In Re: Norman Silverman

Case: 19-40295 Document: 00515806234 Page: 1 Date Filed: 04/02/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 2, 2021
No. 19-40295
Lyle W. Cayce
Clerk
In re: Norman Silverman,
Plaintiff—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC 4:19-MC-4
Before Ho, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Norman Silverman neglected to tell the United States District Court
for the Eastern District of Texas that two other federal district courts had
previously disciplined him for professional misconduct. In accordance with
local rules, the district court imposed reciprocal discipline on Silverman,
suspending his ability to practice law in the Eastern District of Texas and
removing him from two pending cases.
Silverman argues that the district court abused its discretion in
imposing that discipline. He also argues that the district judge should have
recused herself because his past disciplinary record—information that
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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Silverman himself failed to disclose—constituted “extrajudicial
information” that required recusal. Finding that the district court correctly
imposed reciprocal discipline and denied Silverman’s motions for recusal, we
affirm.
I.
Three federal district courts have disciplined Norman Silverman for
misconduct.
The first was the United States District Court for the Western District
of Pennsylvania. In 2014, that court granted Silverman pro hac vice status to
represent his client in a criminal trial. According to the Western District of
Pennsylvania, Silverman’s conduct during that trial displayed a lack of regard
for the judicial process and for the court’s authority. Throughout the trial,
Silverman repeatedly violated the court’s evidentiary orders, failed to label
his exhibits in advance of trial, failed to have a working copy of the
government’s exhibits at hand, repeatedly refused to limit his cross-
examination of witnesses to the scope of their direct examination, and
frequently continued the same line or character of questions after the court
sustained a non-form objection.
At one point during the trial, the government moved to revoke
Silverman’s pro hac vice status. Had Silverman’s co-counsel been prepared
to try the case, it appears the court would have granted the motion mid-trial
and possibly placed Silverman in jail. Because of Sixth Amendment
concerns, however, the court declined to revoke Silverman’s pro hac vice
status during the trial.
By the time trial was over, Silverman had racked up $4,300 in
sanctions, which he had not paid despite the district court’s contempt order
directing him to do so. Instead of paying, Silverman withdrew as counsel,
and another attorney agreed to represent his client for sentencing. Finding
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there were no longer Sixth Amendment concerns, the court issued a sharp
rebuke of Silverman’s conduct and revoked his pro hac vice status in May
2016.
The second court to discipline Silverman was the United States
District Court for the Western District of Texas. As a member of the bar of
that court, Silverman moved to continue the trial of one of his clients because
he was unprepared for trial. Silverman admitted that he provided his client
inadequate assistance of counsel, which the district court characterized as “a
shocking display of attorney misconduct.” As a result, in early 2018, a
disciplinary panel concluded that Silverman violated five rules of professional
conduct and suspended him from practicing law in the Western District of
Texas for 120 days.
The third court to discipline Silverman was the United States District
Court for the Eastern District of Texas, where he was also barred. In 2019,
Silverman was representing two clients in two different cases in that court.
When the government in one of those cases alerted the court that Silverman
had failed to disclose the disciplinary actions taken by the Western District
of Pennsylvania and the Western District of Texas, the court issued a show
cause order as to why reciprocal discipline should not be imposed in
accordance with local rules.
Silverman responded by moving to disqualify the district judge—
twice—on the grounds that the government’s reply to the show cause order
was intended to prejudice the court and that the government’s advisories
regarding Silverman’s disciplinary record constituted extrajudicial
information that called into question the court’s partiality. The district court
denied Silverman’s motion and imposed a 120-day suspension on
Silverman’s ability to practice in the Eastern District of Texas as reciprocal
discipline for his misconduct in the Western District of Texas. It also
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removed him from representing his two clients in the Eastern District of
Texas as reciprocal discipline for the revocation of his pro hac vice status in
the Western District of Pennsylvania. Silverman now appeals the reciprocal
discipline for the revocation of his pro hac vice status and the district court’s
denial of his motion for recusal.
II.
