In Re: Michele Simmsparris V. , 448 F. App'x 268 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1264
___________
In Re: MICHELE M. SIMMSPARRIS
_______________________
On Appeal from the United States District Court
for the District of New Jersey
D.C. Miscellaneous No. 10-mc-00115
(Honorable Robert B. Kugler)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 13, 2011
Before: SLOVITER, SCIRICA and SMITH, Circuit Judges.
(Filed: October 6, 2011)
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
Michele M. SimmsParris appeals from an order suspending her from the practice
of law in the United States District Court for the District of New Jersey.
On April 14, 2010, the New Jersey Office of Attorney Ethics submitted a petition
for emergent relief to the Supreme Court of New Jersey seeking the temporary
suspension of SimmsParris from the practice of law. The Office submitted evidence
demonstrating that SimmsParris had misappropriated client funds, refused to submit
client files during its misconduct investigation, made misrepresentations to the court, and
refused to submit to the jurisdiction of the court. On May 4th, 2010, the Supreme Court
of New Jersey issued an order temporarily suspending SimmsParris from the practice of
law, restraining the disbursement of funds in her trust and business accounts, and
requiring the transfer of those funds to the Clerk of the Supreme Court. A copy of the
Order was filed with the United States District Court for the District of New Jersey on
June 14, 2010.
The District Court responded on December 7, 2010, by issuing an order to show
cause why SimmsParris should not be suspended from the practice of law before the
District Court. On January 5, 2011, after reviewing Appellant’s written submissions, the
court ordered SimmsParris temporarily suspended.
In reciprocal disciplinary proceedings, district courts review the state record “for
consistency with the requirements of due process, adequacy of proof and absence of any
indication that imposing discipline would result in grave injustice.” In re Surrick, 338
F.3d 224, 231 (3d Cir. 2003) (quoting In re Jacobs, 44 F.3d 84, 88 (2d Cir. 1994)). The
attorney subject to discipline bears the burden of demonstrating “by clear and convincing
evidence” the presence of a serious infirmity in the state proceeding. Id. at 232 (quoting
In re Kramer, 282 F.3d 721, 724-25 (9th Cir.2002)). “We review district courts’
decisions regarding the regulation of attorneys who appear before them for abuse of
discretion.” Id. at 229 (citation omitted).
2
SimmsParris’s principal claim is that she was never the subject of a state
disciplinary proceeding. Accordingly, she argues, the District Court could not possibly
have reviewed state disciplinary proceedings for a serious infirmity. 1
Appellant’s claim lacks merit. Under the New Jersey Rules of Court, a temporary
suspension is permissible where an attorney fails to cooperate with an ethics
investigation, R. 1:20-3(g)(4), or an attorney’s conduct poses a substantial threat of
serious harm to an attorney, a client, or the public. R. 1:20-11(a). The temporary
suspension proceeding is initiated in a motion filed by the Office of Attorney Ethics. R.
1:20-3(g)(4); R. 1:20-11(b). Upon review of the evidence submitted in support of this
motion and rebuttal evidence, if any, the Supreme Court may issue an order temporarily
suspending the attorney, pending final disposition of a disciplinary proceeding or further
order of the court. R. 1:20-3(g)(4); R. 1:20-11(c). Here, both the motion initiating the
disciplinary proceeding with supporting evidence and the Supreme Court’s Order of
1
SimmsParris has advanced this argument elsewhere without success. In an action for
injunctive relief and monetary damages against the New Jersey officials involved in her
temporary suspension, the District Court rejected SimmsParris’s argument that there was
no disciplinary proceeding against her and abstained from hearing the matter while the
state proceeding was ongoing. SimmsParris v. Neary, 2011 U.S. Dist. LEXIS 65493
(D.N.J. June 20, 2011); SimmsParris v. Neary, Civ. No. 10-5492 (FLW) (D.N.J Aug. 15,
2011). And, in a lawsuit brought by SimmsParris against Amy Maldonado, her former
partner in the now dissolved law firm of SimmsParris Maldonado Tehauno, LLP., the
District Court found SimmsParris’s claim that she was never the subject of a disciplinary
matter before the Supreme Court of New Jersey “wholly lacks merit.” SimmsParris v.
