In the Matter of Donald William Leo, a Disbarred Attorney, Appellant.BriefN.Y.October 18, 2016State of New York Court of Appeals APPELLANT’S REPLY BRIEF DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com Appellate Division, Second Department, Docket No. 2004-00866 In the Matter of DONALD WILLIAM LEO, Resignor, A Disbarred Attorney. __________________________________________________________ GRIEVANCE COMMITTEE FOR THE TENTH JUDICIAL DISTRICT, Petitioner-Respondent, -against- DONALD WILLIAM LEO, (Attorney Registration No: 1117555), Respondent-Appellant. TO BE ARGUED BY: JOHN F. CLENNAN, ESQ. COURT OF APPEALS NO. APL-2015-00232 TIME REQUESTED: 30 MINUTES JOHN F. CLENNAN, ESQ. Attorney for Respondent-Appellant 2206 Ocean Avenue P.O. Box 1143 Ronkonkoma, New York 11779 (631) 588-6244 i TABLE OF CONTENTS Page Nature of Appeal 1 Synopsis of the Facts 1 Appellant’s Argument 5 Respondent’s Arguments 6 Questions Presented 7 REPLY POINT I: NO DECISION, JUDICIAL QUASI JUDICIAL OR ADMINISTRATIVE, CAN REST UPON AN ERRONEOUS APPLICATION OF THE LAW. (Answering Respondent’s Points I Resp Br 21-47 and Point II Resp Br 48-74) 8 REPLY POINT II: THE REFUSAL OF THE APPELLATE DIVISION TO SET FORTH A REASON OR REASONS FOR DENYING THE PETITION OF THE APPELLANT FOR REINSTATEMENT TO THE NEW YORK STATE BAR, DEPRIVES APPELLANT OF HIS RIGHTS TO SUBSTANTIVE DUE PROCESS. (Answering Resp Br Point II, pp 48-70) 21 REPLY POINT III: RESPONDENT HAS NOT DEMONSTRATED ADHERENCE TO DUE PROCESS IN RESTATEMENT PROCEEDINGS (Answering Resp Br Point II, pp 48-75) 25 Conclusion 35 ii TABLE OF AUTHORITIES Cases Page Clark v Robinson, 252 AD 857, 299 NYS 474 (2d Dept 1937) 34 Cohen v. Lord, Day & Lord 75 NY2d 95, 550 NE2d 410, 551 NYS2d 157 (1989) 14,17 Dalton v. ETS, 87 NY2d 384, 663 NE2d 289, 639 NYS2d 977 (1995) 10,11 Dawson v. White & Case, 88 NY2d 666, 672 NE2d 589, 2,34 649 NYS 2d 364 (1996) 35 Desert Palace, Inc. v. Costa, 539 US 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003) 15 Ex Parte [Levi] Burr, 4 Fed Cases 51 (DC Cir 1823) 27 Ex Parte [Levi] Burr, 22 US 529, 6 L. Ed. 152 (1824) 27 Ex Parte Wall 107 US 265, 2 S. Ct. 569, 27 L. Ed. 552 (1883) 26 Frazier v. Heebe, 482 US 641, 107 S. Ct. 2607, 96 L. Ed. 2d 557 (1987) 33 Glinkenhouse v. Karp, 60 AD3d 630, 877 NYS2d 88 18 Glinkenhouse v. Silver 2011 N.Y. Misc. LEXIS 6477, 2011 N.Y. Slip Op 33546 18 In Re Lieber, 834 NW 2d 200 (Minn 2013) 9,11, 12,19 20 In Re Ming 469 F2d 1352 (7th Cir 1972) 28 Javits v. Stevens, 382 F Supp 131 (SDNY 1974) 32 Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 91 S. Ct. 720, 27 L. Ed. 2d 749 (1971) 30,31 iii Matter of Anonymous, 74 NY2d 938, 549 NE2d 472, 550 NYS2d 270 (1989) 10 Matter of Anonymous, 97 NY2d 332, 766 NE2d 948, 740 NYS2d 286 (2002) 21 Matter of Anonymous v. Grievance Committee, 244 AD2d 549, 664 NYS2d 622 (2d Dept, 1997) 31,32 Matter of the Arbitration between Silverberg and Schwartz, 75 AD2d 817, 427 NYS2d 480 18 Matter of Au, 41 AD3d 67, 834 NYS 2d 136 (1st Dept., 2007) 27,28 Matter of Brennan, 230 AD 218, 243 NYS 705 (1930) 13,22 30 Matter of Citrin, 94 NY2d 459, 727 NE2d 569, 706 NYS2d 72 22 Matter of Citrin, 95 NY2d 897 (2000) 21 Matter of Dondi 63 NY2d 331, 482 NYS2d 431, 472 NE2d 281 (1984) 9,13 28,29 Matter of Dondi v. Jones, 40 NY2d 8, 386 NYS2d 4, 351 NE2d 650 (1976) 29 Matter of Ginsberg, 1 NY2d 144, 134 NE 2d 193, 151 NYS 2d 361 (1956) 28 Matter of Haber, 27 AD2d 576, 276 NYS2d 353 (2d Dept., 1966) 17 Matter of Haber, 23 NY2d 763, 296 NYS2d 957 (1968) 17,18 Matter of Hofbauer, 47 NY2d 648, 393 NYS2d 1009, 419 NYS2d 936 (1979) 11 Matter of Jacobs, 44 F3d 84 (2d Cir, 1994) 26 Matter of Kaiser, 108 AD2d 510, 489 NYS2d 735 (1st Dept, 1985) 16,17 iv Matter of Kaufmann, 245 N.Y. 423, 157 N.E. 730 (1927) 28 Matter of Kourland, 172 AD2d 77, 577 NYS2d 264 (1st Dept, 1991) 27,28 Matter of Leo, 9 AD3d 218, 780 NYS2d 360 (2004) 4 Matter of Levy, 37 NY2d 279, 372 NYS2d 41 (1975) 16 Matter of Pasik v. State Board of Law Examiners 102 A.D.2d 395, 478 N.Y.S.2d 270 (1st Dep't 1984) 31 Matter of Pell v. Bd of Ed, 34 NY2d 222, 356 NYS2d 833, 313 NE2d 321 (1974) 11 Matter of Rouss, 221 NY 81, 116 N. E. 782, (1917) 29 Matter of Rowe, 73 NY2d 336, 537 NE2d 616, 540 NYS2d 231 (1981) 24,25 Matter of Rowe, 174 AD2d 159, 578 NYS2d 631 (2d Dept 1992) 26 Matter of Rowe, 80 NY2d 336, 604 NE2d 728, 590 NYS2d 179 (1992). 26 Matter of Scherbyn v. BOCES, 77 NY 2d 753, 570 NYS 2d 474, 573 NE 2d 562 (1991) 8 Matter of Shaikh 39 NY2d 676, 350 NE 2d 902, 385 NYS 2d 514 [1976] 13,33 Matter of Sugarman 51 AD2d 170, 380 NYS2d 12 (1st Dept., 1976) 27,28 Matter of Wiesner, 94 AD 3d 167, 943 NYS 2d 410, (1st Dept, 2012) 28 Mildner v. Gulotta, 405 F. Supp 182 (EDNY 1976) 22 Mildner v. Gulotta, 425 US 901, 96 SCt 1489, 47 LEd2d 751 (1975) 22 Moffat v. Cresap, 29 NY2d 856, 328 NYS2d 6, 277 NE2d 926 (1971) 33 v Moffat v. Cresap, 33 AD 2d 54, 304 NYS 2d 719 (1st Dept., 1969) 33 Raphael v. Shapiro, 154 Misc. 2d 920, 587 NYS 2d 68 (Sup Ct, NY Co1992) 14 Richardson v. Perales, 402 US 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971) 8 Schware v. Board of Bar Examiners, 353 US 232, 1 LEd2d 796, 77 SCt 752 (1957) 9 Spevack v. Klein, 385 US 511, 87 S. Ct. 625, 17 L.Ed. 2d 574 (1967) 29 Supreme Court of NH v. Piper, 470 US 274, 105 S. Ct. 1272, 84 L. Ed. 2d 205 (1985) 32 Supreme Court of Va. v. Friedman, 487 US 59, 108 S. Ct. 2260, 101 L. Ed. 2d 56 (1988) 32,33 Tang v Appellate Div, 373 F Supp 800 (SDNY 1972) 32 Toker v. Pollak, 44 NY2d 211, 376 NE2d 163, 405 NYS2d 1 (1978) 9 Wiesner v Nardelli, 06 Civ 3533 (HB) (SDNY 2007) 28,32 Wiesner v Rosenberger, 1998 WL 695927 (SDNY 1998) 28 Statutes and Regulations 22 NYCRR 691.10 (b) 19 CPLR 4503 14 CPLR 5712 22 CPLR 5712(a) 10 Judiciary Law Sec 90 32 vi Judiciary Law Section 90 subd 4 10 Code of Professional Responsibility Canon 4 14 DR 2-107 subd 2 19 DR 2-107 subd 3 19 DR 2-111 2 ,13 15,16, 17,18, 19 EC 4-6 14 Rules of Professional Conduct Rule 1.5(g)1 19 Rule 1.7 15,16 17,18 19 Constitutions NY Constit Art VI, Sec 3(a) 10 Legal Writings Alpheus Thomas Mason, The Supreme Court from Taft to Warren 31 (1968) 20 vii Clark and Connelly, A Guide to Reading, Interpreting and Applying Statutes 15 David E. Berstein, Brandeis Brief Myths, 15 Green Bag 2D 9, 14 (2011) 20 Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527 (527) 15 Hal R. Lieberman, J. Richard Supple and Harvey Prager New York Attorney Discipline, Practice and Procedure, 2016 24 Julie Salamon, Facing the Wind: A True Story of Tragedy and Reconciliation, (Random House, NY 2001) 25 NYLJ, Oct. 28, 1991, at 1, col 1 14 “Pulius,” Federalist Papers # 22, 78 24 Websites A Guide to Reading, Interpreting and Applying Statutes https://www.law.georgetown.edu/academics/academic-programs/legal-writing- scholarship/writing-center/upload/statutoryinterpretation.pdf 