In Re: M. Fletcher v. ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 04-2636
________________
In Re: Disciplinary Matter of * Appeal from the United States
Michael Robert Fletcher, * District Court for the
* Western District of Missouri.
Appellant. *
________________
Submitted: April 14, 2005
Filed: September 23, 2005
________________
Before RILEY, FAGG, and GRUENDER, Circuit Judges.
________________
GRUENDER, Circuit Judge.
The United States District Court for the Western District of Missouri (“Western
District”)1 suspended Michael Robert Fletcher from the practice of law before that
court for three years for numerous violations of the Missouri Rules of Professional
Conduct, which apply to practice before the Western District. W.D. Mo. R.
83.5(c)(2). Fletcher appeals, arguing that the Western District erred in expanding the
scope of the investigation into his misconduct beyond the facts that triggered the
disciplinary proceedings, that two district judges should have recused themselves
from the proceedings against him, and that the Western District denied Fletcher
adequate pre-trial discovery. Fletcher also contends that the Western District erred
1
The United States District Court for the Western District of Missouri, sitting
en banc.
in some of its findings of misconduct and that the sanctions imposed were too harsh
given the circumstances of his case. We affirm.
I. BACKGROUND
Fletcher is an attorney with the firm of Simpson Sanders & Fletcher, L.C. in
Kansas City, Missouri. He specializes in the area of employment discrimination. He
was admitted to the Missouri bar on October 10, 1996, and to the Western District bar
on May 20, 1998. Fletcher has a history of using ethically questionable tactics in
litigation. In 2000, Western District Judge Ortrie D. Smith described Fletcher’s
conduct in depositions as “combative” and “macho posturing,” in part because of
comments that were “belittling” and “threat-like.” Ross v. Kansas City Power &
Light Co., 197 F.R.D. 646, 657-58, 660 (W.D. Mo. 2000). Shortly thereafter,
Western District Judge Scott O. Wright criticized Fletcher for using “race baiting”
tactics in another case. See Mark Morris, Judge Denounces Lawyer’s Comments;
Police Settlement Split among Family, KANSAS CITY STAR, Oct. 12, 2000, at B1.
A. Turner Litigation
On August 25, 2000, Fletcher filed a lawsuit for a client, William Turner, in the
Western District against Honeywell Federal Manufacturing & Technologies LLC
(“Honeywell”). The lawsuit (“Turner litigation”) alleged that Honeywell had denied
Turner promotions on the basis of race. Early in the Turner litigation, the parties
participated in mediation under the Western District’s Early Assessment Program.
As the mediation session concluded, Fletcher began directing profanities at Jill
Marchant, Honeywell’s in-house counsel, and Karen Cain and William Martucci,
Honeywell’s outside counsel. Among other things, Fletcher accused Marchant of
being a “fucking liar.” Needless to say, the parties were unable to resolve the case
in mediation.
-2-
In conjunction with the Turner litigation, Daniel Craig, an associate working
for Fletcher, deposed Karen Clegg, former president of Honeywell, on June 11, 2001.
Craig asked Clegg whether she had made a comment that “the white man is an
endangered species at Honeywell.”
Craig: Okay. Do you recall being in a management meeting in
approximately early 1999 where you made a comment, in
fact, wrote on a board something to the effect that the white
man is an endangered species at Honeywell?
Clegg: I don’t know when – what year that would have been made.
I do recall that we provided diversity training to associates,
and the trainers, and I happened to be one of the trainers,
set out a chart, I believe it was, of perceptions that people
had about each other, perceptions that are typically
inaccurate and that may have – I believe that one of the
statements on the presentation material that was prepared
for the trainers.
Craig: But did you actually say something to that effect?
Clegg: I think it was on the chart and I stated that was a
perception. I certainly never presented it as my perception.
As I said, it was part of diversity training to understand
how people misperceive each other.
