Henry Koehler V. , 521 F. App'x 615 ( 2013 )

FILED
NOT FOR PUBLICATION APR 11 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
In Re: HENRY JAMES KOEHLER, No. 11-56210
In Re, D.C. No. 2:11-mc-00125-ABC
HENRY JAMES KOEHLER, attorney MEMORANDUM *
disciplinary matter,
Appellant.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Submitted April 9, 2013 **
Pasadena, California
Before: BERZON, TALLMAN and M. SMITH, Circuit Judges.
Pro se Appellant Henry James Koehler IV (Koehler) appeals the district
court’s order of reciprocal disbarment, dated June 22, 2011, from the practice of
law before the United States District Court for the Central District of California.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction over the district court’s decision to impose reciprocal
disbarment, see In re Kramer, 282 F.3d 721, 724 (9th Cir. 2002), and we affirm.
In 1977, 1992, and 1999, Koehler was disciplined by the California State
Bar.1 As a result of the 1999 disciplinary action, the California Supreme Court
issued an order suspending Koehler from the practice of law for 60 days. In the
fourth disciplinary action against Koehler, which is the proceeding at issue, the
hearing judge recommended Koehler’s disbarment. On September 17, 2010, the
Review Department found by clear and convincing evidence that Koehler had
engaged in the unauthorized practice of law during his 60-day suspension, in
violation of Cal. Bus. & Prof. Code §§ 6125, 6126, and 6068. Specifically, the
Review Department found that during his suspension in December 1999, Koehler
wrote two letters to state court litigants in which he provided legal advice, strategy,
and recommendations in a manner constituting the practice of law. The Review
Department applied standard 1.7(b) of the State Bar’s Standards for Attorney
Sanctions for Professional Misconduct, and found disbarment appropriate because
Koehler (i) had violated a Supreme Court order, (ii) had three prior discipline
records, and (iii) had failed to establish mitigation. On February 2, 2011, the
1
Details of Koehler’s underlying misconduct are discussed in the September
17, 2010 opinion of the Review Department of the State Bar Court (Review
Department).
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California Supreme Court denied his petition for writ of review, and ordered him
disbarred from the practice of law in California. The California Supreme Court
later denied his petition for rehearing. On April 6, 2011, the Central District of
California issued an order to show cause (OSC) as to why Koehler should not be
reciprocally disbarred from that court. On May 6, 2011, Koehler filed a response,
which the district court found unpersuasive.
“[A] federal court’s imposition of reciprocal discipline on a member of its
bar based on a state’s disciplinary adjudication is proper unless an independent
review of the record reveals: (1) a deprivation of due process; (2) insufficient proof
of misconduct; or (3) grave injustice which would result from the imposition of
such discipline.” Kramer, 282 F.3d at 724 (citing Selling v. Radford, 243 U.S. 46,
50–51 (1917)); see also Local Rules 83-3.2.1, 83-3.2.3 (including the additional
element of “other substantial reasons”). The attorney carries the burden, by “clear
and convincing evidence,” of showing that one of these elements precludes
reciprocal discipline. Kramer, 282 F.3d at 724–25. Although this court may
independently examine the state court disciplinary proceeding where, as here, it is
offered as the ground for suspending or disbarring an attorney from practice before
a federal court, id. at 723, we “must accord a presumption of correctness to the
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state court factual findings,” In re Rosenthal, 854 F.2d 1187, 1188 (9th Cir. 1988)
(per curiam).
Here, the district court followed the procedural requirements for reciprocal
disbarment by issuing an OSC, conducted an independent review of the state court
record, and offered a reasoned explanation as to why Koehler had not shown any
of the four elements under Local Rule 83-3.2.3. In his appellate brief, Koehler
offers no coherent legal basis as to why the district court erred. He only states that
“[t]he District Court failed to see this was a dummied-up prosecution,” and cites to
inapposite cases in a haphazard manner. Both the district court’s and the Review
Department’s decisions were amply supported by the law. Nor does Koehler offer
any basis for challenging the factual findings by the state court, which we presume
to be true.
Moreover, our own independent review of the record accords with the
district court’s conclusions. We find that Koehler failed to meet his burden of
showing (1) why his state disciplinary proceeding was “so lacking in notice or
opportunity to be heard as to constitute a deprivation of due process,” in light of
the Review Department’s thorough examination of the state court record; (2)
whether there was an “infirmity of proof” establishing his misconduct, which was
premised on the Review Department’s analysis of the December 1999 letters—the
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factual underpinnings of which he does not challenge; (3) why his reciprocal
disbarment would result in “grave injustice,” especially given his failure to present
any mitigating evidence and history of disciplinary actions; and (4) whether there
are any “other substantial reasons” to doubt the state court’s conclusions. Local
Rule 83-3.2.3; see also Kramer, 282 F.3d at 724. Accordingly, we affirm the
district court.
AFFIRMED.
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