15 Brandeis Brief Myths http://www.greenbag.org/v15n1/v15n1_articles_bernstein.pdf 20 IRS Guidelines https://www.irs.gov/pub/irs-utl/attorneys_atg.pdf 9 Retire Definition http://www.thefreedictionary.com/retire 9,16 Sale Definition http://legal-dictionary.thefreedictionary.com/sale 2 State of Judiciary Speech viii http://www.nycourts.gov/ctapps/news/SOJ-2015.pdf 21 Transfer Definition http://legal-dictionary.thefreedictionary.com/transfer 2 1 COURT OF APPEALS STATE OF NEW YORK =====================================X In The Matter of DONALD WILLIAM LEO, APL 2015-00232 A Disbarred Attorney =====================================X APPELLANT’S REPLY BRIEF NATURE OF APPEAL This appeal is from a final order denying appellant readmission to the bar. No loss to any client figured in the resignation. SYNOPSIS OF THE FACTS The relevant time line is not in dispute. At the time the practice of former attorney Donald Leo, Sr. was sold to his son, the elder Leo was neither disbarred nor suspended, although he had tendered his proposed resignation. (R 31-33) The Firm’s clients were notified at the time of sale of both the transfer, the new team and most importantly their right to remove their files to another law firm or to continue with “the new team” if they wished. (R 17) At the time of disbarment 2 some months later, the elder Leo had long since departed the state of New York and had no clients to notify. (R 17) The colorful language flows in Respondent’s imaginative projection, worthy of a poorly acted made for TV movie, of sinister motives and hidden agendas, none of which find the slightest support in the record. Flavoring the fictive account with the policeman’s instinctive reaction that “lawyering-up” conceals perfidy, Respondent’s brief is a worthy feat of latter day film noire fiction. There is even a femme fatale in Respondent’s script but fortunately no fatality because the elder Leo had the good sense to report her activities to the police, all to Respondent’s chagrin. Far from Respondent’s imaginative deconstruction of events,1 the record does reflect that the sales agreement was prepared by competent independent 1 “dislike consequence” (Resp Br, 21); “springboard for reinstatement”(id 22), “scheme,” (id 23); “man oeuvering around” (id 26); “finesse” (id 23) “sophistry” (id 28) and so forth. Respondent also dislikes the use of the word “transfer” in Mr. Leo Sr’s farewell address to his clients. (R 24) “Transfer” is of course misleading as it does not say “sale.” It appears that “sale” and “transfer” can be in a legal sense synonyms. Sale is a transfer of something (and title to it) in return for money (or other thing of value) on terms agreed upon between buyer and seller. The price paid may be based on a posted cost, established by negotiation between seller and buyer… http://legal‐dictionary.thefreedictionary.com/sale Transfer encompasses the sale and every other method, direct or indirect, of (1) disposing of property or an interest therein or possession thereof… http://legal‐dictionary.thefreedictionary.com/transfer Respondent seemingly objects to the inclusion of good will in a sales agreement. (R44‐45) In a struggle among the Brahmins, the High Court determined that based upon the custom and usages of a long standing partnership good will was not a distributable asset. Dawson v. White & Case, 88 NY2d 666, 672 NE2d 589, 649 NYS 2d 364 (1996). The court noted that a “law fir[m’s] goodwill has been recognized…[in] Code of Professional Responsibility” DR 2‐111(A). 3 counsel eminently qualified in the field, (R 30-31) at a time when the appellant under psychiatric care was “so emotionally distraught and depressed” that he was entirely “emotionally dependent on [his] attorney and relied completely on [counsel’s] judgment.” (R 31) The resultant contract appears to have been the product of five months from October 2, 2003 to March 25, 2004 intensive work in the business department of a large, major Suffolk Law Firm, hardly the image of the simple form for a Bulk Sales agreement pulled out of a dusty cabinet and filled in hastily in crayon, that the Respondent theorizes. The course of action proposed by Leo Sr’s independent counsel, expert in the field, (R 31) in resigning and in drafting the agreement was designed to serve a number of important and desirable goals: first and foremost among them was continuity of legal services to the clients of the firm. In negotiating with lawyers facing potential charges, the Departmental Grievance Committee “often holds out the `carot` of avoiding further embarrassment through resignation” (R 28) in order to provide as dignified an exit from practice as was possible and “to… avoid unnecessary expenditures of the Court’s [limited] time and budgeted funds .” (R28) The contractual arrangement transferring the firm did provide continued employment of the elder Leo’s son, a long term employee of the senior Leo’s firm. 4 (R 31-32). Following execution of the agreement and notice of the transfer to the clients, the elder Leo departed the state, to take a hand in real estate development in Tennessee, no longer to practice law. In accepting the elder Leo’s resignation, the court noted, “The Grievance Committee urges acceptance of the proffered resignation.” Matter of Leo, 9 AD3d 218, 780 NYS2d 360 (2nd Dept., 2004) Flash forward the economy has changed to the point that Mr. Leo Sr’s enterprise in Tennessee is no longer viable. He decided to apply for readmission. After the first hearing before the character and fitness committee, Mr. Leo scampered through six proceedings in five of the busiest counties in New York State to obtain nunc pro tunc orders. The subcommittee reporting in favor of admission took note: It is apparent that Mr. Leo believed all his actions were proper and in accordance with a detailed business plan prepared by attorneys. Once he realized that the business plan was flawed, he promptly and thoroughly took action to correct the situation. The process of obtaining these court orders and filing closing statements involved substantial effort and expense on his part. He had to commute from Tennessee … comb through the records of approximately 500 cases, …prepare motions…itemizing all…disbursements and attorney fees …on a quantum meruit basis…[and] prepare…71 individualized retainer statements…This is a significant effort for…a 73 [year old] living [out of state]…who has not been practicing law for 10 years. (R22-23 emphasis added) 5 Although the subcommittee reported in favor of reinstatement, the full committee found (a) that the elder Leo had not notified his former clients of his disbarment and (b) that an attorney who sells his