In re: Bello v.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 26, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
In Re:
GANY M IK E BELLO, ESQ., No. 06-2199
(D.C. M isc. No. 2006-06)
Appellant. (D . N.M .)
OR D ER AND JUDGM ENT *
Before BR ISC OE, M cKA Y, and GORSUCH, Circuit Judges.
The United States District Court for the District of New M exico suspended
attorney Gany M ike Bello for unprofessional conduct, a decision M r. Bello now
appeals to us arguing that the district court exceeded its authority and failed to
afford him due process. Following a careful review of the record, we conclude
that the district court acted in accord with its rules and inherent authority, and
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G ).
The case is therefore ordered submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
that it afforded M r. Bello generous notice and repeated opportunities to be heard.
Accordingly, we affirm.
I
M r. Bello is an attorney who was, as of 2004, admitted to practice in the
United States District Court for the District of New M exico. In that capacity, he
appeared before the court as counsel in two civil matters giving rise to the current
disciplinary proceedings, No. 04-CV-271, Wheeler v. American Heritage Bank,
and No. 04-CV-399, Drain v. Wells Fargo Bank. In the course of his
representation, according to the district court, M r. Bello consistently and over a
period of two years behaved abusively tow ard opposing counsel and the court
alike. W hile a full appreciation of the charges against him can be had only by
examining the district court’s decisions, Wheeler, No. 04-CV-271 (D . N.M .
Oct. 29, 2004) (dismissing complaint with prejudice); Drain, No 04-CV-399
(D. N.M . M ar. 2, 2006) (same), and our own in Drain, No. 06-2096, 2007 W L
756438 (10th Cir. M ar. 14, 2007) (unpublished), it suffices to report here that
M r. Bello’s alleged conduct extended well beyond the pale of zealous advocacy
and involved making unfounded charges against opposing counsel, disregarding
court orders, misrepresenting relevant facts and law, and exhibiting a profound
lack of respect for the judicial process. W hen it determined that M r. Bello was
unresponsive to lesser sanctions, the district court dismissed both Wheeler and
Drain with prejudice.
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After the cases were dismissed, the district judge presiding over the Drain
litigation directed M r. Bello to show cause before a three-judge disciplinary panel
why his privilege to practice in the District of New M exico should not be
revoked. M r. Bello responded by asking the court to enjoin disciplinary
proceeding because Drain (decided by this court in M arch 2007) was then still
pending on appeal. The court declined to do so, however, and it eventually
suspended him. Still, the court acknowledged “that the appellate process ha[d]
not run its course,” and it therefore decided “not [to] enter a permanent discipline
until the appellate process ha[d] finished.” Aplt. App. at 92. In the interim, and
“[u]ntil further ordered,” the terms of the court’s suspension order precluded
M r. Bello from practicing before it unless he “associate[d] with a licensed
attorney who is authorized to practice in, and fully in good standing with, the
United States District Court for the District of New M exico.” Id. M r. Bello was
also restricted from filing any pleading “unless it ha[d] been reviewed, approved,
and signed as to form only by [the described] associate attorney.” Id.
Additionally, the court ordered M r. Bello to pay any such attorney his or her
hourly rate for all w ork reviewed.
On appeal, M r. Bello argues that the district court (1) exceeded its authority
to suspend him; and (2) violated his right to due process by giving him inadequate
notice of the allegations against him and denying him an opportunity to respond
to those allegations.
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II
Before addressing the merits of this, or any, appeal, we must of course first
cross the threshold issue of our jurisdiction. Generally, courts of appeals have
jurisdiction only over final decisions of the district courts. 28 U.S.C. § 1291;
United States v. Dickstein, 971 F.2d 446, 447-48 (10th Cir. 1992). Attorney
discipline orders, including suspensions from practice, however, have long been
treated as qualifying final decisions. In re M artin, 400 F.3d 836, 840-41 (10th
Cir. 2005); M attox v. Disciplinary Panel of U.S. Dist. Court for Dist. of Colo.,
758 F.2d 1362, 1364 (10th Cir. 1985). In this case, the district court held
M r. Bello suspended “[u]ntil further ordered.” A plt. App. at 92. This language is
materially indistinguishable from the language employed by the district court in
M attox, where we found jurisdiction over an order suspending an attorney “for an
indefinite period of time and until further Order of the Court.” 758 F.2d at 1364(quotation and brackets omitted). Coupling this with the fact that the suspension
already imposed on M r. Bello has a definite effect on his professional reputation,
which is generally sufficient to support appellate jurisdiction, cf. Butler v.
Biocore M ed. Techs., Inc., 348 F.3d 1163, 1168-69 (10th Cir. 2003), we are
satisfied that jurisdiction exists to consider this appeal. We therefore proceed to
its merits, mindful that the district court’s decision to suspend M r. Bello is
reviewed for an abuse of discretion. In re M artin, 400 F.3d at 841.
