book which the Appellant asks us to disregard completely contains facts which indicate that in 1943, possibly the basis upon which a hearing could have been granted, might have been outlined by the Appellant, but there would not have been at that time an arbit — yeah.

[Inaudible]

Daniel M. Cohen:

There is no reason why that could not be done in New York without an express rule.

Actually what happened in this particular case was that apparently the Court concluded that on the basis of the facts and —

[Inaudible]

Daniel M. Cohen:

You have the facts on the basis, your own Committee’s report and that —

[Inaudible]

Daniel M. Cohen:

Ordinarily, I should say —

[Inaudible]

Daniel M. Cohen:

Well, I think that possibly the questions that have been asked within the past few minutes indicate an unwillingness to accept what has been the traditional method of dealing with applications for admission to the Bar.

Potter Stewart:

There’s been a good many references to the amicus briefs filed by the Committee of the New York City Bar Association.

Today, you filed a reply to that amicus brief containing at the end of it, in the appendix, a letter to Mr. Herbert Brownell from Mr. Waldman purporting to set up the procedure and function of this committee.

Does that accurately —

Daniel M. Cohen:

I think it’s —

Potter Stewart:

In your knowledge — to your own knowledge [Inaudible]

Daniel M. Cohen:

It’s accurate and up-to-date statement of the – of the Committee’s procedures.

Let me say this, the Bill of Rights Committee filed its brief amicus rather late, gave me very little chance to reply.

I’ve done as well as I could within relatively few days in getting out a reply to the Bill of Rights Committee.

Now it seems to me that one of the things that we are heading for in this discussion of the case is a question as to whether the Bill of Rights Committee is correct in suggesting, that as to this particular type of investigation in to the conduct of a particular individual, the rules which ordinarily apply to trial type hearings should apply.

Now, our —

[Inaudible]

Daniel M. Cohen:

That judicial process can be available if on the facts that’s presented — a showing has made to the Court with such a judicial proceeding as warranted.

I don’t see anything in the New York law that prohibits that, even though Jersey needs to have a specific provision.

[Inaudible]

Daniel M. Cohen:

Yeah, that’s right.

[Inaudible]

Daniel M. Cohen:

That’s right.

[Inaudible]

Daniel M. Cohen:

That’s right.

[Inaudible]

John M. Harlan II:

What you are saying, I take it Mr. Cohen.

As we examine this record which is referred to, which I understand is in the clerk’s office, the question we have got to decide is whether either in 1948, 1960 the Appellate Division abused, violated a due process by denying a hearing on the basis of what was presented to it?

Daniel M. Cohen:

That’s right.

John M. Harlan II:

Isn’t that the only thing in this case?

Daniel M. Cohen:

That’s right.

John M. Harlan II:

And we got to look at the record, now where is the record?

Daniel M. Cohen:

The record is on file in the clerk’s office.

John M. Harlan II:

How big it is?

Daniel M. Cohen:

It’s been stipulated between the parties that these papers which were the original papers can be examined by the Court.

I have summarized in this completely as I can.

John M. Harlan II:

I noticed that.

How big is the record?

Daniel M. Cohen:

Pardon.

John M. Harlan II:

How big is it?

Daniel M. Cohen:

Oh!

I would say that this no higher than these two stacks of papers.

They —

John M. Harlan II:

And I would like to ask another question if I may?

I am puzzled by this amicus brief.

Is there a representative of the Bar Association in the Court Room?

Daniel M. Cohen:

There is no represent — I gather, they were allowed to file a brief, but not to argue.

John M. Harlan II:

Do you know what the — there seems to be a difference of view between the Committees on some subjects in relation to this amicus brief and I can’t put my finger on what the difference is?

Daniel M. Cohen:

Well, they have said it’s far from their brief.

I haven’t had any greater advantage then, Your Honor, in being able to find out exactly where the division lies in the Committee.

As a matter of fact, my information up until about two to three weeks ago was that they were not likely to file a brief in connection with the case.