practice may not utilize the potential recovery from pending negligence cases as the measure of the consideration without court approval. (R14) The Appellate Division approved the Full Committee’s recommendation. (R11). APPELLANT’S ARGUMENT The existing regulations (a) do not provide for notification of disbarment to former clients by an attorney whose resignation has not yet been accepted at the time he left practice and (b) do not prohibit the use of potential recoveries as the measure of consideration for the sale of a practice. The determination made by the Full Character and Fitness Committee is contrary to law. Appellant justifiably relied on advice of counsel because his eminently qualified counsel was correct. Even if it was not, clients such as Mr. Leo, Sr. are expected to follow in good faith the advice of counsel which appears to be correct. The orderly sale of a practice by an attorney in the process of resigning serves the social good of promoting continuity of representation and facilitating the orderly flow of judicial business. 6 Appellant was deprived of due process in that we are left with a determination unsupported by objective evidence and resting on errors of law. RESPONDENT’S ARGUMENTS A lawyer pending disbarment may not sell his practice. (Resp Br 21-47) Due Process was observed. (Resp Br 48-78) Respondent has compiled an impressive compendium of cases dealing with a wide range of issues dealing with attorney disciplinary proceedings. Many of the cases Respondent cites have a tenuous connection to the points the Respondent endeavors to make; several holdings Respondent has invoked have been disapproved by subsequent cases decided by the US Supreme Court.2 2 The respondent’s anthology presents a most interesting compendium which warrants detailed analysis. Due to the sheer number of cases involved, the analysis of Respondent’s most scholarly collection of authorities has been placed in REPLY POINT III, the authorities are too numerous to include in a footnote. 7 QUESTIONS PRESENTED 1. Did the Character & Fitness Committee err as a matter of law when it found (a) that attorneys in a sale of a negligence practice cannot use as a measure of the value of the practice potential recoveries in pending cases and (b) that attorneys who have retired must inform former clients of their subsequent disbarment? 2. Must all findings rendered be in consonance with the evidence? 8 REPLY POINT I: NO DECISION, JUDICIAL QUASI JUDICIAL OR ADMINISTRATIVE, CAN REST UPON AN ERRONEOUS APPLICATION OF THE LAW. (Answering Respondent’s Points I Resp Br 21-47 and Point II Resp Br 48-74) Appellant’s entire presentation can be summed up in one sentence: The essence of due process is a fair consideration of the application whether by hearing in some form or another or upon written submissions and a reasoned determination on the evidence in conformance with the applicable rules of law. See eg Richardson v. Perales, 402 US 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971). Analogously it is sometimes said in administrative law that, where a hearing is required, review tests whether a reasonable view of the record finds sufficient evidence to uphold the determination; where not required, review determines whether the conclusion is rational free from pure whimsical caprice and unaffected by errors of law. Matter of Scherbyn v. BOCES, 77 NY 2d 753, 570 NYS 2d 474, 573 NE 2d 562 (1991) cited in App Main Br at 45. The difference between reasonableness and rationality may be one without a distinction. Neither is apparent in the determinations of the Full Committee or the Appellate Division. No matter, what Respondent purports to do without foundation in the record is deconstruct the record to conjure up a scenario imputing evil in everything Mr. Leo did since tendering his resignation, selling his practice and removing to 9 Tennessee, even to the point of seeing a demonic hand in calling in the police to ward off the potential violence from an extortionist. To the contrary, “every citizen has a duty to report criminal activity to the proper authorities.” Toker v. Pollak, 44 NY2d 211, 376 NE2d 163, 405 NYS2d 1 (1978 ). Without directly impugning the specific finding of the sub-committee that all Mr. Leo Sr.’s actions were undertaken in good faith upon the advice of counsel, (R22 see In Re Lieber, 834 NW2d 200, 208 [Minn, 2013]) a finding never set aside by the Full Committee or the Appellate Division, Respondent projects emotions3 into Mr. Leo Sr and suggests he orchestrated a grand conspiracy. Imaginary conspiracies have been frequently throughout history the tool of a regime turned repressive. The Star Chamber, the Spanish Inquisition and even the infamous KGB which saw conspiracies everywhere may have begun with the purest of stated motives, but not subject to judicious restraint, they eventually ran amok into a reign of terror. But this is not something purely foreign. Respondent in its brief cites Matter of Dondi (63 NY2d 331, 482 NYS2d 431, 472 NE2d 281 [1984], Resp Br 63). Attorney Philip Dondi was a victim of the excesses of a Special prosecutor. 3 Respondent sees evil in Appellant’s tax return which described him as a “Retired Attorney.” (Resp Br 25) The tax return not a public document open to public view or inspection. 26 USC 6103 It is generally believed that the IRS targets attorneys. Curiously IRS has singled attorneys out for specific attention by publishing particular guidelines for dealing with attorney audits. https://www.irs.gov/pub/irs‐utl/attorneys_atg.pdf Thus many attorneys not in their own practice use some generic labels like “Clerical Employee” to avoid unnecessary intrusions. However, in the years in question, Mr. Leo Sr. could simply have described himself as a “Republican Attorney” and guarantied an audit. Cf Black J in Schware v. Board of Bar Examiners, 353 US 232, 1 LEd2d 796, 77 SCt 752 (1957) App Main B, p 42. Technically Mr. Leo was correctly described by his accountant as a “Retired Attorney” for IRS purposes as Mr. Leo had stopped work, albeit involuntarily. http://www.thefreedictionary.com/retire 10 Here as in many cases of past exhortations of the dangers of imaginary “conspiracies,” these cries have frequently been heard to deflect attention from real issues or problems. In exercising its power to review, the Appellate Division, even when it approves a subordinate court’s or agency’s determination, must set forth new facts if the Appellate Division modifies finding of fact or disapproves the rationale offered. CPLR 5712(a) This is a cornerstone of review in the Appellate Division to enable the Court of Appeals to fulfil its function as the final arbiter of pure law. Insomuch as the Court of Appeals is a Court