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III
1. The district court’s suspension order was predicated on a local rule
providing that “[t]he Court, sua sponte or upon recommendation by the State Bar
of New M exico Disciplinary Board, may discipline, suspend or disbar an attorney
under D.N.M .LR-Civ. 83.9.” 1 D.N.M .LR-Civ. 83.10. Though not entirely clear
from his brief, M r. Bello seems to suggest that the district court improperly
exceeded its authority under D.N.M .LR-Civ. 83.10 by disciplining him for simply
failing to understand the rules of practice.
M r. Bello’s argument misconstrues the authority of federal courts to
regulate the practice of attorneys before them. The District of New M exico has
“inherent supervisory power” over the conduct of attorneys appearing in its
courtrooms, United States v. Ryans, 903 F.2d 731, 734 n.4 (10th Cir. 1990), and
this power includes the ability “to control admission to its bar and to discipline
attorneys who appear before it,” Chambers v. NASCO, Inc., 501 U.S. 32, 43
(1991). The district court exercised its authority under D .N.M .LR-Civ. 83.10 to
suspend M r. Bello for a host of law ful reasons, perhaps the least of which was his
apparent ignorance (or disregard) of basic practice rules.
1
“The Rules of Professional Conduct adopted by the Supreme Court of the
State of N ew M exico apply except as otherw ise provided by local rule or by Court
order. See, e.g., D.N.M .LR-Civ. 83.4(c). Lawyers appearing in this District must
comply with the section for lawyers of ‘A Creed of Professionalism of the New
M exico Bench and Bar.’” D.N.M .LR-Civ. 83.9.
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2. M r. Bello further contends he was denied due process because the
district court’s show cause order did not “include any exhibits []or contain any
attachments,” “was void of any specific fact[] allegations,” and “w as conclusory
and failed to provide due process notice of what the specific charges [were]
against” him. Aplt. Br. at 13.
To be sure, an attorney subject to disciplinary proceedings is entitled to
procedural due process. Razatos v. Colo. Suprem e Court, 746 F.2d 1429, 1435
(10th Cir. 1984). Although this does not necessitate the provision of “the full
panoply of rights afforded to an accused in a criminal case,” id. (quotation
omitted), an attorney subject to discipline is entitled to receive reasonable notice
of the allegations against him and an opportunity to respond, M attox, 758 F.2d at
1368-69. That manifestly occurred here.
The district court first directed M r. Bello on January 25, 2006, to show
cause why his privilege to practice in that court should not be revoked. The
court’s order proceeded, moreover, to specify the matters on which he needed to
respond – alleging that he “lacks a basic understanding of the rules of practice,
abuses opposing counsel with specious charges and allegations and lacks respect
for the judicial tribunal.” Aplt. App. at 3. The court also gave M r. Bello an
opportunity to respond at a hearing scheduled more than a month later, on
February 28, 2006. W hen M r. Bello filed a request for more information, the
court duly postponed the hearing for nearly another month, until M arch 22, 2006,
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and advised him that the information to be considered by the disciplinary panel
would include court records from the Wheeler and Drain litigation.
The day of the already-postponed hearing, M r. Bello faxed to the court a
request to enjoin the proceeding on the basis that he had been given supposedly
inadequate notice of the allegations against him. Although the court promptly
notified him that his request for an injunction would be heard immediately before
the show cause hearing, M r. Bello failed to appear.
On April 12, 2006, the court issued a ruling declining to enjoin the
disciplinary proceedings and provided a forty-three page memorandum detailing
further the factual basis of its earlier show cause order. The court then scheduled
yet another show cause hearing, this time for M ay 22, 2006, at which it invited
M r. Bello to respond to its detailed description of his conduct. Once again,
M r. B ello did not appear. Instead, he repeated his request for injunctive relief.
Finally, on June 6, 2006, the district court again denied M r. Bello’s request for
injunctive relief and issued its order of suspension.
Given the court’s prodigious efforts over a five month period to inform
M r. Bello of the allegations against him and provide him multiple opportunities to
be heard, both in writing and orally (in the latter case, three times, all of which
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were declined), M r. Bello’s assertion that he did not receive the process due him
can be described as nothing short of frivolous. 2
***
The judgment of the district court is affirmed.
Entered for the Court
Neil M . Gorsuch
Circuit Judge
2
M r. Bello asserts in his statement of issues that an attorney’s “respectful
disagreement” w ith a district court cannot be a proper basis for discipline. Aplt.
Br. at X VI. His brief, however, does not develop this particular argument, and in
fact, makes no further reference to this contention. W e therefore deem the
argument w aived. See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1202 n.4 (10th
Cir. 2003) (recognizing that failure to develop claim on appeal constitutes
waiver).
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