Apparently, there was a last minute switch, a brief was filed.

The brief is addressed primarily as I can see it to this trial-type hearing problem.

They — if I can go back to a period say about 35 years ago, when I studying with Mr. Justice Douglas at Columbia Law School, I might say this, at that time I learned not to over generalize and I think that —

John M. Harlan II:

That’s an old fashion trade.

Daniel M. Cohen:

Pardon?

John M. Harlan II:

That’s an old fashion trade.[Laughter]

Daniel M. Cohen:

Yeah.

And I should say that the over generalization that might result from the presentation of facts by the Bill of Rights Committee is that because this is a specific type of investigation, a hearing is required.

Now I think if we read carefully what Your Honor said the Second Canningsberg case with Justice Frankfurter has said, or Justice Cardozo said, when he was a Judge of the Court of Appeals for the State of New York, McCollum case, it will be fairly clear that the tradition in this specific type of investigation has been for the responsibility to be placed with the members of the Bar or the Court to find out and ascertain the information that was available about a particular applicant and if issues arise with relation to them, it seems to me that it is not beyond the procedures that were available without specific rule, without specific statute in New York.

John M. Harlan II:

Well —

Daniel M. Cohen:

— For the Court to give any man who says that he has been denied a hearing on any subject and under appropriate circumstances where the Court deems it essential or proper to even require cross examination of persons who filed complaints as to which an adjudication maybe necessary before a determination of character.

John M. Harlan II:

Or unless things have changed, since I’ve been practicing in New York, I would suppose that an applicant who had been denied admission to the Bar, where there is a matter of inherent power of the Court or under Article 78, could file a petition in the Court, in the Appellate Division saying that he has been improperly denied admission on the basis of an ex parte report of the Character Committee.

And if the Appellate Division thought there was substance to it, they would appoint a referee to investigate the matter and make a report.

Now, am I incorrect?

Daniel M. Cohen:

You are absolutely right Your Honor, not incorrect.

[Inaudible]

Daniel M. Cohen:

Yeah.

[Inaudible]

John M. Harlan II:

The question was [Inaudible]

[Inaudible]

John M. Harlan II:

I don’t know what the [Inaudible]

Daniel M. Cohen:

No what you have here now Your Honor is an application for a leave or permission to renew an application for admission to the Bar, 25 years after it was first denied.

[Inaudible]

Daniel M. Cohen:

Well, that may have been due to his own awkwardness in applying to the Court.

John M. Harlan II:

I think it’s [Inaudible] sometime.

[Inaudible]

Daniel M. Cohen:

Well, it depends upon timeliness; it depends upon all of the other facts that are contained in the record.

Earl Warren:

All of these procedures [Inaudible] or the Court proceedings, everything in [Inaudible] a set of findings on which a [Inaudible]

Daniel M. Cohen:

I don’t think that that has been done, but I think that some of these papers indicate that he had a very clear idea of why his application had been denied.

Let me go back to 1943, when he made his application in 1943 to the Court, he said — so that committee can be properly apprised of the various places at which he has resided since the termination of the prior date, prior proceedings and hearings in 1939.

If instant awareness at that time of the necessity and of giving the committee up-to-date information, which was what he hadn’t done originally and he set forth as to the second matter, which he acknowledged had been stressed by the committee, “My failure to state or to explain more fully the nature of certain litigation in which I had participated at or about the time of my consideration before a set committee.

A particular enquiry was made of me by the Clerk and of the Character Committee during such time as to moneys owed by me and litigation pending.”

Earl Warren:

Did the Committee make any finding as to –?

Daniel M. Cohen:

The Committee made no findings at that time.

Daniel M. Cohen:

It just supplied a confidential report to the Court and that report indicated all sorts of other conduct between 1938 and 1943.

Earl Warren:

Did the committee made any findings for the Court to do anything?

Daniel M. Cohen:

No, no more than this Court did in 1954, when it denied certiorari to this applicant the first time.

