In Re: Attorney v. ( 1996 )

No. 95-1799
*
*
In re: ATTORNEY * Appeal from the United States
DISCIPLINE MATTER * District Court for the
* Eastern District of Missouri.
*
*
Submitted: September 12, 1996
Filed: October 24, 1996
Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, and ROSS,
Circuit Judges.
FLOYD R. GIBSON, Circuit Judge.
On February 9, 1995, the United States District Court for the
Eastern District of Missouri ordered attorney P.S. ("appellant")1 to
surrender his license and relinquish his enrollment in the district court
following a similar disbarment by the Supreme Court of Missouri. On
appeal, appellant argues that the district court erred in imposing
discipline identical to that of the Supreme Court of Missouri because the
Missouri court made factual findings which were precluded under the
doctrine of collateral estoppel. Appellant also argues that the district
court abused its discretion when it reciprocally disbarred him because:
(1) the Missouri disbarment order was not supported by adequate proof; (2)
the established misconduct warranted substantially different discipline;
and (3) the imposition of identical discipline resulted in grave injustice.
For the reasons set forth below, we affirm the district court's judgment.
1
Because the case is under seal, we refer to all parties by
generic names or letters of the alphabet.
I. BACKGROUND
Appellant was a member of the bars of Illinois and Missouri.
Appellant represented a woman ("D.G.") in an Illinois divorce case in which
the custody of D.G.'s daughter was at issue. J.M., a witness for D.G.'s
spouse, testified that in October 1986, he and D.G. engaged in sexual
intercourse in a motel room in the presence of D.G.'s young daughter.
Surprised by the damaging testimony, appellant requested a recess to
discuss the matter with his client. Apparently unbeknownst to anyone, the
court reporter inadvertently left her tape recorder running. Appellant and
D.G. remained in the otherwise empty courtroom to discuss J.M.'s testimony.
During the recess, the following conversation between appellant and D.G.
was recorded:
APPELLANT: What about this business about the booze
though? What about the business about the [motel]? Did that
happen?
D.G.: Yeah, it happened.
APPELLANT: God-damn. What were you thinking about?
D.G: She was only three months -- I mean 18 months. I
couldn't leave him. I don't know. I don't know.
APPELLANT: You better deny this. Eighteen months old,
Jesus. (emphasis added)
D.G.: Well, she wasn't even 18 months in '86. She was
a little bitty baby. She was still in diapers. She was born
in '85, in '84, December of '84. In '85, she was about a year,
but I was not seeing him in '86 because right after the court
date, right after my court date, me and [D] still were talking,
and I did see him then.
APPELLANT: So, that didn't happen in October of '86?
D.G.: No, it wouldn't have been October.
APPELLANT: You better deny this, buddy. You better deny
it. What about the liquor situation? You told me you didn't
even drink. (emphasis added)
2
* * *
APPELLANT: Yeah, but I think the thing that hurts you is
taking the kid in the room and screwing with the kid in the
room. He said that you two had sex in the bed next to your
kid, your little kid that was in the other bed. You're going
to have to do something with it. (emphasis added)
D.G.: What can I do with it that won't make it seem like
I'm lying? (emphasis added)
APPELLANT: I don't know. That's up to you. It could be
your word against his. It's up to you. (emphasis added)
D.G.: Are you saying if I deny it then -- (emphasis
added)
APPELLANT: If you said it didn't happen, it didn't
happen. (emphasis added)
D.G.: I remember it happening in '86. It seemed to me
she was in diapers. She was little. I've left him so many
different times, except the first time I filed was in '85,
right? (emphasis added)
APPELLANT: Yeah, but think of your judgment like that,
screwing some guy in a motel room with your daughter in the
other bed next to you. She recognized her mother, didn't she?
D.G.: Well, she was little bitty. We're talking about
little. We're talking about pampers.
APPELLANT: Well, what are you going to say about that?
Are you going to deny that or not?
D.G.: I don't know.
APPELLANT: Hum?
D.G.: I don't know.
APPELLANT: Well, it's up to you. It's up to you. Well,
you're telling the truth when you say it didn't happen in '86.
Okay.
D.G.: I don't remember it happening in '86, no.
APPELLANT: This guy crucifies you.
3
D.G.: I know.
After the recess, D.G. testified to the following on direct examination:
APPELLANT: Okay. Now, in 1986, why -- what would
possess him to tell that you went to a motel with him, with
your daughter?
D.G.: I don't know.
APPELLANT: Did you think he was your friend?
D.G.: Yes.
