In Re: Donna Grodner

Case: 14-98001 Document: 00512824045 Page: 1 Date Filed: 11/03/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-98001 FILED
Summary Calendar November 3, 2014
Lyle W. Cayce
Clerk
In re: DONNA GRODNER,
Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:14-MC-50
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
Attorney Donna U. Grodner challenges her sixty-day suspension from
practicing in the Middle District of Louisiana. Finding that none of the
numerous arguments she raises to challenge the suspension order are
meritorious, we affirm.
I.
The disciplinary proceeding against Grodner arose out of her conduct in
a civil case before Chief Judge Brian A. Jackson in the Middle District of
Louisiana. In connection with her representation of inmate Darrin Robinson
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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in a civil rights case against the State of Louisiana, Grodner filed a motion
requesting that certain inmates housed in the same correctional facility as
Robinson be allowed to provide testimony by video. The state did not oppose
this form of testimony. Judge Jackson denied the order, however, requiring
the incarcerated inmates to appear in court. As a result, Grodner filed five
new motions requesting that the district court subpoena certain inmates to
testify in court. Grodner styled those motions “unopposed,” although she
admittedly never contacted opposing counsel to confirm this. Even after
opposing counsel filed a memorandum clarifying their opposition to the
subpoenas, Grodner proceeded to file three more “unopposed” motions
requesting subpoenas.
Before trial was set to begin, the district court held a hearing on the
pending motions, including Grodner’s “unopposed” requests for subpoenas.
The district court confronted Grodner about her misrepresentations, and the
following colloquy ensued:
BY THE COURT: [Y]ou represented in your motions
for the issuance of subpoenas to witnesses that the
State didn’t object to some of these. Now I’m informed
by the state that, yes, they do object to the issuance of
subpoenas to certain of those.
...
BY MS. GRODNER: And, your Honor, the reason that
was put, because your Honor issued an order saying
that they would have to be live testimony. Now, they
had motions pending . . . so, that your Honor issued a
ruling that has to be live testimony, we didn’t know
that there was any objection to [there] being live
testimony. . . .
BY THE COURT: . . . Did you confer with Ms. Collier,
Mr. Sanders or anyone else at the Attorney General’s
Office before you included in your motion that the
State had no objection?
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BY MS. GRODNER: No, your Honor. It was simply on
the judge’s order. . . .
BY THE COURT: Do you understand that there’s a
huge difference between according to the judge’s order,
we can do this, and saying that the state has no
objection? You essentially lied to me.
BY MS. GRODNER: I didn’t intend it to be a lie, your
Honor. I just intended to get – there was only two
ways the witnesses can be produced, either video or ad
testificandum.
BY THE COURT: I’m not talking about the substance
here. I’m talking about the fact that you represented
to the Court in a pleading filed in my court, that . . .
the defendants had no objection to the issuance of
these – of subpoenas when, in fact, they had objections.
And not only that, there wasn’t even any
misunderstanding. Because by your own admission,
you didn’t even bother to check with the state about
that. . . . I’m going to give you an opportunity, one
opportunity, to address that before I make a ruling on
the motion – on the order to show cause. Because I’m
going to tell you right now. I just flat out think that’s
a gross misrepresentation to the Court. . . . I’m at a
loss to explain how you could have included that
language in your motion.
BY MS. GRODNER: Simply because your Honor had
ordered it had to be the other way. So, that, to me,
indicated it was, you know, that’s an ex parte motion.
...
BY THE COURT: The fact of the matter is, is that you
admitted that, although you’ve indicated in the motion
that you conferred with counsel, there was no
opposition, you didn’t, in fact, confer with counsel to
ensure that there was no opposition.
And, so, on that basis, I will issue sanctions, Ms.
Grodner. And I’m going to counsel you that if that
happens again you will be removed from the roles of
this Court and you will not be permitted to practice
within the Middle District ever again.
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After the conclusion of the trial, Chief Judge Jackson issued an Order to
Show Cause, requiring Grodner to explain why she should not be sanctioned
for her misrepresentations. As the bases for potential disciplinary action, the
Order cited the Middle District of Louisiana’s Local Rules 83.2.4 1 and 83.2.8; 2
Louisiana Rules of Professional Conduct 3.3 (candor toward the tribunal), 3.4
(fairness to opposing party and counsel), 4.1 (truthfulness in statements to
others), and 8.4(c) (stating that it is professional misconduct for a lawyer to
“[e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation”);
and the district court’s inherent powers. The district court also notified
Grodner that a hearing would be set for August 21, 2014, and that possible
sanctions could include “reprimand, ethics training, suspension, disbarment,
and/or the payment of a civil fine.”
Grodner filed a response in advance of the hearing and unsuccessfully
requested that Chief Judge Jackson not be involved in hearing the matter. At
the hearing, the en banc district court laid out the procedural rules governing
the hearing and reiterated, at Grodner’s attorney’s request, the bases for the
Order to Show Cause. Grodner testified on her own behalf in front of the four
judges but did not call any other witnesses. On September 2, 2014, the judges
suspended Grodner from admission to the district court for a sixty-day period.
Grodner timely appeals.
1 “This court hereby adopts the Rules of Professional Conduct of the Louisiana State
Bar Association, as hereafter may be amended from time to time by the Louisiana Supreme
Court, except as otherwise provided by a specific rule or general order of a court.”
2 “Everyone who appears in court in proper person and every attorney permitted to
practice in this court shall be familiar with these rules. Willful failure to comply with any of
them, or a false certificate of compliance, shall be cause for such disciplinary action as the
court may see fit, after notice and hearing.”
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II.
