In re: Smith

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-00005
_____________________
IN RE: DAVID L. SMITH
Petitioner
_____________________
March 4, 2002
Before KING, Chief Judge, and REAVLEY and WIENER, Circuit Judges.
PER CURIAM:*
This is a reciprocal discipline proceeding against attorney
David L. Smith. It arises from actions taken by the United States
Court of Appeals for the Tenth Circuit and by the United States
District Court for the Northern District of Texas.
In 1993, the Tenth Circuit suspended Smith for filing
frivolous appeals and failing to pay court-ordered sanctions. In
re Smith, 10 F.3d 723 (10th Cir. 1993) (per curiam). The Tenth
Circuit subsequently disbarred Smith in 1996 for writing and
filing briefs on behalf of otherwise pro se litigants in
violation of his suspension order. In re Smith, 76 F.3d 335(10th Cir. 1996).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Smith’s membership in the bar of the Northern District of
Texas was revoked on November 21, 2000. In re Smith, 123 F.Supp.
2d 351 (N.D. Tex. 2000), aff’d, 275 F.3d 42 (5th Cir. 2001)
(table decision).1 The Northern District imposed this sanction
based on Smith’s disbarment by the Tenth Circuit.2 Smith resides
in Texas, and is a member in good standing of the State Bar of
Texas.
As a result of the Northern District’s revocation order and
the Tenth Circuit’s disbarment order, this court issued an order
requiring Smith to show cause why he should not be removed from
the roll of attorneys admitted to practice as a member of this
court’s bar. Smith responded and requested a hearing.3 His
written response essentially consisted of copies of the brief and
1
The Northern District’s disciplinary determination was
delegated to a three-judge panel. See In re Smith, 100 F.Supp.
2d 412 (N.D. Tex. 2000) (en banc) (per curiam). In an
unpublished opinion, a panel of this court found no
constitutional violation and no abuse of discretion in the
district court’s decision to disbar Smith. In re Smith, No. 01-
10011 (5th Cir. Sept. 26, 2001) (relying on Selling v. Radford,
243 U.S. 46, 51 (1917) and In re Dawson, 609 F.2d 1139, 1142 (5th
Cir. 1980)).
2
The Supreme Court of Colorado has imposed reciprocal
discipline and disbarred Smith based on the Tenth Circuit’s
actions. In re Smith, 989 P.2d 165 (Colo. 1999). In addition,
the Supreme Court of the United States has disbarred Smith for
failing to comply with an order of the Court. In re Disbarment
of Smith, 516 U.S. 984 (1995) (mem.); see also Qualls v. Regional
Transp. Dist., 516 U.S. 804 (1995) (mem.) (suspending Smith and
issuing an order requiring him to show cause why he should not be
disbarred).
3
Smith requested an en banc hearing. This court denied
that request by letter dated February 1, 2002.
2
the Petition for Rehearing En Banc that he filed in his appeal of
the Northern District’s disciplinary order.
Attorney discipline by a circuit court is governed by
Federal Rule of Appellate Procedure 46, which states that a
member of the federal appellate court’s bar is subject to
suspension or disbarment by the court if the member has been
suspended or disbarred from practice by any other court. The
member must be given an opportunity to show cause why he should
not be disciplined, and must be given a hearing, if requested.
Fed. R. App. P. 46(b)(2)-(3).
A hearing in the form of oral argument was held before a
three-judge panel on March 4, 2002. Smith appeared pro se. The
sole issue before this court is whether the Tenth Circuit’s
disbarment of Smith or the Northern District’s revocation of
Smith’s membership supports the imposition of reciprocal
discipline.
Discipline by federal courts does not automatically flow
from discipline by other courts. See Theard v. United States,
354 U.S. 278, 282 (1957). However, prior disciplinary
proceedings are of substantial relevance in determining whether
an attorney should no longer be allowed to practice before this
court. In re Evans, 834 F.2d 90, 91 (4th Cir. 1987). Smith has
the burden of showing why this court should not impose reciprocal
discipline. In re Calvo, 88 F.3d 962, 966 (11th Cir. 1996).