Maldonado, Civ. No. 10-4395 (FSH) (PS) (D.N.J. Sept. 14, 2011). It is worth noting that
in Maldonado the District Court dismissed SimmsParris’s complaint with prejudice for a
“pattern of misconduct . . . similar to the conduct which led to her suspensions,”
including her failure to comply with court orders requiring her to produce documents and
failure to appear at a hearing regarding her repeated discovery violations. SimmsParris v.
Maldonado, 2011 U.S. Dist. LEXIS 70679 (D.N.J. June 29, 2011).
3
temporary suspension for failure to cooperate with the ethics investigation were in the
record. Accordingly, appellant’s central contention—that there was no record of a
disciplinary proceeding for the District Court to review—is incorrect. The District Court
properly carried out its role in reviewing the state court proceeding. 2
Indeed, the record supports the District Court’s conclusion that SimmsParris failed
to establish serious infirmities in the state proceeding. SimmsParris contends the state
deprived her of due process by providing inadequate notice and failing to hold a hearing
regarding her temporary suspension. But the Office of Attorney Ethics served the
disciplinary petition at an office address—which the record shows she used at least until
2009—and her home address. 3 That SimmsParris shows a third address where she
received correspondence from the Office does not establish deficient notice. Likewise,
SimmsParris fails to demonstrate that the lack of a hearing regarding her interim
suspension amounts to a due process violation. Here, the temporary suspension was
issued because SimmsParris did not cooperate in an ongoing ethics investigation. An
interim suspension of a professional license pending final disposition does not require a
pre-suspension hearing. See Barry v. Barchi, 443 U.S. 55, 65-66 (1979). The record does
2
SimmsParris suggests that the District Court violated due process in failing to hold a
hearing. But the requirements of due process were satisfied when the court issued its
Order to Show Cause and conducted an independent review of the record. See, e.g., In re
Surrick, 338 F.3d 224, 231 (3d Cir. 2003); In re Kramer, 193 F.3d 1131 (9th Cir. 1999).
She further claims the local procedural rules required the court to notify her of the date
and time of a hearing. But that requirement only applies “[i]f oral argument is to be
heard.” D.N.J. L. Civ. R. 78.1(b). SimmsParris did not request oral argument and no oral
argument was ordered by the court.
3
We note SimmsParris submitted only the first page of a letter in which the Office
describes its efforts to notify her of the petition for temporary suspension.
4
not establish that SimmsParris sought a hearing in the ongoing state disciplinary
proceedings. Instead of participating in those proceedings, SimmsParris filed a motion in
the Supreme Court of New Jersey disparaging the deputy ethics counsel who filed the
petition for temporary suspension and asking the court to vacate its suspension Order.
Finally, SimmsParris contends the District Court did not follow its own local
procedural rules when it failed to include a copy of the state disciplinary Order with its
Order to Show Cause and failed to designate thirty days from the day of service for her
response. See D.N.J. L. Civ. R. 104.1(b)(2). Even if it was error, any deviation from the
local District rules was harmless. SimmsParris had ample notice of the basis for the
District Court’s proceedings against her. The District Court found SimmsParris had
notice of the New Jersey temporary suspension at least six months before it issued its
Order to Show Cause. Moreover, the District Court’s Order to Show Cause specifically
referred to the temporary suspension Order of the Supreme Court of New Jersey.
Similarly, SimmsParris was not prejudiced by the District Court’s failure to designate
thirty days to respond. In a footnote to her timely response, SimmsParris noted this
deviation from the local District rules but did not request more time nor suggest that
additional time would have altered her response.
We conclude that the District Court did not abuse its discretion in imposing
reciprocal discipline.
5