“Courts enjoy broad discretion to determine who may practice before
them and to regulate the conduct of those who do.” United States v. Nolan, 472
F.3d 362, 371 (5th Cir. 2006). Therefore, although we review de novo whether
an attorney’s actions were actually misconduct subject to sanctions, we review
only for abuse of discretion whether the form of discipline was appropriate. In
re Sealed Appellant, 194 F.3d 666, 670 (5th Cir. 1999).
Grodner presents several arguments on appeal that can be grouped as
follows: (1) the district court lacked subject matter jurisdiction over the
disciplinary proceeding; (2) there is no private cause of action to enforce a
federal court’s Local Rules or state rules of professional conduct; (3) there was
insufficient evidence to support the charge of misconduct; and (4) Grodner was
not afforded due process because she was not notified of the witnesses and
evidence that would be considered and the adjudicators were not impartial.
We can easily dispose of her first two arguments which are frivolous in
light of well-established case law authorizing district courts to hold
disciplinary hearings for attorneys admitted to practice before it. “It is beyond
dispute that a federal court may suspend or dismiss an attorney as an exercise
of the court’s inherent powers.” Resolution Trust Corp. v. Bright, 6 F.3d 336,
340 (5th Cir. 1993) (citing In re Snyder, 472 U.S. 634, 643–44 (1985)); see also
Crowe v. Smith, 151 F.3d 217, 229–30 (5th Cir. 1998) (collecting cases); Flaksa
v. Little River Marine Constr. Co., 389 F.2d 885, 888 n.10 (5th Cir. 1968) (“The
power of a court to discipline members of its own bar can scarcely be doubted
seriously. An attorney is under no obligation to seek admission to the bar of a
United States district court. . . . But when he does apply and is admitted he
secures certain privileges and also assumes definite obligations.” (citation
omitted)). Grodner’s arguments about a private right of action ignore that the
hearing did not involve a suit against her for money, but rather a
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determination whether alleged unprofessional conduct should result in the
relinquishment of the privilege of practicing in federal court. And her concern
about a federal court enforcing state rules of professional conduct is off the
mark because the Middle District of Louisiana’s Local Rules incorporate the
state rules, see LR83.2.4, and the court did not take any action with respect to
her state bar membership.
As to Grodner’s due process challenges, although a federal court’s
disciplinary proceedings are quasi-criminal, they do not require the same
constitutional safeguards attendant to criminal proceedings. See,e.g., Sealed
Appellant 1 v. Sealed Appellee 1, 211 F.3d 252, 254–55 (5th Cir. 2000)
(“[A]ttorney discipline proceedings require proof only be clear and convincing
evidence, as opposed to ‘beyond a reasonable doubt.’”). Grodner repeatedly
analogizes and cites to cases involving criminal contempt in arguing, among
other things, that an independent prosecutor should have been appointed. But
those cases are inapposite. 3 In a criminal contempt proceeding, which can
result in a loss of liberty, “there must actually be an independent prosecutor of
some kind, because the district court is not constitutionally competent to fulfill
that role on its own.” Crowe, 151 F.3d at 227–28 (emphasis in original). There
is no such requirement in an administrative disciplinary proceeding, which
“implicates an independent and fundamental duty of the district court.” Id. at
230. (“[O]ur precedent emphatically dismisses such extensive procedural hoop-
jumping for the far less serious disciplinary sanctions of suspension and
reprimand.”).
3 Throughout the proceedings and on appeal, Grodner also repeatedly refers to Rule
11 sanctions and the accompanying “snapshot rule.” As the district court repeatedly clarified,
“[t]his is a disciplinary proceeding for the failure of a lawyer admitted to practice in this court
to abide by [the local rules].” Therefore, like her arguments that relate to contempt
proceedijngs, her arguments concerning Rule 11 sanctions are also not helpful because she
was not sanctions under Rule 11.
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We also do not agree with Grodner’s claims that she was deprived of
other procedural safeguards required by due process. Attorneys facing
discipline are entitled to fair notice of the charge and an opportunity to be
heard. In re Ruffalo, 390 U.S. 544, 550 (1968); In re Sealed Appellant, 194 F.3d
at 670. Only rarely, however, will more be required. Sealed Appellant 1, 211
F.3d at 254. The district court checked all the required procedural boxes:
Grodner was warned by the district court that she was on thin ice during the
pretrial hearing in Robinson; she received an Order to Show Cause detailing
the bases for the disciplinary action and the date of the hearing; she was
allowed to respond in writing in advance of the hearing; and a hearing was
held at which she had an opportunity to testify on her own behalf. During the
hearing itself, the district court was meticulous in creating a record that
reflects the court’s consideration of Grodner’s due process rights. The district
court explained that the hearing was “to afford [Grodner] her due process right
to be heard and to explain and or rebut the information contained in the order
to show cause,” and it detailed the “procedural requirements that must be
found before sanctions may be imposed . . . just to ensure that the record is
clear.” In the same vein, the district court did not use other cases or instances
of fault to enhance Grodner’s penalty. It is clear from the record that the
district court considered only the Robinson-related misrepresentations in
deciding to suspend Grodner, even though it mentioned other instances of
unprofessionalism in the Order to Show Cause and at the hearing for “context.”
Given this record, we cannot say that Grodner’s due process rights were
violated.
Finally, we address Grodner’s arguments concerning the merits of the
suspension order. We agree with the district court that there was clear and
convincing evidence of misconduct, see In re Sealed Appellant, 194 F.3d at 670,
in that Grodner made affirmative misrepresentations while serving as counsel
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in Robinson. In terms of the punishment imposed, Grodner’s sixty-day
suspension is anything but excessive. Thus, the district court did not abuse its
discretion in formulating a proper punishment.
For these reasons, we AFFIRM Grodner’s sixty-day suspension from the
Middle District of Louisiana.
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