APPELLANT: What was the situation with him when you met
[D] when you were separated? Were you going out with [J.M.]?
D.G.: No, I wasn't.
APPELLANT You dumped him for [D]?
D.G.: No, I wasn't dating anyone.
APPELLANT: You weren't dating anyone?
D.G.: No.
APPELLANT: Do you ever -- under oath now, do you ever
remember going to a motel with your daughter with [J.M.]?
(emphasis added)
D.G.: No. (emphasis added)
APPELLANT: That's a lie, isn't it?
D.G.: Yes.
APPELLANT: What would possess him to tell that?
D.G.: I don't know . . . .
The following exchange occurred on cross-examination of D.G.:
OPPOSING COUNSEL: And, you were saying that this
relationship just ended at your marriage?
4
D.G.: I did.
OPPOSING COUNSEL: Okay. And, everything that he is
saying after that about any sort of relationship is totally
fabricated?
D.G.: I wouldn't say fabricated, no. We did talk.
OPPOSING COUNSEL: You did go out?
D.G.: After my separation . . . when I filed for my
divorce.
OPPOSING COUNSEL: But, you did go out?
D.G.: We went riding. We went shopping.
OPPOSING COUNSEL: This was all platonic?
D.G.: Yes.
OPPOSING COUNSEL: So everything he said today was just
fabricated --
APPELLANT: Objection, some of it wasn't fabricated. The
motel incident she said was fabricated. (emphasis added)
OPPOSING COUNSEL: Everything relating to a sexual nature
after 1984 was fabricated, correct?
D.G.: Yes.
The recorded colloquy between appellant and D.G. and the testimony
that followed formed the basis for criminal and disciplinary proceedings
against appellant. The State of Illinois filed charges against appellant
for perjury and subornation of perjury. Following a non-jury trial, he was
acquitted. A hearing panel for the Disciplinary Commission of the Illinois
Bar concluded that appellant violated several disciplinary rules and
recommended that the Supreme Court of Illinois suspend him from practice
for two years. Appellant consented to the panel's report and
recommendation, and the Supreme Court of Illinois suspended appellant for
a two-year period beginning September 29, 1992. On October 15, 1992, the
chief disciplinary counsel of Missouri
5
commenced a disciplinary proceeding against appellant under Missouri
Supreme Court Rule 5.19, which allows the Court to discipline attorneys
based on disciplinary adjudications of other jurisdictions, provided the
attorney is given an opportunity to show cause why the Supreme Court of
Missouri should not impose similar discipline. In a decision entered March
22, 1994, the Supreme Court of Missouri disbarred appellant.2
On June 20, 1994, the United States District Court for the Eastern
District of Missouri, pursuant to Local Rule 2(I), issued an order
directing appellant to show cause in writing within thirty days why the
district court should not impose discipline identical to that imposed by
the Supreme Court of Missouri. On July 11, 1994, appellant filed a reply
entitled "Show Cause" Application. The "Show Cause" Application requested
that the district court suspend appellant for two years in accordance with
the decision of the Supreme Court of Illinois, rather than disbar him in
accordance with the Missouri discipline. The district court denied this
request and entered an order disbarring appellant from the United States
District Court for the Eastern District of Missouri.3
II. DISCUSSION
The first issue on appeal is whether the district court erred when
it reciprocally imposed discipline based on the Supreme Court of Missouri's
disbarment order. Appellant contends that the Supreme Court of Missouri
was collaterally estopped from reviewing the nature of appellant's intent
when he asked the following question on direct examination:
APPELLANT: Do you ever -- under oath now, do you ever remember
going to a motel with your daughter with [J.M.]?
2
In re Storment, 873 S.W.2d 227, 231 (Mo. 1994).
3
In re Storment, No. 4:94MC00143 (E.D. Mo. Feb. 9, 1995).
6
(emphasis added)
No. (emphasis added)
ellant, Judge Riley stated
that "[t]he question
whether something happened or did not happen." State v. Storment
CF-1001, slip op. at 4 (St. Clair County Circuit Court June 24, 1991)
However, d
answer [D.G.] had never been to a motel with
her his recess consultation, [appellant] knew
this was not true." , 873 S.W.2d at 230. According to appellant,
question was not intended
to e
factual d
discipline based on the Supreme Court of Missour
with appellant's contention.