of law alone (NY Constit Art VI, Sec 3(a); Judiciary Law Sec 90[4]), the Respondent’s offering of fanciful speculation to support the determination under review is not well taken. In the context of this case, the underlying facts were determined in an extensive Sub Committee report (R 15-23). Review in the Court of Appeals “is limited to ensuring…[compliance] with statutory and regulatory requirements…[consistent with the] right[s] of the [applicant]…” Matter of Anonymous, 74 NY2d 938, 549 NE2d 472, 550 NYS2d 270 (1989) cited by Resp Br 51. The Court of Appeal’s limited jurisdiction generally prohibits it from making new findings of facts to feed the furious fantasies of Respondent’s wild imagination. Dalton v. ETS, 87 NY2d 384, 663 11 NE2d 289, 639 NYS2d 977 (1995) “Review is confined to legal issues.” Matter of Hofbauer, 47 NY2d 648, 393 NYS2d 1009, 419 NYS2d 936 (1979); Matter of Pell v. Bd of Ed, 34 NY2d 222, 356 NYS2d 833, 313 NE2d 321 (1974). While the Full Committee recommended to the contrary on two points of law, both erroneous, it choose not to overturn the findings of fact, (R 14) which were in turn left intact by the Appellate Division. (R 13) What is before the Court on an issue of law are the two rulings of the Full Committee left undisturbed by the Appellate Division. As to notice to former clients of disbarment, the real issue is framed by the rules. There is nothing in former DR 2-111 (c) which requires parties to the sale of a law practice to advise clients of the firm of the pendency of a resignation. When Mr. Leo Sr. retired in March, he notified the clients of the transfer of the Firm to “the new team” and of their right to proceed with the successor firm or remove the file. In accordance with that provision (DR 2-111), he no longer had clients to notify later in June when the resignation became effective. Nothing in 22 NYCRR 691.10 requires notice to former clients. See In re Lieber 834 NW2d 200 (Minn 2013) cited App Main Brief 17, 26, 32; Resp Br 37-39. 12 In Lieber, the Minnesota Supreme Court nonetheless rejected the objection to Lieber’s re-admission that Lieber ought to have taken an extra step in voluntary self-mortification, not required by the rules, to notify former clients. After we suspended and then disbarred Lieber in 2005, he submitted an affidavit claiming that he had no clients to whom he was required to give notice. The parties do not dispute that Lieber satisfied the specific provisions of Rule 26 because, in light of the sale of Lieber's law practice in May 2005, Lieber in fact had no clients at the time of either his suspension or disbarment… Lieber received legal advice from… a former director of the Office of Lawyers Professional Responsibility (OLPR) and an ethics attorney, during the months leading up to his suspension and subsequent disbarment…Lieber [was advised] in June 2005 that, because Lieber had no clients, he had no duty to notify under Rule 26, RLPR…[and] that…disbarred or suspended attorney [have] no obligation to go beyond the letter of Rule 26 by notifying former clients…We express no opinion as to whether an attorney could best demonstrate moral change by providing more notice than Rule 26 requires. But those seeking guidance from our rules should be able to rely on those rules, and what Lieber did here is more than mere elevation of form over substance. He did what the rule requires. In re Lieber, 834 NW2d 200, 207-208 (Minn Sup Ct 2013) Respondent unsuccessfully seeks to distinguish Lieber. In both cases the firm was sold to an employee. In Lieber the former attorney remained the incoming attorney’s landlord and hovered about in a vague capacity. Upon the sale 13 of the practice, here the break was far clearer and immediate. The elder Leo retired to Tennessee and severed all business connections with the “new team.” There is no violation of the existing rules. The ruling appealed from rests upon an error of law not corrected in the Appellate Division’s summary determination. Seemingly respondent in a larger sense agrees. It cites Matter of Brennan, (230 AD 218, 243 NYS 705 [2nd Dept 1930] cited at Resp Br 71), Matter of Shaikh (39 NY2d 676, 350 NE 2d 902, 385 NYS 2d 514 [1976] cited at Resp Br 70) and Matter of Dondi, (63 NY2d 331, 482 NYS 2d 431, 472 NE 2d 281[1984] Resp Br 63), all of which admonished the Appellate Division to live within the published rules. With respect to the terms of the sale of the practice again, Respondent seeks to engorge the rules. Prior to the change effected by former DR 2-111 of the Code of Professional Responsibility, now embodied in Rules of Professional Conduct 1-7, a legal practice was unsellable. The theory behind the prohibition, explained Justice Peter Tom, was that the relationship of attorney-client was entirely personal. The policy of this jurisdiction which is similar to the policy of many other States is that the sale by an attorney of an ongoing law practice is improper and prohibited by 14 the Code of Professional Responsibility (Code of Professional Responsibility EC 4-6…) * * * The underlying reason for the policy of prohibition is based upon the unique and sensitive relationship between a lawyer and client. Such is a fiduciary relationship built on confidences and secrets (CPLR 4503; Code of Professional Responsibility Canon 4). The lawyer's obligation to confidentiality and loyalty continues even after the termination of employment. Raphael v. Shapiro, 154 Misc. 2d 920, 587 NYS 2d 68 (Sup Ct, NY Co1992); see also Cohen v. Lord, Day & Lord 75 NY2d 95, 550 NE2d 410, 551 NYS2d 157 (1989). Justice Tom noted that the old rule was causing hardship to attorneys as well as their clients and that there was agitation afoot for change. There is a movement in the legal community of this and other jurisdictions to change this policy and to legalize the sale of law practices. The proponents for legalization argue that a law practice should be treated as a business asset and like other professions such asset should be saleable. They argue that such restriction creates a hardship for lawyers in the legal community especially the solo practitioner who may have devoted many years of dedicated service in building a successful and reputable practice, and are unable to sell the practice and good will when he or she leaves or retires from the practice…In 1991, the Nassau County Bar Association officially advocated a change in the Code of Professional Responsibility to permit lawyers to sell their practices (NYLJ, Oct. 28, 1991, at 1, col 1). 