Fletcher deposed Jimmie Banks, former Honeywell Manager of Human
Resources Services and Diversity, on June 22, 2001. During the deposition of Banks,
Fletcher asked a number of pointed questions about vernacular allegedly used in the
African-American community. The following exchange is representative of
Fletcher’s behavior during the deposition of Banks:
Fletcher: Now do you think if I were to refer to your wife as a nigger
bitch that would be highly offensive?
-3-
Banks: Yes, sir.
Fletcher: Okay. And why would it be highly offensive?
Banks: Because of the nature of the term.
...
Fletcher: Okay. Now, tell me why you think the term nigger bitch
would be offensive.
Banks: In our culture, bitch is referred to as a female dog. In our
culture, the word nigger in certain contexts is an offensive
term. And you put those two together and you have very
offensive identifiers.
Fletcher: Now tell me a context in which it’s okay to refer to an
African American as a nigger.
Banks: I don’t know of any.
Fletcher: Didn’t you just testify, sir, that, quote in certain contexts
it’s offensive?
Banks: Well, as I see it personally, it’s always offensive. In terms
of how certain people might use it, it could be a term of
affection in our culture.
Fletcher: When you say “our culture,” what do you mean?
Banks: In our culture. Black culture.
Fletcher relentlessly pressed this line of questioning until Honeywell’s counsel
objected. As part of the exchange between attorneys and in the presence of the
witness, the plaintiff, the court reporter and others, Fletcher characterized Banks’s
testimony as follows: “The fact that this man has testified that for 40 years he refers
-4-
to African Americans as niggers, the fact that this man has testified that for 40 years
he found it a compliment to be referred to as nigger is shocking.” Fletcher added,
“This man, in my opinion, has done nothing but step on the backs of black people at
Honeywell so he can get further, he could be further ahead.” The tirade concluded
with Fletcher calling Banks a “self-hating racist” and comparing him to those “Jews
that were willing to turn in other Jews to [the Nazis to] protect themselves.”
B. Honeywell Complaints
Fletcher eventually learned of several additional individuals who claimed they
also suffered racial discrimination at the hands of Honeywell. Initially, Fletcher
sought to join these individuals as additional plaintiffs in the Turner litigation.
However, after the district court denied his request, Fletcher filed eighteen separate
complaints against Honeywell on behalf of these new plaintiffs (the “Honeywell
complaints”). These cases then were assigned to numerous judges in the Western
District, except Judge Smith, who had recused himself under 28 U.S.C. § 455 from
the one case that was assigned to him.
As in the Turner litigation, neither Clegg nor Banks were named as defendants
or accused of any wrongdoing. Nonetheless, each of the eighteen complaints
contained inaccurate and misleading allegations purportedly based on the deposition
testimony that Clegg and Banks gave during the Turner litigation. For example, the
Honeywell complaints contained the following with regard to Banks:
b. [Banks testified that r]eferring to an African-American as a
nigger, “could be a term of affection in our culture.” p.7;
c. “It can be a compliment if I say you’re my nigger,” to an
African-American. p.8-9;
-5-
d. He himself has several people who compliment him by calling
him a nigger. p.9-10;
e. He enjoys being called a nigger by these people. p.10-11;
f. It makes him happy when these people call him a nigger. p.14;
g. Non-African Americans may call him a nigger without offending
him. p.22;
h. Use of the word bitch towards a female can be a term of
endearment in “our culture.” p.23; and,
i. Use of the term nigger bitch in reference to an African-American
female “may be an acceptable expression that people use.” p.24.
Complaint at 5, Brown v. Honeywell Fed. Mfg. & Techs., LLC, No. 02-CV-219 (W.D.
Mo. Mar. 12, 2002) (emphasis in original).
Absent from Fletcher’s selective quotations was much needed context. For
example, with respect to subparagraph i, Banks actually gave the following
testimony:
Fletcher: Okay. Now, so if it’s okay to refer to African Americans
as niggers and okay to refer to African American females
as bitch, why would you be offended if someone referred
to your wife or daughter as a nigger bitch?
Banks: I think I’ve responded to the nature of your question, and
what you’re doing is tying two things together to try to
make it sound like I’ve said something that I actually
haven’t said.