This Court denied —

Earl Warren:

Is there any difference?

Daniel M. Cohen:

There is a slight difference Your Honor.

Arthur J. Goldberg:

[Inaudible] please correct me if I am wrong, [Inaudible]

Daniel M. Cohen:

That’s right.

Arthur J. Goldberg:

An application was received —

Daniel M. Cohen:

To the Character Committee.

Arthur J. Goldberg:

[Inaudible]

Daniel M. Cohen:

Right.

Arthur J. Goldberg:

[Inaudible]

Daniel M. Cohen:

Right.

Arthur J. Goldberg:

In 1943, he made an application for the Appellate Division, is that correct?

Daniel M. Cohen:

Right.

Arthur J. Goldberg:

[Inaudible]

Daniel M. Cohen:

Right.

Arthur J. Goldberg:

[Inaudible]

Daniel M. Cohen:

By reason of different conduct —

Arthur J. Goldberg:

Then in [Inaudible]

Daniel M. Cohen:

That’s right.

Arthur J. Goldberg:

In 1954, he filed another application he still did everything, that was wrong, 1954 —

Daniel M. Cohen:

Yes sir.

Arthur J. Goldberg:

[Inaudible]

Daniel M. Cohen:

That’s right, that’s right.

Arthur J. Goldberg:

[Inaudible]

Daniel M. Cohen:

They have submitted and whether they are or not it depends upon that type of conduct, that’s right.

Arthur J. Goldberg:

[Inaudible]

Daniel M. Cohen:

That’s right.

Arthur J. Goldberg:

[Inaudible]

Daniel M. Cohen:

That’s substantially an outline of the record with an omission of the details as to the nature of the misconduct that was involved and without a consideration of whether the conduct that he was guilty of in the first instance, which was clearly reflected in the record not as to the details with — as to which there might be a dispute was the type of conduct which might be considered by the Appellate Division in connection with his application for leave to renew, as the type of conduct that might be akin to cancerous misconduct or whatever it was conduct that was trivial that might be overlooked, where the man quoted some later date in someway reprieve themselves.

Now they — and in connection with an application to renewal, I assume that the basic problem before the Court is whether this man is entitled to another opportunity to appeal before our Character Committee at this late date.

That is something that seems to me, which is purely discretionary and which should be left to the discretion of the State Admitting Court.

Thank you.

Earl Warren:

Mr. Waldman.

Henry Waldman:

I’ll only take a minute or two.

In the first place, I was shocked to hear Mr. Cohen say that under the New York practice, an article what he terms an Article 78 proceeding could have been brought by Willner to test the validity of the action of the Character Committee.

Article 78 applies only to a proceeding to compel an administrative agency to do its duty and has nothing to do.

Furthermore, Mr. Willner at someone’s suggestion took his file to Mr. Robert Roger Bryan Hunting, the Secretary of the Bar Association of the City of New York, and Mr. Hunting, two weeks later informed him that there was nothing in that in his record, which justified the denial of admission of the Bar.

And I might say this day Willner was entitled to be admitted at the Bar, when he first applied and in view of his age, in view of the fact that 20 years, 25 years had been lost, the Court should admit him to the Bar, direct his admission to the Bar forth with.

John M. Harlan II:

Your Honor, excuse me.

Henry Waldman:

Yeah.

John M. Harlan II:

I was going to ask you perhaps you’ve answered it and I state, as to what relief you are requesting here, that he be — as if this Court directed his admission to the Bar or that it’d be — the case be sent back with the directions that he be accorded —

Henry Waldman:

To send it back for a rehearing before perhaps a hostile —

John M. Harlan II:

I see.

Henry Waldman:

— Committee and why the man has gone through hell over the 25 years.

Agony and some of the wild letters that he wrote anybody else, any — I believe I would go berserk, if I had been treated that way.

This man has been denied justice, just simple and plain justice and if this Court reverses, please do not send it back to the Character Committee for rehearings, but direct his admission on committee.

Thank you.