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In re Isserman

Decided: June 30, 1961.

IN THE MATTER OF ABRAHAM J. ISSERMAN, PETITIONER


For granting -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For denial -- None. The opinion of the court was delivered by Weintraub, C.J.

Weintraub

[35 NJ Page 199] Petitioner represented one of 11 Communist Party leaders in their trial in the United States District Court for the Southern District of New York for violation of the Smith Act, 18 U.S.C.A. ยง 2385. See Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951). At the end of the trial, the presiding judge signed a certificate adjudging petitioner and other counsel guilty of contempt. United States v. Sacher, 9 F.R.D. 394 (D.C.S.D.N.Y. 1949). Petitioner was

sentenced to a term of four months. His conviction was affirmed except as to the charge that he and the other respondents had conspired to commit the acts with which they were severally charged in the remaining specifications. United States v. Sacher, 182 F.2d 416 (2 Cir. 1950), affirmed, 343 U.S. 1, 72 S. Ct. 451, 96 L. Ed. 717 (1952). The affirmances in the Court of Appeals and the United States Supreme Court were by divided votes, the lines of cleavage being the procedural questions whether the trial judge should himself have decided the contempt charge and properly refused to afford a hearing.

At that stage, our court disbarred petitioner. In re Isserman, 9 N.J. 269 (1952), rehearing denied, 9 N.J. 316 (1952). Now before us is his application for reinstatement.

I.

In essence, the petition claims disbarment was too harsh a judgment and seeks a reappraisal. Such petitions rarely succeed. The reason is that we disbar only if thoroughly convinced the misconduct reveals a lack of the required trust and responsibility. None of us sat in the earlier proceeding, but our predecessors were no less sensitive to the awesome impact of a final severance. Judges of course disagree, and the view of a single judge may indeed change with time. But in the nature of things there cannot be a routine of re-evaluation of disciplinary matters. Ordinarily we should entertain an application only upon a showing of impressive circumstances unknown to the judges who rendered the verdict.

We are satisfied this case meets the standard we have described. Specifically, we refer to events which occurred after this court's judgment was entered and which seriously question the justice of it.

Isserman sought a review of our judgment by the United States Supreme Court. Certiorari was denied, Isserman v. Ethics Committee, 345 U.S. 927, 73 S. Ct. 706, 97 L. Ed.

1357 (1953), but two justices voted to grant, saying our court denied due process by accepting the certificate of the trial judge without affording Isserman "an opportunity to confront his accusers and present evidence to deny, explain or extenuate the charges against him."

Three days later the United States Supreme Court decided its own proceeding to disbar Isserman. The then rule of that court provided that an attorney disbarred from practice in any state shall be disbarred unless "he shows good cause to the contrary." Isserman's disbarment was ordered by a vote of 4 to 4. Re Isserman, 345 U.S. 286, 73 S. Ct. 676, 97 L. Ed. 1013 (1953). After pointing out that the Federal Supreme Court does not conduct its own examinations but rather depends upon the state authorities, the opinion supporting the order concluded Isserman failed to sustain the burden placed upon him by the rule. Four members of the court found he had. Stating they should not accept "a doctrine that conviction of contempt per se is ground for a disbarment" (345 U.S., at p. 292, 73 S. Ct., at p. 679, 97 L. Ed., at p. 1018), they went behind the conviction and summed up the case in these words (345 U.S., at p. 294, 73 S. Ct., at p. 680, 97 L. Ed., at p. 1019):

"We would have a different case here if the record stood that Isserman, with others, entered into a deliberate conspiracy or plans to obstruct justice. But that charge has been found by the Court of Appeals to lack support in the evidence, and again in the disciplinary proceeding in District Court it was not found to be proven. What remains is a finding that he was guilty of several unplanned contumacious outbursts during a long and bitter trial.

Perhaps consciousness of our own short patience makes us unduly considerate of the failing tempers of others of our contentious craft. But to permanently and wholly deprive one of his profession at Isserman's time of life, and after he has paid so dearly for his fault, impresses us as a severity ...


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