Fletcher: Okay. Well, is it okay to refer to your wife or daughter as
a nigger bitch?
-6-
Banks: I told you the terms are highly offensive, but two people
who have a relationship, that may be an acceptable
expression that people use.
Fletcher: Okay. Tell me a scenario in which it’s acceptable to refer
to an African American female as a nigger bitch?
Banks: As far as I am personally concerned, there are none.
As is clear from the transcript, Banks testified that he found the terms “nigger” and
“bitch” to be highly offensive and inappropriate.
The Honeywell complaints signed by Fletcher similarly distorted the deposition
testimony of Clegg. For example, the complaint stated that: “[Clegg] admits that she
told a group of management employees in a meeting at Honeywell that “the white
man is an endangered species at Honeywell.” Complaint at 10, Brown, No. 02-CV-
219 (emphasis in original). However, as is clear from her deposition testimony,
Clegg stated this was an example of “how people misperceive each other.”
Honeywell moved to strike the portions of the complaints that involved its
executives’ deposition testimony on the grounds that the allegations were impertinent
and scandalous. Judge Gary A. Fenner, the first judge to take up this issue, found that
the offending paragraphs were “impertinent, scandalous, and taken out of context so
as to be misleading.” Samuel Coleman v. Honeywell Fed. Mfg. & Techs., LLC, No.
02-CV-362, slip op. at 1 (W.D. Mo. June 18, 2002). One month later, Judge Wright
entered a similar order in a Honeywell litigation case before him, finding that “with
respect to the deposition testimony, plaintiff’s counsel has taken statements out of
context and mischaracterized other testimony beyond recognition.” Combs v.
Honeywell Fed. Mfg. & Tech., LLC, No. 02-CV-220, slip op. at 2 (W.D. Mo. July 26,
2002). Both judges ordered the complaints to be amended without the offensive
deposition-related allegations. Fletcher amended the two complaints before Judges
Fenner and Wright but did not amend the complaints pending before other judges.
-7-
In September, Judge Howard F. Sachs granted Honeywell’s motion to strike,
stating that the offending paragraphs “consist of conclusory allegations, at best, and
fraudulent mischaracterizations at worst.” Barbara L. Coleman v. Honeywell Fed.
Mfg. & Techs., LLC, No. 02-CV-361, slip op. at 1 (W.D. Mo. Sept. 5, 2002). One
month later, Judge Nanette K. Laughrey granted, without substantive analysis,
Honeywell’s motion to strike, holding that the issue had been “ably addressed by
Judge Fenner and Judge Wright in parallel actions.” Brown v. Honeywell Fed. Mfg.
& Techs., LLC, No. 02-CV-219, slip op. at 4 (W.D. Mo. Oct. 3, 2002).
C. Complaints of Misconduct
Initially, Chief Judge H. Dean Whipple notified Maridee F. Edwards, Chief
Disciplinary Counsel for the State of Missouri, that Judges Smith and Fenner had
“voiced complaints about the unprofessional and abusive conduct of Michael R.
Fletcher in cases before them.” Edwards declined to exercise jurisdiction over the
issues involving the Western District, instead leaving the matter to the Western
District.
On November 7, 2002, Chief Judge Whipple granted yet another Honeywell
motion to strike and ordered Fletcher to show cause why he should not be sanctioned.
The order to show cause was based on his finding that “[Fletcher] has shamelessly
included scandalous allegations” that were “inaccurate, misleading, and
inflammatory.” Smith v. Honeywell Fed. Mfg. & Techs., LLC, No. 02-CV-234, slip
op. at 3. The only reason Chief Judge Whipple could find for the inclusion of these
allegations was to “harass and embarrass Honeywell management and to shamelessly
publicize this case in the media prior to trial.” Id. at 6.
The Court can find no legitimate reason why [Fletcher] would include
these allegations in a pleading to this Court. Even if these allegations
were true–and the context of the depositions show they are not–these
allegations are irrelevant and immaterial to the claims set forth in the
-8-
lawsuit. Plaintiff claims she was discriminated against by not being
promoted, but does not allege that either Banks or Clegg was involved
in the advancement decisions relating to her.