The Unite
shall be given in each State to the . . . judicial Proceedings of ever
other State." C . art. IV, § 1. Thus, the Constitution required
the Supreme Court of Missouri to give the Illinois "judgment [of acquittal]
least the res judicata which the judgment would be accorded in
[Illinois]." Durfee v. Duke d
under Illinois law th
attorney d
upon In re Ettinger, 538 N.E.2d 1152
1160 (Ill In re Browning, 179 N.E.2d 14, 17-18 (Ill
1962)). In , the Supreme Court of Illinois distinguished criminal
proceedings from those which are
4
Similarly, an acquittal of criminal charges does not ba
disciplinary action based on underlying conduct in Missouri. In re
Sympson
7
disciplinary in nature:
The rationale underlying this rule is the differing purposes of
criminal as opposed to disciplinary proceedings. While the
purpose of a criminal prosecution is to punish the wrongdoer,
the purpose of a disciplinary proceeding is to determine
whether an individual is a proper person to be permitted to
practice law. . . . Additionally, the burden of proof in the
two proceedings is different. In a criminal prosecution,
charges must be established beyond a reasonable doubt; in a
disciplinary proceeding charges need be proved by clear and
convincing evidence. In this respect, evidence deemed
insufficient to convict an attorney on criminal charges may be
sufficient to show a deviation from required standards of
professional conduct, warranting disciplinary action.
Ettinger, 538 N.E.2d at 1160 (citations omitted). In appellant's criminal
case, the prosecution was required to prove beyond a reasonable doubt that
appellant's conduct amounted to subornation of perjury. However, in
appellant's Missouri disciplinary proceeding his violation of the Missouri
Rules of Professional Conduct only had to be established by a preponderance
of the evidence. In re Littleton, 719 S.W.2d 772, 775 (Mo. 1986). Because
Missouri courts need give to the judgment only the res judicata effect
given by other Illinois courts, the Supreme Court of Missouri was not
prevented from considering the conduct underlying the Illinois acquittal.
Durfee, 375 U.S. at 109. Just as the differing burdens of proof would have
enabled the Illinois disciplinary tribunal to examine the conduct
underlying appellant's criminal proceedings, Ettinger, 538 N.E.2d at 1160,
the differing burdens of proof allowed the Supreme Court of Missouri to
make an independent consideration of whether appellant's conduct violated
the Missouri Rules of Professional Conduct. Id. Therefore, the Supreme
Court of Missouri was not collaterally estopped from considering what
appellant's intent was when he asked D.G. if she remembered going to a
motel with J.M. Consequently, the district court did not commit error when
it imposed discipline based on the
8
Supreme Court of Missouri's disbarment order.
The nd issue on appeal is whether the district court committed
when it recognized the Supreme Court of Missouri's disciplinar
action by imposing reciprocal discipline. When reviewing a distric
court's disciplinary order, we will reverse
of disc In re Olkon, 795 F.2d 1379, 1381 (8th Cir
1986); , 577 F.2d 30, 32 (8th Cir. 1978). The district
disbarred appellant under Local Rule 2(I)(4), which at the tim
provided:
(4) s
Cou shall impose the identical discipline unless the
pondent-attorney demonstrates, or this Court finds, tha
upon the n
another jurisdiction is predicated it clearly appears:
so lacking in notice or
opportunity to be heard as to constitut
due process; or
(b) f
establishing
conviction that this court could not, consistent with its
as final the conclusion on that subject; or
(c) that the imposition of the same discipline by
(d) that the misconduct established is deemed b
this Court to warrant substantially different discipline.
Missouri t
contends that the district court's failure to in
and (d) of Rule 2(I)(4) amounted to an abuse of discretion. We disagree.
h] a lawyer is admitted into a federal court by way of
state court, he is not automatically sent out of the federal court by the
route." , 354 U.S. 278, 281 (1957). Each
discipline members of its bar. Id. ("[T]he federal judiciary . . .
have autonomous control over the conduct of their officers . . . .");
Harlan v. Lewis, 982 F.2d 1255, 1259 (8th Cir.) ("The existence in the
federal courts of an inherent [disciplinary] power necessary to the
exercise of all others is firmly established.") (citation and quotation
omitted), cert. denied, 510 U.S. 828 (1993); In re Rhodes, 370 F.2d 411,
413 (8th Cir.) ("Any court which has the power to admit attorneys to
practice has the authority to disbar or discipline attorneys for
unprofessional conduct.") (citations omitted), cert. denied, 386 U.S. 999
(1967). While state court disciplinary action is "'not conclusively
binding on the federal courts,'" federal courts must give a high level of
respect to state court disbarment proceedings. In re Randall, 640 F.2d
898, 901 (8th Cir.) (quoting Theard, 354 U.S. at 282), cert. denied, 454
U.S. 880 (1981). Thus, a district court, when determining whether to
discipline a member of its bar consistent with a state disciplinary
adjudication, may impose reciprocal discipline unless, after an independent
consideration of the record, the court finds (1) a deprivation of due
process; (2) a lack of adequate proof establishing misconduct; or (3) that
the imposition of reciprocal discipline would result in grave injustice.