15 The change came in the form of DR 2-111(now Rule 1.7) which authorizes retiring attorneys to sell their practices on “reasonable terms.” (Rule 1.7) In asserting that Retirement does not include leaving practice pending resignation, Respondent reads a qualification not in the text of the rule. The usual rule of reading a regulation or a statute is the plain and clear meaning of the words employed. “The starting point for…analysis is the statutory text…[If] the words…are unambiguous, the judicial inquiry is complete."Desert Palace, Inc. v. Costa, 539 US 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003). This self-evident, elementary principle was boiled down into three simple rules by the brilliant Felix Frankfurter, “Read the Statute, Read the Statute, Read the Statute!” Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527 (527) quoted in Clark and Connelly, A Guide to Reading, Interpreting and Applying Statutes. 4 Retirement means to leave employment on a more or less permanent basis. Re·tire (rĭ-tīr′) as an intransitive verb means “ [t]o withdraw from one's occupation or position, especially upon reaching a certain age; stop working…” As a transitive 4 https://www.law.georgetown.edu/academics/academic‐programs/legal‐writing‐scholarship/writing‐ center/upload/statutoryinterpretation.pdf 16 verb the definition given is “1.a. To cause to withdraw from one's usual field of activity: The board must retire all executives at 65.” The word connotes both voluntary and involuntary departures from employment. (http://www.thefreedictionary.com/retire) Respondent’s spin on the word retire would defeat the intent of the rule to allow attorneys to retire in an orderly manner commensurate with protection of the public by assuring continuity of representation. Such an additional qualification destructive of the change in law effected by DR 2-111, now Rule 1.7, cannot be countenanced. Respondent would turn the clock backwards, causing a chaos and suborning the salutary rule enacted for the primary purpose of protecting the public and serving the public interest. See Matter of Levy, 37 NY2d 279, 282, 372 NYS2d 41, 45 (1975). Indeed the alternative to an orderly sale Respondent would offer is the costlier process formerly employed of requiring the departing attorney to surrender their files to “the DDC’s Chief Counsel to inventory [former attorney’s] files…”(Matter of Kaiser, 108 AD2d 510, 489 NYS2d 735 [1st Dept, 1985]), a process overburdening the limited resources of the court system and potentially 17 destructive of the client’s legitimate right to expect smooth presentation of the pending cases. The second objection Respondent offers to the sales agreement is a use of a division of accounts receivable as part of the consideration. Respondent smokes with rightness indignation when he cites Matter of Haber, (27 AD2d 576, 276 NYS2d 353 [2d Dept., 1966], affirmed no op 23 NY2d 763, 296 NYS2d 957 [1968], Resp Br. 33) to decry the manner in which independent counsel structured the consideration. Haber was decided in 1966, over 30 years before DR 2-111 (now Rule 1.7) was enacted. At the time of Haber, it was unlawful to sell a practice. Indeed it was a grievable offense. Matter of Kaiser, supra. At the time law firms did not have goodwill and it was impossible as a practical matter to enter into a retirement agreement because a non-competition clause which would prohibit soliciting or accepting a former firm’s clients was also illegal. Cohen v. Lord, Day & Lord, supra. DR 2-111 changed all that. It gave attorneys the same freedom of contract that everybody else enjoys, encouraged doddering old timers out of touch to sell 18 off and retire, and protected the public by assuring them continuity of representation. The sole requirement expressly in Rule 1.7 and implicitly in DR 2-111 was that the terms upon which any sale were made be reasonable. The measure of the value of the firm sold from Leo Sr to Leo Jr was a reasonable one inlight of the nature of the practice. The agreement protected the incoming lawyer from back stabbing quantum merit claims from his former boss. It protected the public by providing them with continuity in prosecution of their cases. Haber decided under a former system in which all such contracts were illegal is not controlling. Similarly, Glinkenhouse v. Karp, (60 AD3d 630, 877 NYS2d 88 [2d Dept, 2009, Resp Br 33-35] and Matter of the Arbitration between Silverberg and Schwartz, (75 AD2d 817, 427 NYS2d 480 [2nd Dept., 1980] Resp Br p 32) involved a fee dispute between former partners. They provide no assistance to the instant query. On the other hand, Glinkenhouse v. Silver (2011 N.Y. Misc. LEXIS 6477, 2011 N.Y. Slip Op 33546, Resp Br 35) specifically upheld the right on an attorney to sell his interest in the law practice even while he was the subject of a disciplinary proceeding. 19 Respondent would read into DR 2-111 (now Rule 1.7) the provisions of 22 NYCRR 691.10 (b) which prohibit former lawyers from profiting from the work done by their successors on the file. That rule does not address sales of law practices, it addresses referral fee arrangements and should be read in conjunction with DR 2-107 subd 2 (now Rule 1.5(g)1) which requires division of fees of active lawyers “in proportion to the services performed by each lawyer.” That rule explicitly “does not prohibit payments to a former partner or associate pursuant to a separation or retirement agreement.” DR 2-107 subd 3. Respondent’s real objection is that the rules properly read do not support the erroneous legal conclusions of the Full Committee upon which the Appellate Division’s decision tenuously rests. It sees evil in Mr. Leo Sr’s having engaged top notch counsel who knew the Code of Professional Responsibility and the Regulations well from extensive experience in the field and who structured the sales agreement to satisfy three important goals: to preserve continuity of representation, to provide for an orderly transition benefiting the smooth flow of judicial business and to balance the rights and interests of the elder and junior Leos. Such does not violate the written rule which requires sales agreements to be “reasonable.” Rule 1.7 It would violate Due Process to render punishment for observing attorney’s advice in good faith. In re Lieber, supra. 20 To the extent Respondent sees otherwise, Respondent has finally vindicated Chief Justice Edward D. White, cynical remark that he “could compile a brief twice as thick to prove that the legal profession ought to be abolished.” David E. Berstein, Brandeis Brief Myths, 15 Green Bag 2D 9, 14 (2011) http://www.greenbag.org/v15n1/v15n1_articles_bernstein.pdf quoting Alpheus Thomas Mason, The Supreme Court from Taft to Warren 31 (1968). In any event, whatever perceived or fanciful irregularity independent counsel may have unwittingly created was amply cured by nunc pro tunc orders which were granted without much discussion by justices of five different counties. The sub-committee found that the elder Leo’s efforts in the Herculean task of obtaining all these orders demonstrated the positive “determin[ation]…to work hard to regain [the] privilege…to practice law,” (R 23) The record, having demonstrated the stated opinion of the Full Committee rests upon two significant errors of law and neither the Full Committee nor the Appellate Division having overturned the primary finding of Good Faith, (R 22- 23), see In re Lieber, supra), the determination of the Appellate Division is without a rational basis and should be overturned. 