Id. at 6.
Although Fletcher filed a brief opposing sanctions and Honeywell filed a brief
in support, Chief Judge Whipple made no further ruling on the show cause order.
Instead, the Western District sent a letter to Fletcher on January 9, 2003, notifying
him that Judges Fenner and Smith had referred allegations of misconduct against
Fletcher pursuant to Local Rule 83.6(d). The letter explained that particular
allegations prompting an investigation and possible disciplinary proceedings “stem
from your representations to the Court in the Honeywell complaints and comparisons
with the actual transcripts of the testimony cited.” The letter stated that the Western
District had appointed Theresa Levings (“Appointed Counsel”) to investigate whether
Fletcher had violated Missouri Rule of Professional Conduct (Mo. RPC) 4-3.3
(requiring candor toward the tribunal) or Mo. RPC 4-8.4 (prohibiting conduct that is
prejudicial to the administration of justice) when he filed the Honeywell Complaints.
The letter also notified Fletcher that Appointed Counsel would investigate “other
conduct or allegations that may come to her attention during the course of her
investigation.”
D. The Investigation
Appointed Counsel deposed Fletcher on May 23, 2003. During the deposition,
Fletcher acknowledged four outstanding bar complaints against him. Three of these
related to assertions Fletcher allegedly made to class representatives in a suit against
Rent-a-Center. The fourth complaint involved allegations of bribery, assault and
resisting arrest.
-9-
Appointed Counsel also mailed letters throughout the Kansas City legal
community in order to ascertain whether Fletcher had acted improperly at other times
in his career. Her investigation uncovered numerous other instances of Fletcher’s
demeaning and abusive behavior while participating in depositions and mediation.
For example, during the mediation with St. Joseph Health Center of a case involving
race discrimination and wrongful discharge, Fletcher threatened to publicize
confidential patient information that his client had illicitly photocopied. In another
instance of professional misconduct, Fletcher left threatening phone messages at the
home and office of Laura Lesniewski, an architect with Habitat for Humanity.
Fletcher promised to seek sanctions and bring a lawsuit for Lesniewski’s “improper
and unethical negotiations with [Billy Duncan, his] former client.” Such threats were
hollow and improper because Fletcher knew that Lesniewski was not an attorney
bound by the rules that regulate contact with represented parties.
As a final example, Fletcher employed demeaning and inappropriate tactics
during the deposition of Steven J. Cox, former police chief of the Leawood Police
Department. After Cox had stated that he believed a prior incident of rape occurred
sometime in 1989, 1990 or 1991, Fletcher pursued the following line of questioning:
Fletcher: Okay. So you can recall when you graduated high school,
but you can’t recall when one of your women employees
was raped by another employee?
Cox: That’s correct.
Fletcher: All right. Is that because the high school graduation had
more significance to you than the rape of Miss Gibbs?
...
Cox: I – to – as far as a personal milestone in my life, yes,
probably so.
-10-
Fletcher: Okay. And that is because your graduation from college
had more significance to you than Mrs. Gibbs’ rape by an
officer?
Cox: No, sir.
Fletcher: Okay. Why don’t you recall the date of Miss Gibbs’ rape?
Cox: Those are also events that people traditionally associate
with a year.
...
Fletcher: Also, ironically, you remember the decade you graduated
from high school, but you can’t remember the decade Miss
Gibbs was raped, correct?
Fletcher later shifted gears in the deposition and began to threaten both the deponent
and his attorney, Rebecca Yocum.
Fletcher: Does she represent you in your 19 – are you aware, sir, that
there’s a 1983 cause of action filed against you personally?
Cox: No, sir.
Yocum: First of all, sir, that is a misstatement. There is no such
action.
Fletcher: Okay. Are you aware that there’s an amended complaint in
which you are cited specifically under section 1983 of the
Civil Code?
Yocum: And you’re misstating the record. There is no amended
complaint that has been allowed to be filed.
-11-
Fletcher: Did she tell you that? Are you aware of that? . . . You can
answer.