3
When considering reciprocal discipline based on a state
court discipline order, the Supreme Court has held that a federal
court should recognize and give effect to the the judgment of the
state court unless an “intrinsic consideration of the state
record” reveals that: (1) the state proceeding was wanting in due
process; (2) the evidence relied on by the state court to
establish misconduct was so infirm as to give rise to a clear
conviction that the federal court cannot, consistent with its
duty, accept the state court’s conclusion as final; or (3) there
is some other grave reason why giving effect to the state court
judgment would be inconsistent with the federal court’s duty not
to disbar except when constrained to do so by principles of right
and justice. Selling v. Radford, 243 U.S. 46, 51 (1917).4
The Selling analysis has been expressly adopted by the Fifth
Circuit when reviewing reciprocal discipline by a federal
district court based on a state court order. See In re Wilkes,
494 F.2d 472, 476-77 (5th Cir. 1974); In re Dawson, 609 F.2d
1139, 1142 (5th Cir. 1980). Selling has also been applied to
federal appellate court reciprocal discipline proceedings based
on a district court’s discipline order. In re Evans, 834 F.2d
90, 91 (4th Cir. 1987); In re Edelstein, 214 F.3d 127, 132 (2d
4
This court obtained from the Northern District of Texas
the complete record of that court’s disciplinary proceeding. As
indicated by Smith in his response to the show cause order, the
Northern District’s record includes the complete record of the
Tenth Circuit’s discipline proceeding.
4
Cir. 2000). We conclude that the standards set out in Selling
apply to this court’s determination whether to impose reciprocal
discipline based on discipline orders issued by other federal
courts.5
Smith claims that he was denied due process by the Tenth
Circuit because he did not receive a hearing, in violation of
Rule 46 of the Federal Rules of Appellate Procedure. In July
1995, the Tenth Circuit ordered Smith to indicate whether he had
written the briefs submitted by the pro se appellants in two
cases, and to indicate who had written the pro se briefs filed in
two other cases. All of these briefs were filed after the Tenth
Circuit suspended Smith for filing frivolous appeals. The July,
1995 order references Johnson v. Board of County Commissioners,
868 F.Supp. 1226 (D. Colo. 1994), which strongly criticizes the
practice of “ghost-writing,” wherein attorneys draft briefs for
pro se litigants but do not sign those briefs.
In his response, Smith took issue with the court’s reference
to Johnson and denied that he had “ghost-written” any briefs.
Smith claimed that he has “never participated in the writing of a
brief for a pro se litigant without disclosing his participation,
and has never refused to sign a brief written by him when
requested to do so by any court.”
5
The Northern District of Texas similarly determined
that the Selling factors applied to its consideration of
reciprocal discipline based on the Tenth Circuit’s order. See In
re Smith, 100 F.Supp. 2d 412 (N.D. Tex. 2000) (en banc) (per
curiam); In re Smith, 123 F.Supp. 2d 351 (N.D. Tex. 2000).
5
Dissatisfied with Smith’s response, the Tenth Circuit in
September 1995 again ordered Smith to indicate the extent of the
assistance he had provided the pro se appellants in cases after
the date of his suspension. Smith responded, under oath, that he
had written the briefs in the appeals referenced in the September
1995 order.6 However, Smith argued that he had not engaged in
“ghost-writing” because he had either signed his name to the
briefs, or included footnotes in which he acknowledged his
involvement.
The court then ordered Smith to show cause why he should not
be disbarred for writing briefs on behalf of third parties while
under suspension and for violating the suspension order. Smith
filed a written response and requested an evidentiary hearing.
After consideration of his response to the show cause order, as
well as his responses to the earlier orders, the Tenth Circuit
denied his request for an evidentiary hearing and entered an
order disbarring him.
Selling dictates that a court considering reciprocal
6
In his sworn response to the show cause order, Smith
stated:
Pursuant to the disciplinary panel’s (September 21,
1995) order, Mr. Smith hereby supplements his (August
7, 1995) Response to the Order to Show Cause Issued by
the Disciplinary Panel of the United States Court of
Appeals for the Tenth Circuit on July 18, 1995, and
Complaint of Judicial Misconduct Pursuant to 28 U.S.C.
§ 372(c) by again stating, under oath, that he wrote
the briefs in the appeals referenced in the (September
21, 1995) order.
6
discipline should “recognize the condition created by the
judgment” of the other court unless the other court’s “procedure,
from want of notice or opportunity to be heard, was wanting in
due process.” 243 U.S. at 51. Hence the question for this court
is whether the Tenth Circuit proceeding was wanting in due
process due to lack of notice or opportunity to be heard.
Smith was provided with specific notice of both the charges
against him and the fact that the court was considering
disbarment as possible discipline. He was also provided with an
opportunity to be heard in response to the show cause order for
disbarment. Given that Smith had already admitted to writing
the briefs in question prior to the Tenth Circuit’s issuance of
its show cause order, there was no factual dispute regarding
whether he had written and filed briefs on behalf of third
parties while under suspension. Under these circumstances, this
court finds no due process problems with the Tenth Circuit’s
proceeding that would constrain us from imposing reciprocal
discipline under Selling.7
Smith also argues that there was an infirmity of proof in
the Tenth Circuit disbarment proceeding, reasoning that, in the
7
This court has previously held that the absence of a
disciplinary hearing does not violate an attorney’s due process
rights when, after gathering evidence on the alleged misconduct,
the district court issued a show cause order regarding proposed
discipline and afforded counsel an opportunity to submit briefs
in his or her defense before ruling. NASCO, Inc. v. Calcasieu
Television and Radio, Inc., 894 F.2d 696, 706-07 (5th Cir. 1990),
aff’d on other grounds sub nom. Chambers v. NASCO, Inc., 501
U.S. 32 (1991).
