In the Matter of the Complaint Against PAUL GOLDBERG 2861 Somerset Drive at Lauderdale Lakes, FL 33311-1921 and THE YELLOW PAGES, INC. P. O. Box 370769 at Miami, FL 33137-0769 and THE YELLOW PAGES Main Facility P. O. Box 24965 at Ft. Lauderdale, FL 33307-4965 P.S. Docket No. 20/176; 02/26/86 Cohen, James A. APPEARANCES FOR COMPLAINANT: H. Richard Hefner, Esq. Don A. Potter, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112 APPEARANCE FOR RESPONDENT: Paul Goldberg 2861 Somerset Drive Lauderdale Lakes, FL 33311-1921
Respondents have appealed from an Initial Decision of an Administrative Law Judge, finding that Respondents are in violation of 39 U.S.C. ??3001(d) and 3005(a). Specifically, the Administrative Law Judge found that Respondents seek remittances through the mail by means of solicitations in the guise of invoices, bills, or statements of account due, which are in violation of 39
U.S.C. § 3001(d) and that Respondents are engaged in conducting a scheme or device for obtaining money through the mail, by means of materially false representations, in violation of 39 U.S.C. § 3005(a). In their appeal, Respondents have requested a new hearing alleging that their attorney (1) failed to take depositions of witnesses prior to the hearing, (2) denied Mr. Goldberg's request to testify in his own defense, and (3) was the prepared due to inadequate research and was ineffective in oral argument. Respondents have presented no argument, evidence or citation of authority to support their request for a new hearing.
The record reflects that Respondents were initially represented by counsel who sought to withdraw as attorney of record because of "irreconcilable differences with the client" (Motion to Withdraw filed June 3, 1985). Subsequently, the same counsel filed a notice of appearance and Respondents confirmed that they would be represented by such counsel (Notice filed June 18, l985 and confirmation dated July 1, l985). Counsel made filings on Respondents' behalf, engaged in discovery and appeared at the hearing and examined and cross-examined witnesses. Following the hearing, counsel again filed a motion to withdraw because "Respondents have continually failed to follow the advice of counsel" (Motion filed July 31, l985). Counsel's motion was granted and Respondents have represented themselves through the remainder of the proceeding.
In order to obtain a new hearing based upon ineffective counsel, Respondents must show the probability of a favorable decision with proper representation. Cf. Strickland v. Washington, 466 U.S. 668 (1984). Conclusory allegations and/or mere disagreement with trial strategy is insufficient to establish a right to a new hearing. Sallie v. North Carolina, 587 F.2d 636 (4th Cir. l978); cert denied 441 U.S. 911 (l979). Respondents are required to point out with specificity and supporting documentation how the failures of counsel affected the outcome of the case. Cf. Davison v. Oklahoma, 428 F.Supp 34 (W.D. Okla. 1976); Francis v. California, 326 F.Supp 83 (C.D. Cal. 1971).
Respondents failure to support their allegations with argument or evidence makes it difficult to examine the merits of their position. In the absence of such support, it cannot be concluded that it is probable that counsel's failure to take depositions or his refusal to permit Mr. Goldberg to testify would have made any substantive difference in the outcome of this case. Neither can it be concluded that further research or additional oral argument would have affected the outcome of the Initial Decision. Moreover, despite "irreconcilable differences" with counsel during the pleading stage of this proceeding, Respondents voluntarily elected to have counsel continue to represent them through the hearing. Only after they received an adverse decision did Respondents allege that they were not properly represented.
The entire record has been reviewed. Based on this review it is concluded that there is little likelihood that this case would have been decided differently had Respondents engaged different counsel. Accordingly, Respondents are not entitled to a new hearing.
Moreover, the record supports the Administrative Law Judge's conclusion that Respondents are in violation of 39 U.S.C. § 3001(d) and § 3005(a). The Orders sought in the Complaint and authorized by 39 U.S.C. § 3005(a) are issued herewith.