21 REPLY POINT II: THE REFUSAL OF THE APPELLATE DIVISION TO SET FORTH A REASON OR REASONS FOR DENYING THE PETITION OF THE APPELLANT FOR REINSTATEMENT TO THE NEW YORK STATE BAR, DEPRIVES APPELLANT OF HIS RIGHTS TO SUBSTANTIVE DUE PROCESS. (Answering Resp Br Point II, pp 48-70) Petitioner Respondent offering some post hoc rationalizations for the Appellate Division’s actions argues that, in denying the Appellant’s Petition for reinstatement to the New York State Bar, without any written decision detailing its factual findings and legal conclusions, the Appellant was, nevertheless, afforded procedural due process. Citing Matter of Citrin, 94 NY2d 459, 706 NYS2d 72 [2000], motion for clarification denied, 95 NY2d 897, [2000]. Citrin wobbled on the issue and is capable of many different readings. Following Citrin, the Court of Appeals retreated from the reading Respondent derives from Citrin. In Matter of Anonymous (97 NY2d 332, 766 NE2d 948, 740 NYS2d 286 [2002], cited by Resp Br 51), the Court of Appeals determined that an appellant is entitled to review reports furnished to the court and that an applicant had the right to comment upon them.5 5 The reading of Matter of Citrin, (supra) which permits the Appellate Division, Second Department, to avoid the correct procedures observed in the other Departments which make their determination upon written findings of fact and conclusions of law in reinstatement proceedings is not compatible with the goals of consistency, transparency and efficiency set forth in February of 2015, by Chief Judge Jonathan Lippman. http://www.nycourts.gov/ctapps/news/SOJ‐2015.pdf (see Main App Brief p 46) or the report of the Commission on Statewide Attorney Discipline, which recommended reforms. 22 It is the practice in all civil appeals for the Appellate Division to make findings of fact and to set forth its conclusions of law, if they are difference from the determination under review. CPLR 5712. For the last thirty years, such has been the Second Department’s practice in criminal cases as well, ending the reign of the ANOPAC Cont (Affirmed-No-Opinion-All Concur). All other departments routinely render opinions on reinstatement cases. See App Main Br, p 45, fn 14. Thus there are different standards in each department, a practice to be avoided. Matter of Brennan, supra cited at Resp Br., 30. In these circumstances, the applicant seeking further review faces an assault of post hoc rationalizations such as the Respondent offers in a lurid form with great imagination but without support in the record. To say readmission is discretionary, begs the question. There must be a determination to see that discretion has been properly exercised. Judge Weisnsten wrote dissenting from an abstention from ruling on the merits in Mildner v. Gulotta, 405 F. Supp 182 (EDNY 1976), affd 425 US 901, 96 SCt 1489, 47 LEd2d 751 (1975)6 (cited by Resp at Br p 58-59 passim) 6 The majority opinion declined to consider the issues deferring to the state counts to resolve them. 23 [M]ore than two-thirds of the attorneys surveyed [believed] that the due process clause of the Constitution should…require courts of appeals to write at least a brief statement of the reasons for their decisions * * * [T]here is a great risk that confidence in the judicial system may be affected by unexplained decisions * * * Opinions…serve…significant [purposes]…[A]n articulated discussion of the factors, legal, factual or both, which lead the Court to one rather than to another result, gives strength to the system, and reduces, if not eliminates, the easy temptation or tendency to ill- considered or even arbitrary action by those having the awesome power of almost final review. The second, of course, is that the very discursive statement of these articulated reasons is the thing out of which law — and particularly Judge-made law — grows. It is an essential part of the process of the creation of principles on which predictions can fairly be forecast as a basis for conduct, accountability, or the like. All Judges know that in some cases this latter factor may almost completely transcend the importance of the case which is the vehicle bringing the questions forward. * * * [D]ecisions without explanations leaves litigants with the impression that the result was reached by fiat, possibly without a clear understanding of the issues by the court. In granting the attorney the same rights as others in heavily regulated occupations such as junk dealers to a written decision (see App Main Brief Point II), it is necessary to weigh the impact of the modern age particularly internet and social media. Anybody with a computer, a tablet or a cellphone which is everybody, can “google” the good name of Donald William Leo and find a cryptic 24 Decision referring to lack of “the requisite fitness and character to practice law.” The public, always assuming the worst, might think Leo Sr is a mass murderer like Mr. Rowe (Matter of Rowe, 73 NY2d 336, 537 NE2d 616, 540 NYS2d 231 [1981], cited by Resp Br 66-67, discussed in Point III) or a lunatic like Anonymous, (supra). Transparency enables the public to know the facts, guides the bar in representing former attorneys who apply for reinstatement and contributes to the growth of law in fulfillment of Alexander Hamilton’s dream in the Federalist Papers (“Publius,” Federalist Papers # 22, 78) that the precedents made in America will rival in wisdom, volume and authority those of Great Britain’s. See also New York Attorney Discipline, Practice and Procedure, 2016, written by Hal R. Lieberman, J. Richard Supple and Harvey Prager and published by the New York Law Journal, Section 8-3, page 143. 