7
absence of a hearing, there was no proof of misconduct at all.
On the contrary, the Tenth Circuit had in its possession briefs
filed during the term of Smith’s suspension that Smith had
either: (1) signed or (2) indicated his involvement with in a
footnote. In addition, the Tenth Circuit had Smith’s written
acknowledgment under oath that he had written these briefs.
Under these circumstances, we cannot say that there was such an
infirmity of proof as to give rise to a clear conviction that we
should reject the Tenth Circuit’s determination of misconduct.
Turning to the Northern District proceeding, Smith asserts
that he was denied due process because there was no independent
prosecutor and because he was denied an evidentiary hearing.8
This court has previously held that the due process rights of an
attorney in a disciplinary proceeding do not extend so far as to
guarantee the full panoply of rights afforded to the accused in a
criminal case. Sealed Appellant 1 v. Sealed Appellee 1, 211 F.3d
252, 254 (5th Cir. 2000). The absence of an independent
prosecutor does not violate an attorney’s rights to due process
in a disciplinary proceeding. Crowe v. Smith, 151 F.3d 217, 231-
33 (5th Cir. 1998); NASCO, 894 F.2d at 707. Moreover, an
8
Smith also argues that the Northern District’s local
rule regarding reciprocal discipline is unconstitutional because
it provides for automatic disbarment without affording prior
notice to the attorney. However, as the panel hearing his appeal
found, we need not reach this issue because it is clear from the
record that Smith was provided with fair notice and ample
opportunity to respond to the proposed discipline at issue in the
instant case.
8
evidentiary hearing is not required where the Selling criteria
are satisfied. In re Jacobs, 44 F.3d 84, 90 (2d Cir. 1990); In
re Jafree, 759 F.2d 604, 605 n.1 (7th Cir. 1985) (per curiam).
Additionally, in his written response, Smith claims that the
district court committed error and/or abused its discretion by
failing to find that there was “grave reason” justifying refusal
to impose reciprocal discipline (or, at a minimum, that there was
“grave reason” justifying imposition of substantially different
discipline) under the third prong of the Selling test. Smith
contends that there were a number of “grave reasons” justifying
departure from the findings of the Tenth Circuit, including:
(1)the five-year lapse of time between the Tenth Circuit’s
issuance of its disbarment order and the discipline proceedings
before the Northern District; (2) his belief that his conduct in
the Tenth Circuit did not constitute unethical behavior under the
local rules for the Northern District; and (3) his belief that
reciprocal disbarment by the Northern District constituted cruel
and unusual punishment.
The panel of this court that heard Smith’s appeal of the
Northern District’s disbarment decision has already rejected this
argument. Smith is now asserting that these factors supply grave
reason for this court not to impose reciprocal discipline. We
conclude that, under the standard established by Selling, none of
Smith’s asserted factors constitute a “grave reason” why giving
effect to the Northern District’s judgment would be inconsistent
9
with our duty to disbar only when constrained to do so by
principles of right and justice.
Finally, Smith argues that Judges Fitzwater and Means
(members of the three-judge panel that conducted the disciplinary
proceeding in the Northern District) must have been biased
against him because they had stayed cases in which Smith was
counsel of record pending resolution of his disciplinary
proceeding. We note that a judge’s rulings alone can almost
never support a complaint of personal bias. Liteky v. United
States, 510 U.S. 540, 555 (1994). Moreover, we find no support
for Smith’s allegation of bias in the instant case.
Smith makes a similar charge of bias against Chief Judge
Buchmeyer based on language in Chief Judge Buchmeyer’s denial of
Smith’s Petition for Relief from the disciplinary panel’s ruling.
In denying Smith’s petition, Chief Judge Buchmeyer noted that the
legal arguments contained in the petition were “totally without
merit.” Smith asserts that this statement evidences bias on the
part of Chief Judge Buchmeyer. However, the fact that Chief
Judge Buchmeyer found Smith’s legal arguments to be without merit
lends no support to Smith’s unsubstantiated claim of bias.
After conducting a review of the records of the proceedings
conducted by the Tenth Circuit and the Northern District, and
after thoroughly considering the response filed by Smith in this
matter and his testimony at the hearing, we find no infirmities
10
of the type identified in Selling that would militate against the
imposition of reciprocal discipline.
IT IS ORDERED that David L. Smith is removed from the roll
of attorneys admitted to practice as a member of the bar of this
court.
11