In Re: Zohdy

United States Court of Appeals
Fifth Circuit
F I L E D
THE UNITED STATES COURT OF APPEALS February 13, 2006
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
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No. 05-00041
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IN RE: HANY A. ZOHDY
Petitioner
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Before JONES, Chief Judge, KING and DENNIS, Circuit Judges.
PER CURIAM:*
This is a reciprocal discipline proceeding against attorney
Hany A. Zohdy. The Supreme Court of Louisiana suspended Zohdy
for three years, with one year deferred, based on Mr. Zohdy’s
conduct in two class action cases. In re Zohdy, 892 So. 2d 1277
(La. 2005).
As a result of the suspension order, this court issued an
order to Mr. Zohdy to show cause why he should not be suspended
as a member of this court’s bar. Mr. Zohdy responded and
requested oral argument.
Attorney discipline by a circuit court is governed by FED.
R. APP. P. 46, which states that a member of the federal
appellate court’s bar is subject to suspension or disbarment by
*
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that this opinion should not be published and is not precedent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.
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 he requests one. FED. R. APP. P.
46(b)(2), (3).
A hearing in the form of oral argument was held before a
three-judge panel on February 9, 2006. Mr. Zohdy appeared pro
se. The sole issue before this court is whether the suspension
by the Supreme Court of Louisiana supports the imposition of
reciprocal discipline.
Discipline by federal courts does not automatically flow
from discipline by other courts. Theard v. United States, 354
U.S. 278, 282 (1957). 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 “condition created by the judgment of the state court unless,
from an intrinsic consideration of the state record,” it appears:
(1) that the state proceeding was wanting in due process; (2)
that the proof of facts relied on by the state court to establish
misconduct was so infirm as to give rise to a clear conviction
that the court could not, consistent with its duty, accept the
state court’s conclusion as final; or (3) that to do so would,
for some other “grave” and sufficient reason, conflict with the
court’s duty not to disbar except upon the conviction that, under
2
the principles or right and justice, it is constrained to do so.
Selling v. Radford, 243 U.S. 46, 51 (1917).
The Selling analysis has been expressly adopted by the Fifth
Circuit. In re Dawson, 609 F.2d 1139, 1142 (5th Cir. 1980); In
re Wilkes, 494 F.2d 472, 476-77 (5th Cir. 1974). Mr. Zohdy has
the burden of showing why this court should not impose reciprocal
discipline. In re Calvo, 88 F.3d 962, 966 (11th Cir. 1996).
After conducting a review of the record of the state court
court proceeding,1 and after thoroughly considering the response
to the show cause order, the hearing memorandum filed by Mr.
Zohdy, and his oral argument, we find none of the types of
infirmities identified in Selling that would militate against the
imposition of reciprocal discipline.2
IT IS ORDERED that Hany A. Zohdy is suspended from
practice as a member of the bar of this court. If and when Mr.
Zohdy is reinstated as a member in good standing of the Louisiana
bar, he may apply to the clerk of court for authorization by the
Chief Judge to resume practice as a member of the bar of this
court.
1
This court obtained from the Supreme Court of Louisiana
the record of Mr. Zohdy’s disciplinary proceeding.
2
Mr. Zohdy’s Motion to Exceed Page Limits is granted.
3