Cox: No, sir.
Fletcher: Okay. So are you aware that if she’s representing you that
you may have personal liability in this matter?
Yocum: Mr. Fletcher, you’re misrepresenting the facts. Mr. Cox
has not been named as a defendant in this litigation, period.
And I resent the fact that you’re misrepresenting things to
him.
Fletcher: Sir, have you been advised that there’s a lawsuit pending
or a proposed amendment to the complaint which would
potentially involve you personally in liability?
Cox: No, sir.
Fletcher: Is that a fact that you would have liked to have been
advised of?
Yocum: Mr. Fletcher, you’re misstating facts to him. Stop it. There
is no litigation against Chief Cox – former Chief Cox in
this litigation.
Fletcher: I don’t know why you are getting upset. I’m simply asking
him questions –
Yocum: I am upset because you are lying, sir. You are lying to the
man. If there’s some litigation pending –
Fletcher: You don’t ever – you are – this is the second attack by you
people, for you to call me a liar. This is done and we’re
taking it up with the judge.
-12-
Yocum: That’s fine, sir. But you’ve totally misrepresented the facts
to this man. There is no litigation personally pending
against Chief Cox.
Fletcher: For you to attack – for you to attack a member of this Court
and call him a liar just bought you a lawsuit. Let’s go.
These and numerous other allegations paint a disturbing picture of an over-
zealous attorney who frequently resorts to unprofessional tactics in an attempt to
harass, humiliate and intimidate deponents and their counsel.
E. Disciplinary Proceedings
On October 17, 2003, Appointed Counsel filed with the Western District a
Motion for Order to Show Cause Why Michael Robert Fletcher Should Not Be
Disciplined for Professional Misconduct (“motion for order to show cause”). The
motion contained 157 counts of misconduct, which stemmed from 307 factual
allegations. One week later, Chief Judge Whipple issued an order to show cause,
which Fletcher answered on December 29, 2003. Pursuant to W.D. Mo. R.
83.6(d)(4), Chief Judge Whipple assigned the matter for a hearing before Judges
Fernando J. Gaitan, Jr., Laughrey and Richard E. Dorr.
The three-judge panel convened on March 8, 2003, to hear three days of
testimony and arguments. Two months later, the three-judge panel issued a Report
of Findings and Recommendation (“report and recommendation”). According to the
three-judge panel, Appointed Counsel proved by clear and convincing evidence 167
of the 183 factual allegations the panel considered.2 Based on the findings in the
2
The panel stated that it chose not to consider factual allegations 184-307
because it concluded “there was sufficient evidence of professional misconduct
contained in paragraphs 1-183 of Appointed Counsel’s Motion for the court to take
the necessary action to preserve the integrity of this court.”
-13-
report and recommendation, the three-judge panel concluded that Fletcher had
violated the Missouri Rules of Professional Conduct and that a three-year suspension
was appropriate. On May 18, 2004, the United States District Court for the Western
District of Missouri, sitting en banc, issued an order (“the en banc order”) accepting
the three-judge panel’s factual findings and adopting its recommendation for
sanctions.
F. Western District’s En Banc Order
The Western District’s holdings fall into three basic categories. First, the court
ruled that Fletcher made misrepresentations to the court in violation of Mo. RPC 4-
3.3(a)(1) (making a false statement of fact to the tribunal) and 4-8.4(c) (engaging in
conduct involving dishonesty, fraud, deceit or misrepresentation); second, that
Fletcher engaged in conduct with no substantial purpose other than to intimidate and
harass third parties in violation of Mo. RPC 4-4.4 (respecting the rights of third
persons); and third, that Fletcher engaged in conduct prejudicial to the administration
of justice in violation of Mo. RPC 4-8.4(d). The Western District summarized:
While each and every action by Mr. Fletcher which has been proven by
clear and convincing evidence may not constitute a separate ethical
violation, the court is firmly convinced that Mr. Fletcher has engaged in
a pattern and practice of unethical conduct and has done so to gain an
unfair advantage in litigation and to profit financially. He has also
exhibited disregard for the authority of the federal court.
