In re Winford Kent Bishop , 360 F. App'x 246 ( 2010 )

09-90087-am
In re Winford Kent Bishop
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 13th day
of January, two thousand ten.
Present:
WILFRED FEINBERG,
ROBERT D. SACK,
ROBERT A. KATZMANN,
Circuit Judges.
________________________________________________
In re WINFORD KENT BISHOP,
No. 09-90087-am
Attorney.*
________________________________________________
For Attorney: JAMES E. SPENCE , JR., Wilson, Morton & Downs, LLC,
Decatur, GA
For Grievance Committee of the BRIAN M. COGAN , Chair, Grievance Committee of the
Eastern District of New York: Eastern District of New York, New York, NY
*
The Clerk of the Court is directed to amend the official caption as set forth above.
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the district court’s order of reciprocal disbarment, entered July 24, 2008, its
order denying Appellant’s motion to vacate, entered January 16, 2009, and its order denying
Appellant’s motion for reconsideration, entered July 15, 2009, are AFFIRMED.
Appellant Winford Kent Bishop appeals from an order of reciprocal disbarment issued by
the Grievance Committee of the United States District Court for the Eastern District of New
York (“the Committee”) pursuant to Eastern District Local Rule 1.5(d)(2), as well as the denial
of his motions for an extension of time to reply, for vacatur of the order of disbarment, and for
reconsideration of the same. We assume the parties’ familiarity with the underlying facts and
procedural history of the case.
This Court reviews the imposition of disciplinary actions by a district court for a clear
abuse of discretion. In re Gouiran, 58 F.3d 54, 56 (2d Cir. 1995). Bishop makes a variety of
arguments on appeal, which boil down to three fundamental objections: that his Georgia
disbarment was not a proper ground for reciprocal disbarment in the Eastern District; that the
Committee denied him due process; and that the Committee imposed disproportionately severe
discipline.
Bishop first contends that the Committee failed to recognize that he demonstrated all
three grounds enumerated by the United States Supreme Court in Selling v. Radford, 243 U.S. 46(1917), for not imposing reciprocal discipline: lack of due process in the original proceeding,
“infirmity of proof” as to the alleged misconduct, or “some other grave reason.” Id. at 51. “An
elementary and fundamental requirement of due process . . . is notice reasonably calculated,
under all the circumstances, to apprise interested parties of the pendency of the action and afford
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them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950). The proper focus of the due process inquiry is not whether notice of
the proceeding was actually received but whether the means selected were reasonably adopted to
accomplish such notice. Grievance Comm. for S. Dist. of N.Y. v. Polur, 67 F.3d 3, 6 (2d Cir.
1995) (per curiam). “When an attorney has furnished his address to the court clerk and has not
informed the clerk that that address has been changed, the mailing of a court document to the
address furnished . . . constitutes notice sufficient to meet the requirements of due process.” Id.The Georgia state disciplinary board went to great lengths to serve Bishop with notice of
the disciplinary hearings pending against him. Multiple notices were mailed to his last known
address, Bishop failed to collect notices forwarded to his new post office box, and personal
service was attempted at his former office. Bishop’s argument that the disciplinary authorities
should have done more to notify him of the proceedings, are unavailing. See Greene v. Lindsey,
456 U.S. 444, 455 (1982) (“[T]he mails provide an efficient . . . means of communication upon
which prudent men will ordinarily rely in the conduct of important affairs.”) (citation and internal
quotation marks omitted).
As to the second Selling ground–infirmity of proof as to the alleged misconduct–the
“misconduct” at issue is Bishop’s failure to respond to the notice of Georgia disciplinary
proceedings. There is no doubt that there was more than enough proof of Bishop’s failure to
respond, see Matter of Bishop, 264 Ga. 241, 242 (1994) (“These facts . . . are sufficient to form
the basis of a reasonable inference that Bishop knew the nature of the correspondence and
deliberately ignored the notices.”), such that the Committee was justified in “accept[ing] as final
the conclusion [of the Supreme Court of Georgia] on that subject,” Selling, 243 U.S. at 51.
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Finally, Bishop makes no credible argument that reciprocal disbarment by the district courts
constitutes a “grave injustice.” Accordingly, we find that the Committee did not abuse its
discretion in determining that Bishop’s disbarment in Georgia warranted reciprocal disbarment in
the Eastern District.
Bishop also contends that, by requiring an attorney to establish by “clear and convincing
evidence” that reciprocal disbarment is not warranted, Local Rule 1.5(d)(2) articulates a higher
burden of proof than Selling prescribes. This argument is foreclosed, however, by In re
Friedman, 51 F.3d 20 (2d Cir. 1995), in which we concluded that, “[a]s Selling makes clear, it [is
the disciplined lawyer’s] burden to demonstrate by clear and convincing evidence that . . . the
[state court] procedures were wanting,” id. at 22.
Bishop also objects to aspects of the process by which reciprocal punishment was
imposed. Contrary to his assertion, we find that the Committee’s decision not to hold an
evidentiary hearing prior to disbarring him did not violate the principles articulated by the
Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976). “Under Eldridge, we consider the
private interest affected by the action of the federal grievance committee in following the state
order without an evidentiary hearing, the risk of erroneous deprivation of that private interest,
and the federal grievance committee’s interest in foregoing an evidentiary hearing.” Matter of
Jacobs, 44 F.3d 84, 90 (2d Cir. 1994). We recognize the significance of an attorney’s interest in
being able to practice law in a given jurisdiction, though we note that in a parallel proceeding
Bishop admits to not having practiced law in the Southern District since 1971. Regardless, this
Court has clearly found that, as a general matter, the failure to hold an evidentiary hearing
presents a low risk of an erroneous deprivation of the private interest at issue here, and the
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Committee’s interest in conserving its limited resources is high. See id. at 91. We find no abuse
of discretion in this respect.
In addition, Bishop argues that the Committee imposed upon him “grossly
disproportionate” discipline “for conduct for which [it] . . . would not otherwise disbar an
attorney” and that the Committee has refrained from reciprocally disbarring other attorneys
accused of much more egregious misconduct. Bishop acknowledges, however, that the
reciprocal proceedings in the Eastern District that he cites have “resulted in the same punishment
as imposed by the originating court except in a handful of cases.” Appellant’s Br. 55. If nearly
all of the reciprocal proceedings imposed the same punishment as the originating court did, then
Bishop, by his own admission, was not treated differently than other attorneys when the
Committee followed the Supreme Court of Georgia in disbarring him.
We have considered Bishop’s other arguments and find them to be without merit.
Accordingly, we AFFIRM the district court’s order of reciprocal disbarment and its denial of
Appellant’s motions to vacate and reconsider that order.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
By:_________________________________
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