Selling v. Radford, 243 U.S. 46, 51 (1917); Randall, 640 F.2d at 901.
Local Rule 2(I)(4)(d) additionally requires the district court to break
from the state court's order when the misconduct "warrant[s] substantially
different discipline."
A. Adequate Proof to Establish Misconduct
Appellant contends that the recorded colloquy between him and his
client merely demonstrated "the sort of questioning of a client and venting
of emotions" one would normally exhibit when confronted with surprising and
damaging testimony. To the contrary, it is not normal or acceptable for
an attorney to counsel his client to deny damaging testimony without regard
for its truth or falsity. Appellant's first question of D.G. was whether
the incident at the
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motel occurred. D.G.'s immediate response was, "Yeah, it happened." After
brief attempt to defend her actions to her attorney, appellan
responded, "You better deny this." When appellant counseled his client to
the damaging testimony, he had no reason to believe the incident at
ed by the Supreme Court of
Missouri, appellant c
of Missouri Rule of Professional Conduct 3.4(b). , 873 S.W.2d at
230.
, during direct testimony of D.G., the following questionin
transpired:
APPELLANT Do you ever -- under oath now ever
ember going to a motel with your daughter with [J.M.]
(emphasis added)
D.G.: (emphasis added)
In the recorded conve
immediately prior to this line of
implied ever taken place. There was
substantial amount of confusion about when
a denial of its occurrence.
that "[t]he question and the answer were designed to prove that [D.G.] had
been to a motel with her daughter and [J.M.] From his reces
consultation, [appellant] knew this was not true." Accordingly, the
Supreme Id. at 231. There wa
adequate if not overwhelming proof of appellant's misconduct. Therefore,
district court did not abuse its discretion in refusing to invoke loca
rule 2(I)(4)(b).
B. Misconduct Warranting Substantially Different Discipline
11
nt discipline than that imposed by the Supreme Court
of First, appellant argues that the factual
findings of the court were precluded by the doctrine of collateral estoppel
were insubstantial. We discussed and rejected this reasoning above.
cond, appellant asserts that his disbarment is inconsistent wit
the discipline imposed in , 825 S.W.2d 847 (Mo. 1992),
rney misconduct case. The Supreme Court of Missouri
no doubt reviewed both of these cases carefully and found that one
warranted a six-month suspension, Id.
another attorney's conduct warranted disbarment. , 873 S.W.2d at
231. a state's highest court considers
many rs and "must be given considerable leeway in meting out the
tions imposed." , 640 F.2d at 904. In appellant's case,
was within the appropriate range of sanctions, and "[w]e are no
in a position, nor authorized, to second-guess the highest state court on
Id.
lly, appellant urges that the district court should hav
disciplined appellant based on Illinois' two-year suspension, rather than
disbarment. First, we reiterate that each court which admits
to its bar has the power to discipline those members as it sees
Theard, 354 U.S Harlan, 982 F.2d at 1259; , 370 F.2d
at The district court was not required to follow the disciplinary
ois or Missouri. However, based on the notification
of disbarment by the
an order e
ide discipline. It was well within the district court's inherent
to discipline appellant based on Missouri's disbarment order.
, the district court in the present case did not abuse it
discretion in entering judgment consistent with the Missouri disbarment as
12
C. Grave Injustice
Appellant argues that the district court abused its discretion when
it failed to recognize that a grave injustice would result from its failure
to depart from Missouri's disbarment order. We disagree. Appellant did
not conduct himself in accordance with the rules of the profession and was
disbarred from the Supreme Court of Missouri and the United States District
Court for the Eastern District of Missouri as a result. The district court
did not abuse its discretion in failing to find grave injustice.
III. CONCLUSION
The doctrine of collateral estoppel did not preclude the Supreme
Court of Missouri from considering the conduct underlying appellant's
criminal proceeding, and the district court did not abuse its discretion
when it imposed discipline identical to that imposed by the Supreme Court
of Missouri. Accordingly, we affirm the district court's disbarment order.
At this point, we suggest that appellant's best course of action would be
to petition the Supreme Court of Missouri for readmission to the Missouri
Bar based on his readmission to the Illinois Bar. What the Missouri
Supreme Court would do in this scenario is entirely within its discretion.
AFFIRMED.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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