In Re Oliveras López De Victoria , 561 F.3d 1 ( 2009 )

United States Court of Appeals
For the First Circuit
Nos. 08-1879; 08-8040
IN RE RAFAEL OLIVERAS LÓPEZ DE VICTORIA,
Appellant/Respondent.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.
Rafael Oliveras López de Victoria pro se.
March 17, 2009
PER CURIAM. This case concerns the suspension of an
attorney from the practice of law in two consolidated reciprocal
discipline matters.
On January 24, 2008, the Supreme Court of Puerto Rico
indefinitely suspended attorney Rafael Oliveras López de Victoria
from the practice of law, finding he had violated Rules 35 and 38
of the Puerto Rico Professional Ethics Code. In re Oliveras López
de Victoria, 2008 TSPR 15 (P.R. 2008) (per curiam). The suspension
was based on findings that Oliveras López de Victoria had filed a
motion in a lawsuit to withdraw funds consigned in a lower court
for a client without mentioning his knowledge that his client had
died, which was a material fact. Oliveras López de Victoria
attempted to have the court issue two checks: one in favor of his
deceased client and another in his name. The Supreme Court found
that he had tried to mislead the lower court and that his
motivation was to collect his attorney's fees. Oliveras López de
Victoria was also found to have lied to the lower court by stating
that there were no minors involved in the case, even though he had
listed such a minor in an earlier inheritance action.
Eventually, Oliveras López de Victoria disclosed to the
lower court judge the death of his client and that there was a
minor involved. Confronted by that judge with his misstatements,
he did not deny making the misstatements, but attempted to excuse
them.
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Thereafter the Puerto Rico Attorney General filed a
disciplinary complaint with the Supreme Court, which appointed a
Special Commissioner to receive evidence and submit a report. The
Supreme Court relied upon the facts of record and that report.
The Supreme Court found Oliveras López de Victoria had
knowingly violated the Professional Ethics Code and rejected his
justification that this was a result of mere error and his
mitigation argument that he had been in poor health. The court
noted that Oliveras López de Victoria had used groundless
allegations before the Special Commissioner that his signature was
forged in an attempt to avoid the consequences of the disciplinary
proceeding. In light of the facts and considering that respondent
had had prior disciplinary action taken against him, the court
suspended him indefinitely from the practice of law.
On May 27, 2008, the U.S. District Court for the District
of Puerto Rico, under its reciprocal discipline procedures, see
D.P.R. R. 83.5(j), suspended Oliveras López de Victoria
indefinitely. The order stated that he would remain suspended from
the bar of the district court "until the Supreme Court of Puerto
Rico reinstate[d] him to the practice of law or otherwise
modifie[d] the indefinite suspension."
On July 11, 2008, we ordered Oliveras López de Victoria
to show cause why he should not similarly be disciplined before
this court. He responded by filing a brief and an appendix. He
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was required to provide English translations of documents in his
appendix. In January 2009, he filed a supplemental brief with the
translated documents.
Before us is both Oliveras López de Victoria's appeal
from the district court order of suspension and his response to the
order to show cause from this court. We heard oral argument from
Oliveras López de Victoria on March 2, 2009.
Oliveras López de Victoria argues that his due process
rights in his disciplinary proceedings in the Puerto Rican court
were violated. The purported violation is based on his argument
that the Puerto Rico Supreme Court was required in 2005 to grant
his motion to appoint a handwriting expert, and that if the court
had done so, the expert would have concluded that the signature on
the August 9, 2001 motion filed in the lower court was not his.
Furthermore, Oliveras López de Victoria claims his right to due
process was violated when the Supreme Court refused to reopen the
disciplinary proceedings after he later submitted to it reports
from an expert calligrapher, dated February 6, 2008 and September
19, 2008, which stated the signature on the motion in the lower
court was a forgery.
He also asks that this court disagree with the conclusion
of the Puerto Rico Supreme Court that the evidence he provided in
mitigation did not warrant imposition of a lesser discipline. The
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mitigating evidence was that he was very ill and frequently
hospitalized at the relevant times.
Oliveras López de Victoria also makes various arguments
that the Puerto Rico court overstated the factual findings, that
his errors were not grave, and that the sanctions imposed were not
commensurate with the discipline imposed in similar cases before
the Puerto Rico Supreme Court or the U.S. District Court for the
District of Puerto Rico. We have considered his arguments.
Our standards for imposing reciprocal discipline are
clear and are set forth in In Re Williams, 398 F.3d 116 (1st Cir.
2005) (per curiam). "As a general rule, discipline similar to that
imposed in the state court will be imposed in a reciprocal
proceeding," unless this court is persuaded
1. that the procedure used by the other court
was so lacking in notice or opportunity to be
heard as to constitute a deprivation of due
process; or
2. that there was such an infirmity of proof
establishing the misconduct as to give rise to
the clear conviction that this Court could
not, consistent with its duty, accept as final
the conclusion on that subject; or
3. that the imposition of substantially
similar discipline by this Court would result
in grave injustice; or
4. that the misconduct established is deemed
by the Court to warrant different discipline.
Id. at 119 (quoting 1st Cir. R. Att'y Discip. Enf. (Discip. R.)
II.C); see also Fed. R. App. P. 46(b)(1)(A).
Moreover,
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[w]here . . . action against an attorney is
based on the imposition of discipline by a
state court, the ultimate decision of the
state court as to the type and kind of
discipline meted out is "not conclusively
binding" on this court. Nevertheless, this
court is without jurisdiction, in a federal
disciplinary proceeding, to disturb the state
court's imposition of discipline, and the
state court's substantive findings ordinarily
are entitled to a high degree of respect when
this court is asked to impose reciprocal
discipline.
In re Williams, 398 F.3d at 118 (citations omitted) (quoting In re
Ruffalo, 390 U.S. 544, 547 (1968)).
Ultimately, the burden is on Oliveras López de Victoria
to show, "by clear and convincing evidence, that the imposition of
substantially similar discipline is unwarranted." In re Barach,
540 F.3d 82, 85 (1st Cir. 2008) (per curiam).
None of the conditions which would warrant our imposing
no discipline or different discipline have been met here. See
Discip. R. II.C. There was no denial of due process; respondent
had full notice and opportunity to be heard. There was no due
process violation in the Supreme Court's rejection of his last
minute about-face, claiming for the first time that he did not sign
the motion. Indeed, as the Supreme Court noted, that effort
undermined his own claim. There was no question of proof as to the
misconduct -- respondent admitted misconduct before the lower court
and only later made a last ditch effort to shirk responsibility by
claiming his signature was forged. There is no grave injustice
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involved in honoring Puerto Rico's own choice of discipline, and we
have no reason to impose a lesser discipline.
We also review the district court's decision to impose
discipline for abuse of discretion. See In re Zeno, 504 F.3d 64,
66 (1st Cir. 2007) (per curiam). The district court did not abuse
its discretion by imposing reciprocal discipline on Oliveras López
de Victoria.
We affirm the district court's imposition of discipline.
We impose a suspension from the bar of this court until the Supreme
Court of Puerto Rico reinstates Oliveras López de Victoria to the
practice of law or otherwise modifies the indefinite suspension.
Oliveras López de Victoria may apply for reinstatement in the
federal court system if the Supreme Court of Puerto Rico alters his
status.
So ordered.
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