25 REPLY POINT III: RESPONDENT HAS NOT DEMONSTRATED ADHERENCE TO DUE PROCESS IN RESTATEMENT PROCEEDINGS (Answering Resp Br Point II, pp 48-75) Respondent invokes many authorities in support of its proposition that the existing procedures grant applicants all the process that is due. Careful analysis demonstrates that such is not the case. The first and largest group of authorities Respondent relies upon deal with criminal activity. There has been no criminal activity alleged at any time in this case. Matter of Rowe, (73 NY2d 336, 537 NE2d 616, 540 NYS2d 231 [1981] cited at Resp Br 66-67) presents a true crime story. See Julie Salamon, Facing the Wind: A True Story of Tragedy and Reconciliation, (Random House, NY 2001). In 1978, Mr. Rowe bludgeoned his wife and three children to death as a result of psychological problems originating in his failings in his career. Found not guilty by reason of insanity, Mr. Rowe applied for readmission following suspension, on a showing that his mental disease that led to the multiple homicides was in remission. The High Court, reversing the Appellate Division’s unpublished denial of the motion for reinstatement, determined that Mr. Rowe was entitled to a hearing on the issue to “enable the court to determine the whole record whether he fit to practice law.” 26 On remand after hearing, Rowe was disbarred. 174 AD2d 159, 578 NYS2d 631 (2d Dept 1992). The Court of Appeals upheld the disbarment order, but disapproved findings that various public writings of Mr. Rowe violated the suspension order. Consistent with a modern view that an attorney retains all his constitutional rights, the Court of Appeals recognized that a general interest publication of Mr. Rowe’s view were protected by the First Amendment’s guarantee of freedom of speech. 80 NY2d 336, 604 NE2d 728, 590 NYS2d 179 (1992). There is dicta that a disbarred lawyer seeking reinstatement may not in all cases be entitled to a hearing. See also Matter of Jacobs, 44 F3d 84 (2d Cir, 1994) cited by Resp Br 62, 65. Since a hearing was held in this case, the dicta is of little more than footnotal interest. Attorney Rowe who expected reinstatement after killing his own family followed in the footsteps of Lawyer Wall who nearly 100 years earlier had helped swing a prisoner awaiting trial from the nearest tree. Ex Parte Wall (107 US 265, 2 S. Ct. 569, 27 L. Ed. 552 [1883] cited at Resp Br 64) determined that an attorney who participated in a lynching court be disbarred even if he were not indicted for the offence. Prior to taking action, the court drew up specific charges, took testimony, and offered the attorney the opportunity to present evidence in defense. 27 Relying on Ex Parte [Levi] Burr (4 Fed Cases 51 [DC Cir 1823] writ denied 22 US 529, 6 L. Ed. 152 [1824]), the court found no due process denial in proceeding through an evidentiary hearing to remove an attorney directly involved in a transgression against the administration of justice. Burr, not cited by Respondent, is interesting if only for historical purposes since the complainant was none other than “FS Key,” the author of the national anthem. See App main Br, p 39. Matter of Kourland, (172 AD2d 77, 577 NYS2d 264 [1st Dept, 1991] Resp Br 40) deals with an attorney and her husband who developed a sideline in cocaine trafficking and is interesting for the unusual situation in which she was given a choice between federal or state prosecution. Choosing 15-24 months in Club Fed, she attempted to move her own disbarment or leave to resign. That motion was denied and the Departmental Grievance committee’s belated motion to disbar was granted. Although it does seem superfluous to have denied her motion to disbar herself, there was no dispute between her and the Departmental Grievance Committee that disbarment was appropriate. See also Matter of Au, 41 AD3d 67, 834 NYS 2d 136 (1st Dept., 2007) cited at Rep Br 40. In the same vein, Matter of Sugarman (51 AD2d 170, 380 NYS2d 12 [1st Dept., 1976] cited at Resp Br 73) held that a holder of the certificate of relief from 28 civil disabilities is not entitled to automatic reinstatement to the bar. See also Wiesner v Rosenberger, 1998 WL 695927 (SDNY 1998) cited at Resp Br 59; Wiesner v Nardelli, 06 Civ 3533 (HB) (SDNY 2007) cited by Resp Br 70. Neal Eugene Wiesner parenthetically after a decade long battle, despite his many personal shortcomings, including two convictions, was eventually admitted to practice. Matter of Wiesner, 94 AD 3d 167, 943 NYS 2d 410, (1st Dept, 2012) see App Main Br p 47. In Re Ming (469 F2d 1352 [7th Cir 1972] cited by Resp Br 64) which times disbarment in case of a conviction at exhaustion of appellate remedies is contrary to New York Law which makes disbarment immediate upon conviction. Matter of Kaufmann, 245 N.Y. 423, 430, 157 N.E. 730 (1927); Matter of Ginsberg, 1 NY 2d 144, 134 NE 2d 193, 151 NYS 2d 361 (1956). Kourland, above all the criminal cases presents some interesting circumstances of criminal court melodrama, horse-trading, and bureaucratic comedy, but like Au and Sugarman is inapposite. No criminal activity is alleged to have occurred in this case. Matter of Dondi, (63 NY2d 331, 482 NYS 2d 431, 472 NE 2d 281[1984] Resp Br 63) concerned the subpoena by the Grievance Committee for a sealed record of an acquittal. Although there are no criminal charges in the instant case, 29 the court in Dondi reminded the Appellate Division to observe the written rules and to require record evidence to support any determination so that an exercise of discretion can be intelligently reviewed in order to protect the attorney`s right to due process. Dondi is interesting for purely local color. Attorney Philip Dondi was one of the targets of the infamous Maurice Nadjari probe which overflowed its original purpose and sought to root out evil everywhere by whatever means. See Matter of Dondi v. Jones, 40 NY2d 8, 386 NYS2d 4, 351 NE2d 650 (1976). Appellant’s Point in the main brief is that the rules have not been correctly read allowing unsanctioned expansion of the power of the Respondent. Under Cardozo’s determination in Matter of Rouss (221 NY 81, 116 N. E. 782, [1917] cited at Resp Br 50), an attorney could not exercise the privilege against self-incrimination. .The Rouss holding is no longer good law as the US Supreme Court has held that an attorney is indeed a first class citizen entitled to exercise rights on a par with other persons. Spevack v. Klein, (385 US 511, 87 S. Ct. 625, 17 L.Ed. 2d 574 [1967]) specifically held: ”[L]awyers also enjoy first- class citizenship.” The next block of cases cited concerns the whimsical cases where the purpose of the attorney or applicant appears to defy good sense. 