In Re: John Scannell , 411 F. App'x 110 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 21 2011
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: JOHN R. SCANNELL, Esquire, No. 10-35197
D.C. No. 74-cv-01234-SUP
JOHN R. SCANNELL, Esquire,
Appellant. MEMORANDUM *
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted November 4, 2010
Seattle, Washington
Before: B. FLETCHER and BYBEE, Circuit Judges, and WILKEN, District
Judge.**
In November 2009, the Washington State Supreme Court suspended John
Scannell from the practice of law. Thereafter, the federal district court for the
Western District of Washington issued an order imposing reciprocal discipline on
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.
Scannell, temporarily suspending him from practice.1 Scannell appeals, arguing
that the district court erred in issuing its order of reciprocal suspension.
The facts underlying Scannell’s suspension and ultimate disbarment for
misconduct are known to the parties and need not be repeated here. A brief
recitation of the procedural history of this matter, however, is helpful. The
Washington State Bar Association initiated two separate investigations arising
from complaints against Scannell for alleged misconduct. Scannell refused to
cooperate by declining to furnish requested information. Consequently, the
Washington State Bar Association filed a formal complaint against Scannell,
alleging four counts of misconduct in contravention of various Rules of
Professional Conduct.
Following lengthy delays caused by Scannell, a disciplinary hearing finally
was held over a four-day period. Scannell was present and able to participate fully.
The Hearing Officer entered his Findings of Fact, Conclusions of Law, and
Recommended Sanction, concluding that Scannell had, in fact, violated various
Rules of Professional Conduct. After hearing argument from both Scannell and the
Hearing Officer, and reviewing the Hearing Officer’s findings, the Disciplinary
Board unanimously concluded that Scannell should be disbarred. The Washington
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Scannell has since been disbarred by the Washington State Supreme Court.
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State Bar Association then submitted its Petition for Interim Suspension to the
Washington State Supreme Court. The Court granted the petition for suspension.
Subsequently, the Washington State Bar Association issued a Notice of Interim
Suspension to the federal district court of the Western District of Washington.
Upon receipt thereof, the district court issued an Order to Show Cause why
reciprocal discipline should not be imposed; Scannell filed a response. The district
court concluded that reciprocal discipline was warranted, and ordered Scannell
temporarily suspended from the practice of law in the federal district court for the
Western District of Washington effective immediately and continuing until all
pending disciplinary proceedings against Scannell had been resolved.
A state court’s disciplinary action is not conclusively binding on federal
courts. In re Kramer, 193 F.3d 1131, 1132 (9th Cir. 1999) (citing Theard v. United
States, 354 U.S. 278, 281–82 (1957)). Rather, a federal court may impose
reciprocal discipline on a member of its bar based on a state’s disciplinary
adjudication if an independent review of the record reveals: (1) no deprivation of
due process; (2) sufficient proof of misconduct; and (3) that no grave injustice
would result from the imposition of such discipline. Id. (citing Selling v. Radford,
243 U.S. 46, 50–51 (1917)). Although the federal courts generally lack subject
matter jurisdiction to review state court decisions, see D.C. Court of Appeals v.
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Feldman, 460 U.S. 462, 486 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
415–16 (1923), a federal court may nevertheless “examine a state court
disciplinary proceeding if the state court’s order is offered as the basis for
suspending or disbarring an attorney from practice before a federal court.”
Kramer, 193 F.3d at 1132–33 (citing MacKay v. Nesbett, 412 F.2d 846, 846–47
(9th Cir. 1969)). While this court independently may examine the state court
record, it “must accord a presumption of correctness to the state court factual
findings.” In re Rosenthal, 854 F.2d 1187, 1188 (9th Cir. 1988) (per curiam).
Here, the district court gave Scannell notice and an opportunity to file a
written response as to why reciprocal discipline ought not be imposed. Scannell
did so. The district court reviewed Scannell’s written submission and concluded
that a presumption of correctness of the reciprocal discipline applied to Scannell’s
case. The district court then evaluated the Selling factors, and concluded that
“none of the elements for declining to apply reciprocal discipline are present in this
case.”
After our independent review of the record and application of the Selling
factors, we conclude that the district court did not err in its findings. The extensive
record before us demonstrates that the Disciplinary Board afforded Scannell
multiple opportunities to be heard. Instead of taking any of these opportunities and
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fulfilling his professional obligations to answer to the charges of misconduct,
Scannell engaged in a prolonged pattern of obstruction and delay arguably
designed to thwart the Washington State Bar Association’s investigations. The
record is replete with evidence of misconduct meriting sanction. We conclude that
no injustice, grave or otherwise, would result from the imposition of reciprocal
discipline.
For these reasons, the district court’s order imposing reciprocal discipline is
AFFIRMED.
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