In re Disciplinary Matter of Michael Robert Fletcher, No. 03-272, slip op. at 5-6
(W.D. Mo. May 18, 2004) (en banc). As a mitigating factor, the Western District
noted that witnesses testified that Fletcher is a talented attorney who lacks appropriate
guidance and training and that he is passionate about his clients’ causes and has used
some of his own money to pursue those causes. The Western District concluded,
-14-
however, that “[w]hile Mr. Fletcher may possess some talent as an attorney, neither
talent nor causes entitle him to violate the professional codes of conduct.” Id. at 6.
Accordingly, the en banc district court suspended Fletcher from practice before
the Western District for three years, effective immediately. The en banc order
provides that Fletcher is subject to reinstatement only pursuant to W.D. Mo. R.
83.6(f), which requires him to petition the court and show by clear and convincing
evidence that “[he] has the necessary integrity, moral qualifications, and competency
for readmission.” Fletcher appeals, arguing that his due process rights were violated
because (1) the Western District considered conduct outside of the Honeywell
complaints, (2) the judges who initiated the disciplinary proceeding did not recuse
themselves from joining the en banc order, (3) Judge Smith did not recuse himself
from the en banc order despite his recusal from the litigation that gave rise to the
disciplinary action, and (4) limitations on pre-hearing discovery prejudiced Fletcher.
Fletcher also contends that (5) the Western District erred in its factual findings and
(6) imposed an excessive punishment upon Fletcher.
II. DISCUSSION
A. Due Process
“Courts have long recognized their authority to suspend or disbar attorneys, an
inherent power derived from the attorney’s role as an officer of the court that granted
admission.” In re Hoare, 155 F.3d 937, 940 (8th Cir. 1998). As such, a court’s
power to discipline members of its bar is “autonomous.” In re Attorney Discipline
Matter, 98 F.3d 1082, 1087 (8th Cir. 1996) (citing Theard v. United States, 354 U.S.
278, 281 (1957)). The exercise of this “autonomous” authority is, however, limited
by the constitutional requirements of due process. See Schware v. Board of Bar
Exam. of State of N.M., 353 U.S. 232, 238-39 (1957) (noting that a court cannot
exclude a person from the practice of law in a manner that contravenes the Due
-15-
Process Clause of the Fourteenth Amendment). In an attorney disciplinary
proceeding, due process requires, at a minimum, “notice and an opportunity to be
heard,” Charges of Unprofessional Conduct against 99-37 v. Stuart, 249 F.3d 821,
825 (8th Cir. 2001), and that the district court follow its “procedural rules governing
attorney discipline,” In re Bird, 353 F.3d 636, 638 (8th Cir. 2003).
Rule 83(d)(1) of the Western District’s local rules provides that “[w]hen
misconduct or allegations of misconduct . . . come[s] to the attention of a Judge of
[the] Court, . . . the judge shall refer the matter to counsel for investigation and the
prosecution of a formal disciplinary proceeding.” W.D. Mo. R. 83.6(d)(1); see also
W.D. Mo. R. 83.6(h) (“[The] Court shall appoint as counsel one or more members of
the Bar of [the] Court to investigate allegations of misconduct or to prosecute
disciplinary proceedings under these rules . . . .”). If, after investigation and review,
the appointed counsel concludes that a formal disciplinary proceeding should not be
initiated, she must file a recommendation for disposition with the Western District.
W.D. Mo. R. 83.6(d)(2). If, however, the appointed counsel concludes that formal
disciplinary proceedings should be initiated, she must “obtain an order of [the] Court
upon a showing of probable cause requiring the respondent-attorney to show cause
within 30 days . . . why the attorney should not be disciplined.” W.D. Mo. R.
83.6(d)(3). A respondent-attorney is entitled to a hearing “if any issue of fact is
raised [in the respondent-attorney’s answer to the order to show cause] or the
respondent-attorney wishes to be heard in mitigation.” W.D. Mo. R. 83.6(d)(4).
