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GERSHENFELD v. SUPREME COURT OF PENNSYLVANIA

August 19, 1986

GEORGE GERSHENFELD
v.
JUSTICES OF THE SUPREME COURT OF PENNSYLVANIA, NIX, HONORABLE ROBERT N.C. JR., LARSEN, HONORABLE ROLF, FLAHERTY, HONORABLE JOHN P., McDERMOTT, HONORABLE JAMES T., HUTCHINSON, HONORABLE WILLIAM D., ZAPPALA, HONORABLE STEPHEN A., PAPADAKOS, HONORABLE NICHOLAS P. and THE MEMBERS OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA, ELLIOTT, JOHN M., SWARZMAN, JAMES C., KECK, PROFESSOR WINFIELD, CURREN, JAMES J. JR., HELWIG, GILBERT, McDONALD, JAMES J. JR., McGINLEY, JOHN R., MUNDY, JAMES F., DOUGLAS, GEORGE F. JR., BROWN, BYRD R., HEH JUDITH, PADOVA, JOHN R., TUMOLO, JOHN A.



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 On April 16, 1986, the Office of Disciplinary Counsel of the Supreme Court of Pennsylvania filed a petition before that court for emergency interim suspension and related relief against attorney George Gershenfeld pursuant to Pennsylvania Rule of Disciplinary Enforcement ("Pa.R.D.E.") 208(f). On May 2, 1986, plaintiff Gershenfeld filed an answer to the petition and a motion to dismiss. On May 28, 1986, without argument or hearing, the Supreme Court of Pennsylvania, pursuant to Pa.R.D.E. 208(f) ordered that plaintiff be suspended from the practice of law, forthwith, and in the words of its order, "until further definitive action by [the Supreme Court of Pennsylvania]." That order also directed plaintiff to immediately notify all of his clients of his suspension and to deliver a list of the names and addresses of all of his clients to the Office of Disciplinary Counsel immediately. At the time of the entry of this order the plaintiff was 65 years of age, had practiced law for 35 years and to the extent disclosed on the record before this court, had never been disciplined as an attorney.

 On June 12, 1986, plaintiff filed the present federal action seeking declaratory and injunctive relief from the state court order. A preliminary injunction hearing was held on June 26, 1986, and following argument on the issues this court issued a bench opinion finding Rule 208(f) to be in violation of the Due Process Clause of the Fourteenth Amendment in that the rule did not provide for a prompt postdeprivation disposition of the disciplinary charges against plaintiff. Accordingly, this court enjoined the state from enforcing Rule 208(f) which rendered its order of May 28, 1986 suspending plaintiff a nullity. Later that same day at about 4:00 P.M. the court convened a second hearing on defendants' oral motion seeking a stay of the preliminary injunction. Following hearing and argument the court rendered a second bench opinion denying defendants' motion.

 The very next day, June 27, 1986, the United States Court of Appeals for the Third Circuit stayed this court's order. The appellate court's order did not set forth its reasons probably because it did not have before it the complete record upon which this court granted the preliminary injunction. In particular, the court of appeals did not have the transcript of the argument upon which this court based its preliminary injunction decision, nor did it have a transcript of the court's second bench opinion setting forth the court's reasons for denying defendants' oral motion for a stay. The reason the court of appeals did not have these materials is because it was not possible to have them transcribed between the time they were made in the district court on June 26th as late as 4:30 P.M. and the time set by the court of appeals for consideration of defendants' motion for a stay. *fn1"

 The June 27th stay order stated, in pertinent part:

 
Appellant's motion to stay is granted, the matter will be scheduled for a conference on or before July 2, 1986, at which time it will be decided . . . whether the stay will be continued. (Emphasis added).

 Because no conference was called by July 8, 1986, plaintiff filed a motion to dismiss the June 27th stay. On July 9, 1986, the court of appeals entered an order which stated, in pertinent part:

 
The stay entered on June 27, 1986, will be continued for 30 days in order to afford the Pennsylvania Court system an opportunity to provide George Gershenfeld, Esquire, a hearing.
 
. . . indicates only that a hearing related to the interim suspension should be provided . . . The Circuit Court implicitly rejected this Court's opinion that the required hearing must be one which would facilitate the final disposition of the matter.

 See Petition of Office of Disciplinary Counsel to Intervene, Misc. No. 86-280 at pp. 3-4. Even though this court does not know for certain what the court of appeals had in mind when it ordered a state hearing without further description, it is inconceivable that it intended such a limited hearing as the state contends. To do so affronts the clear command of Barry v. Barchi, infra, which requires a prompt dispositional hearing on the merits of the underlying allegations against the plaintiff in circumstances such as this. The court of appeals could only have intended a full dispositional hearing on the merits of the disciplinary charges included in the petition for emergency interim suspension.

 Despite the compelling reasonableness of this view, the Pennsylvania Supreme Court, in response to the court of appeals' July 9th order, entered its own order on July 14, 1986, which stated, in pertinent part:

 
The Chairman of the Disciplinary Board of the Supreme Court of Pennsylvania is hereby directed to appoint one (1) member of the Disciplinary Board to conduct a hearing where Disciplinary Counsel shall present evidence demonstrating that the continued practice of law by respondent shall constitute an immediate and substantial public or private harm. Respondent shall have the right to be present, represented by counsel, cross-examine witnesses, and present evidence demonstrating that his continued practice of law shall not constitute an immediate and substantial public or private harm. . . .
 
Following the conclusion of the hearing, a recommendation either that the Order of this Court of May 28, 1986, be continued or rescinded shall be filed with this Court.
 
The hearing shall take place forthwith and the recommendation shall be filed with this Court within five (5) days after the hearing or in any event not later than August 1, 1986.

 Pursuant to this order, Disciplinary Board member Gilbert J. Helwig was designated to convene the hearing and set forth his recommendation to the Pennsylvania Supreme Court. *fn2" Hearings were held before Mr. Helwig on July 22, July 23, July 28, and July 29, 1986. In accordance with the state supreme court's order that the recommendation be submitted "not later than August 1, 1986," Mr. Helwig submitted his recommendation to the Supreme Court of Pennsylvania on August 1, 1986.

 On the basis of the testimony and evidence presented at these hearings, Disciplinary Board member Helwig concluded, to the surprise of some:

 
a. While the evidence may support a determination by the ultimate finder of facts in this matter that Respondent has been guilty of serious violations of disciplinary rules, there are substantial differences in the testimony respecting these matters which could ultimately be determined in Respondent's favor. For this reason, the designated Board Member believes that the evidence does not demonstrate that the ...

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