Application Filed with the U.S. Supreme Court Challenges the Constitutionality of the Standard of Proof Used to Disbar Attorneys and Other Professionals by the State of New York.

WASHINGTON -- New York State's "Preponderance of the Evidence" Standard Out of Synch with the Vast Majority of the State and Federal Courts that License Attorneys

Israel Weinstock, a former New York attorney, who asserts he has been unjustly disbarred after practicing law for 42 years with an unblemished record, has filed an application with the U.S. Supreme Court today which challenges the standard of proof established by the New York Court of Appeals to sanction, suspend or disbar an attorney in disciplinary proceedings.

In attorney disbarment proceedings, The New York Court of Appeals requires the application of only the lowest standard of proof, the "more likely than not" preponderance of the evidence standard-the same standard employed in civil cases involving money or property. Mr. Weinstock argues that the evidentiary standard used by New York denies licensed professionals due process.

The overwhelming majority of states and federal courts that license attorneys and many common law jurisdictions including England, Canada and Australia have universally rejected this minimal evidentiary standard as applied to attorney disciplinary proceedings. These jurisdictions require clear and convincing evidence of misconduct. Mr. Weinstock argues that the standard for such proceedings should be "clear and convincing evidence" which mandates that the thing to be proved is highly probable or reasonably certain. This is a greater burden of proof than "preponderance of the evidence," but less than "evidence beyond a reasonable doubt."

In his Supreme Court application, Mr. Weinstock asserts that because of the importance of the interest involved, due process requires clear and convincing evidence of professional misconduct. He further asserts that the preponderance of the evidence standard is woefully insufficient, as it does not require the trier of facts to feel assured of the correctness of his findings, but only to weigh the probabilities. Thus, to make in terrorem findings against an attorney under that standard, the trier of facts must only believe that it is more likely than not that the facts are true. Mr. Weinstock asserts that a higher standard of proof is constitutionally required to reflect society's concern that a lower burden of proof necessarily makes a mistake more likely.

Mr. Weinstock's position is supported by the American Bar Association, which since 1984 has recommended the adoption of the clear and convincing evidence standard to attorney disciplinary proceedings. Mr. Weinstock cites a case in the U.S. Circuit Court for the Second Circuit which covers New York State as well as other adjoining States, which stated "there are 'troublesome aspects' inherent in imposing sanctions, specially when the Trial Court 'may act as accuser, fact finder, and sentencing judge, not subject to restrictions of a procedural code.'" Mackler Productions, Inc. v. Cohen, 146 F. 3d 126, 128 (2d Cir. 1998).

The application to the U.S. Supreme Court raises a further significant point regarding fundamental fairness: New York Bar counsel filed a "confidential" memorandum with the Appellate Division, without any notice to Weinstock, without his knowledge of its contents or without a clue as to who authored that memorandum, which Weinstock has not been permitted to examine. Weinstock was disbarred by the New York Supreme Court, Appellate Division, Second Department, which similarly acted as the accuser, fact finder and sentencing tribunal in a proceeding that Weinstock compares to "a Star Chamber proceeding."

By utilizing the preponderance of the evidence standard, the New York State Court disbarred Mr. Weinstock without any evidentiary hearing and thus precluded Mr. Weinstock from presenting any evidence whatsoever relating to the facts that led to his disbarment. In an interview, Mr. Weinstock noted that the person who filed the complaint against him had confessed that the complaint was fabricated in order to deprive Weinstock of substantial properties while Weinstock was thought to be dying of cancer.

While the application to the U.S. Supreme Court argues that the standard of proof required for an in terrorem findings of attorney misconduct is clear and convincing evidence, a favorable ruling will also affect other licensed professional fiduciaries accused of professional misconduct such as accountants, physicians, securities dealers and teachers.

Mr. Weinstock does not concede that the Grievance Committee met even the lowest standard of proof, the "more likely than not" preponderance of the evidence standard. "Indeed," said Mr. Weinstock, "the evidence clearly establishes that the disciplinary charges against me where concocted and that the Grievance Committee know that the charges where fabricated but instituted the proceeding to protect politically very powerful interests." Mr. Weinstock is represented by civil rights Attorney Robert S. Catz of Washington, D.C. as well as by civil rights Attorney John E. Herbison of Nashville, Tennessee. The Supreme Court will consider this case during its current term.