Where “the disciplinary proceeding is predicated upon the complaint of a judge of
[the] Court, the hearing shall be conducted before a panel of three other judges of
[the] Court appointed by the Chief Judge.” Id.The Western District and Appointed Counsel assiduously complied with the
procedures established in the Western District’s local rules. Judges Smith and Fenner
complained of Fletcher’s improper litigation tactics to Chief Judge Whipple. Chief
Judge Whipple then appointed counsel pursuant to the procedures established in W.D.
-16-
Mo. R. 83.6(h). After conducting an exhaustive investigation of Fletcher’s
misconduct, Appointed Counsel initiated formal disciplinary proceedings by filing
a 136-page motion for order to show cause, which also served to notify Fletcher of
specific factual allegations and formal charges of misconduct. Fletcher responded to
the charges, and the matter was set for hearing before a three-judge panel that
properly did not include either of the complaining judges. The three-judge panel
heard testimony from witnesses for both Appointed Counsel and Fletcher. The three-
judge panel then filed a report and recommendation, which was adopted in full by the
en banc court.
1. Scope of the Investigation
First, Fletcher argues the scope of Appointed Counsel’s investigation should
have been limited to “‘allegations of misconduct’ that came ‘to the attention of a
Judge of th[at] Court’ prior to the appointment.” Appellant’s Opening Brief at 16,
No. 04-2636 (8th Cir. 2005) (quoting W.D. Mo. R. 83.6(d)(1) & (h)). To the
contrary, there is simply no language in Western District’s local rules that limits the
scope of an appointed counsel’s investigation to allegations of misconduct known to
the court “prior to the appointment.” Appointed Counsel’s search for information
from those in the Kansas City legal community regarding other instances of Fletcher’s
professional misconduct was not only consistent with the terms of her appointment,
but was indispensable in determining whether Fletcher’s conduct during the
Honeywell litigation was an isolated violation of the ethical rules. Indeed, the
Western District even informed Fletcher of Appointed Counsel’s investigation. See
In re Flanagan, 690 A.2d 865, 873 (Conn. 1997) (noting that, during the
investigatory phase, the Due Process Clause does not require notice of the
sanctionable charges). Appointed Counsel also informed Fletcher of new allegations
as they were discovered during the course of her investigation.
-17-
2. Recusal of Judges Smith and Fenner
Second, Fletcher argues that the failure of the complaining judges, Judges
Smith and Fenner, to recuse themselves from the en banc order violated his due
process rights. We disagree. Local Rule 83.6(d)(4) requires only that the disciplinary
hearing be conducted before a panel of three judges of the Western District, none of
whom referred a predicate complaint. Neither Judge Smith nor Judge Fenner
participated in the three-judge panel that heard testimony, found Fletcher guilty of
professional misconduct and recommended sanctions.
There is nothing to suggest that the participation of the complaining judges in
the subsequent en banc order was improper. The Western District’s local rules do not
limit a complaining judge’s role in a disciplinary matter after the three-judge panel
makes its findings and recommendation. In general, doubt as to the impartiality of
a judge arises where “the judge [has] demonstrated bias or personal prejudice to the
parties.” A.J. by L.B. v. Kierst, 56 F.3d 849, 862 (8th Cir. 1995). A judge’s opinion
of an attorney is wrongful or inappropriate where “it is undeserved, or . . . rests upon
knowledge that the subject ought not to possess . . . or because it is excessive in
degree.” Liteky v. United States, 510 U.S. 540, 550 (1994). At most, Fletcher can
show only that Judges Smith and Fenner suspected him of professional misconduct
as a result of his conduct in matters before the Western District. No evidence
suggests that Judges Smith and Fenner formed opinions of Fletcher that were
undeserved, based on improper knowledge or excessive in degree.