30 In Matter of Brennan, (230 AD 218, 243 NYS 705 [2nd Dept 1930] cited at Resp Br 71), a curious follow who had graduated from St. John’s Law School whimsically declined to tell the Character and Fitness Committee who discovered America. The Committee recommended against admission. The Court determined that the Graucho Marx styled questions posed to applicant were inappropriate. While the instant appellant different, from Brennan, answered all questions posed to him, the only pertinence of the Brennan case appears to be the court’s observation that the Committee while honorable and well intentioned had exceeded the scope of the Committee’s authority. “It has in good faith passed on a province in which it does not belong. Neither this court nor its committee may assume authority which it has no right.” The court also observed that the obligation of uniform rules was to “avoi[d] different standards in the departments.” A major point in this case is that the fast and loose process of rendering cryptic decisions promotes disparate standards in the Departments. Some of the cases cited deal with purely quizzical situations. A certain indefatigable weirdness does abound in some of the colorful characters who seek admission to the bar. Law Students Civil Rights Research Council, Inc. v. Wadmond, (401 U.S. 154, 91 S. Ct. 720, 27 L. Ed. 2d 749, [1971] cited at Resp Br 51), considered a 31 complaint from various persons who might be candidates for admission to the bar. The prospective applicants objected to a requirement that they supply character references and that they affirm to support for the US Constitution. Unlike Law Students, there is no contention in this case that character references have not been supplied. Indeed the applicant has produced enviable, laudatory endorsements from a former Appellate Division justice, a former Appellate Term and Trial Term Justice and a former County Court Judge. Nor is there any contention in this case that Mr. Leo has not consistently supported Federal and State Constitutions. For reasons unknown a successful applicant in Matter of Pasik v. State Board of Law Examiners (102 A.D.2d 395, 478 N.Y.S.2d 270 [1st Dep't 1984] cited at Resp Br 73) after due admission to the bar sought to examine various files of The State Board of Law Examiners. This he could not do. In the instant case, appellant prays for a judgement on the merits on the basis of record evidence. He does not seek internal, confidential information. Matter of Anonymous v. Grievance Committee, (244 AD2d 549, 664 NYS2d 622 [2d Dept, 1997] cited at Resp Br 57-59) concerned the right of the Grievance Committee to appoint a subcommittee to hear evidence from an attorney who received a caution letter. Generally, the private bar regards such private 32 caution letters, even if unjustified, as matters to be endured with gritted teeth and disgruntled forbearance, but it is open to a true cavalier to seek vindication. However on the precise point at issue in Anonymous, by contrast, the instant appeal raises no contention in the present case that a subcommittee cannot receive evidence. Indeed in the court below appellant moved to confirm the sub- committee’s report insofar as it recommended reinstatement. (R 28) Different from Anonymous, the contention in this case is that any final conclusion in any determination by whomsoever made must as a matter of due process have evidentiary support and that the determination be free of errors of law. A number of other cases deal with different forms of constitutional challenges to Judiciary Law Sec 90 brought in Federal Court. Erdman v Stevens 458 F2d 1205 (2d Cir 1972) Resp Br 65; Wiesner v Nardelli, 06 Civ 3533 (HB) (SDNY 2007) Resp Br 59; Javits v. Stevens, 382 F Supp 131 (SDNY 1974) Resp Br 63 passim. Here, there is no challenge to Section 90 of the Judiciary Law. The challenge is to determinations contrary to law. Tang v Appellate Div (373 F Supp 800 [SDNY 1972] cited at Resp Br 50) was an attack on the residency requirement for admission formerly in Section 90. Residency requirements have been since declared unconstitutional. Supreme Court of NH v. Piper, 470 US 274, 105 S. Ct. 1272, 84 L. Ed. 2d 205 (1985); Supreme 33 Court of Va. v. Friedman, 487 US 59, 108 S. Ct. 2260, 101 L. Ed. 2d 56 (1988); Frazier v. Heebe, 482 US 641, 107 S. Ct. 2607, 96 L. Ed. 2d 557 (1987). Mr. Leo’s residency in Tennessee is not pleaded as a bar to reinstatement. Indeed, the subcommittee applauded Mr. Leo for commuting back and forth to pursue the nunc pro tunc orders resolving the fee allocation provision of his sales agreement. (R22- 23) There is at least one case Respondent cites that admonish adherence to the rules governing admission of attorneys. Matter of Shaikh (39 NY2d 676, 350 NE 2d 902, 385 NYS 2d 514 [1976] cited at Resp Br 70) dealt with the admission to the New York Bar of a Pakistani lawyer whom the Appellate Division regarded as unqualified. The Court held that the Appellate Division acted without authority in making such a determination. There are some cases cited that bear an extremely attenuated relationship to the issues involved. Moffat v. Cresap (33 AD2d 54, 304 NYS2d 719 [1st Dept., 1969] affd no op 29 NY2d 856, 328 NYS2d 6, 277 NE2d 926 [1971] cited at Resp Br 32) dealt with a partnership agreement which would have given a deceased partner a share of all work he had generated. Within the scope of the division of fees clause were 34 prospective probate work from nominated executors of not yet deceased clients who had left their wills with the firm for safe-keeping. The clause purported to distribute potential fees that might come from clients who did not yet exist. This, the court held, was not permissible. The purpose of the Leo agreement was to sell a practice and to thus ensure continuity of representation existing clients, not to share fees for clients who might engage “the new team” in some distant future. In Clark v Robinson (252 AD 857, 299 NYS 474 [2d Dept 1937] cited by Resp Br 32), the court barred enforcement of a referral agreement through an accounting proceeding where the referring attorney did nothing more than recommend the attorney who performed services. “[Plaintiff ] [who] expected to share only in the fees and not in defendant’s responsibility as attorneys [and who] contributed neither money nor property nor rendered services … [was] not entitled to an accounting in equity but [was] relegated to an action at law.” No sale of a practice was involved in the case. In the battle of the Brahmins, the High Court determined that under the course of dealing of a particular law partnership, good will was not a distributable asset upon dissolution of the firm, even though a law firm could indeed have good will. Dawson v. White & Case, 88 NY2d 666, 672 NE2d 589, 649 NYS2d 364 (1996) cited at Resp Br 44-45. Good will, the Court held, does indeed exist if the parties to the agreement says it does. This is a matter of freedom of contract, the very point appellant makes in his main brief, Point I. CONCLUSION The determination should be overturned and petition gra t~ n ;~ 35 M-! F. CL~NNA~~;:~~----·~ ~omey for Appellant 2206 Ocean A venue P.O. Box 1143 Ronkonkoma, NY 11779 ( 631) 588-6244