Even if we were to hold that Judges Smith and Fenner should have recused
themselves from the en banc order, we would find the error to be harmless. See Bird,
353 F.3d at 638 (applying harmless error analysis to district courts’ failure to follow
precisely their procedural rules governing attorney discipline). The en banc court
unanimously accepted the three-judge panel’s factual findings and adopted the
recommended sanctions. Because the en banc order did not amend the findings or
-18-
recommendations made by the three-judge panel, Fletcher cannot demonstrate that
Judge Smith’s and Judge Fenner’s participation in the en banc order prejudiced the
investigatory or adjudicatory process.
3. Recusal of Judge Smith
Fletcher also argues that because Judge Smith recused himself from the
Honeywell litigation, Judge Smith was prohibited from participating in the decision
to initiate disciplinary proceedings. Again, we disagree. We do not know why Judge
Smith recused himself from the Honeywell litigation, and we are not inclined to
accept Fletcher’s invitation to speculate. Second, Fletcher has failed to demonstrate
how Judge Smith’s concern over Fletcher’s professional misconduct was tainted by
his decision to recuse himself from the Honeywell litigation. Indeed, we believe that
professional misconduct should be a matter of concern not only for the judges of the
Western District, but for all those admitted to practice before the court. Regardless,
the Honeywell litigation and Fletcher’s disciplinary proceedings are distinct matters
presenting different considerations for recusal. We also note Judge Smith’s concern
over Fletcher’s behavior as an attorney was apparent as early as the Ross case in
2000. See Ross, 197 F.R.D. at 657-58, 660. Finally, as discussed above, we do not
agree that Fletcher suffered any bias or prejudice from Judge Smith’s participation
in the decision to initiate an investigation or in the en banc order.
4. Pre-Hearing Discovery
Finally, Fletcher argues that the limitations on pre-hearing discovery placed on
him by the three-judge panel violated the Due Process Clause. Once again, we
disagree. The motion for order to show cause included a clear enumeration of the
charges against Fletcher and a thorough explanation of the bases for those charges.
As a result, Fletcher was on notice of the charges against him prior to the disciplinary
hearing. Prior to the hearing, the three-judge panel gave Fletcher the opportunity to
-19-
engage in reasonable discovery. Fletcher, however, made vague and unnecessary
requests for discovery, such as requests to depose Judges Smith and Fenner,
Appointed Counsel and Maridee Edwards, which the three-judge panel denied.
During the hearing, Fletcher was able to cross-examine witnesses and call witnesses
of his own. After reviewing the transcript of the disciplinary hearing, we are
confident that the Western District afforded Fletcher every protection of the Due
Process Clause when it gave him notice of the charges of misconduct, an opportunity
to engage in discovery and a hearing on the charges against him. See Stuart, 249 F.3d
at 825 (finding no due process violation in the denial of a discovery request because
“[a]ttorney discipline procedures require notice and an opportunity to be heard, but
they do not require all the constitutional protections provided in criminal
prosecutions”).
B. Western District’s Factual Findings and Conclusions
Fletcher also challenges the Western District’s substantive findings of
misconduct. We review the district court’s disciplinary order for abuse of discretion.
In re Hoare, 155 F.3d at 940. After carefully reviewing the record on appeal, we
conclude that there is sufficient evidence to support the Western District’s multiple
findings of professional misconduct by Fletcher. In particular, we agree that by
selectively quoting deposition testimony in a way that grossly mischaracterized
deponents’ statements, Fletcher went beyond zealous representation into deceptive
and misleading practices. Accordingly, we affirm.
C. Sanctions
Finally, Fletcher challenges the length of his three-year suspension from
practice before the Western District. The district court, like a state’s highest court,
is given “considerable leeway in meting out the sanctions imposed.” In re Hoare,
155 F.3d at 941 (quotation omitted). We review the terms of a disciplinary order for
-20-
abuse of discretion. In re Olkon, 795 F.2d 1379, 1384 (8th Cir. 1986). Given the
pervasiveness of the misconduct and Fletcher’s refusal to accept responsibility for his
actions, we are convinced that the Western District did not abuse its discretion in
imposing the three-year suspension.
III. CONCLUSION
For the reasons discussed above, we affirm the Western District’s en banc order
suspending Fletcher from the practice of law before that court for three years.
______________________________
-21-