“Courts enjoy broad discretion to determine who may practice before
them and to regulate the conduct of those who do.” United States v. Nolen,
472 F.3d 362, 371 (5th Cir. 2006). Accordingly, we review a district court’s
decision to discipline an attorney for abuse of discretion. Id. (citing United
States v. Dinitz, 538 F.2d 1214, 1219 (5th Cir. 1976)). “In making that inquiry,
we review the district court’s findings of fact for clear error and its
application of the relevant rules of attorney conduct de novo.” Id. (citing
United States v. Snyder, 707 F.2d 139, 144 (5th Cir. 1983)).
The Eastern District of Texas’s local rules provide that if a member
of the bar “loses, either temporarily or permanently, the right to practice law
before any state or federal court for any reason,” the court shall issue an order
directing the attorney to show cause why “identical discipline” should not
be imposed. E.D. Tex. L.R. AT-2(b) (2018). There are some exceptions,
but they are not relevant here. An attorney may show cause by establishing
that “the imposition of the identical discipline would result in a grave
injustice,” or that “the misconduct established by the other jurisdiction
warrants substantially different discipline in this court,” as well as through
other defenses not relevant here. Id. AT-2(b)(2). If the attorney fails to show
cause, “the court shall enter the identical discipline to the extent
practicable.” Id.4
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As reciprocal discipline for the Western District of Pennsylvania’s
revocation of Silverman’s pro hac vice status, the district court removed
Silverman from representing his two clients in the Eastern District of Texas.
First, Silverman argues that the revocation of pro hac vice status is not
a loss of “the right to practice law” because pro hac vice status is case-
specific and generally considered a privilege and not a “right.” He asserts
that pro hac vice status is not a “right” because it is subject to conditions and
wholly discretionary. Therefore, he contends, the district court erred by
imposing reciprocal discipline based on disciplinary action not covered by
local rules.
Silverman is wrong. The Eastern District of Texas’s local rules
expressly contemplate that “the right to practice law” is subject to certain
rules, like the rules of professional conduct. See E.D. Tex. L.R. AT-2(a)
(2018) (“The standards of professional conduct adopted as part of the Rules
Governing the State Bar of Texas shall serve as a guide governing the
obligations and responsibilities of all attorneys appearing in this court.”).
What’s more, every admission to the bar is conditioned upon compliance
with various rules and is therefore discretionary. If an attorney repeatedly
engages in misconduct, he or she will likely lose “the right to practice law”
regardless of whether that attorney is admitted temporarily as pro hac vice or
as a full member of the bar. Thus, Silverman’s distinction based on the
discretionary nature of pro hac vice status makes no difference. If it did, then
no bar admission would count as the “right to practice law.” The revocation
of pro hac vice status is clearly a loss of “the right to practice law” under the
rule.
Second, Silverman asserts that even if the Western District of
Pennsylvania’s revocation of his pro hac vice status triggered reciprocal
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discipline, the district court abused its discretion by removing him from his
two pending cases in the Eastern District of Texas.
Given the gravity of Silverman’s conduct in the Western District of
Pennsylvania, the district court’s decision to remove Silverman from two
pending cases in the Eastern District of Texas was not an abuse of discretion.
See In re Sealed Appellant, 194 F.3d 666, 673 (5th Cir. 1999) (“The question
before us is not whether we would disbar [the attorney] but, rather, whether
the district court abused its discretion in doing so.”). The Eastern District
of Texas’s local rules require courts to impose “identical discipline to the
extent practicable.” E.D. Tex. L.R. AT-2(b)(2) (2018). Revocation of
Silverman’s pro hac vice status in the Western District of Pennsylvania
meant that he was no longer able to represent his client in that district. The
Eastern District of Texas closely matched that consequence by removing
Silverman from representing his two clients in that district. Silverman
identifies no authority to the contrary, much less one requiring a different
sanction.
Silverman responds that because his two pending cases in the Eastern
District of Texas had not gone to trial, removing him from those cases was
“significantly more punitive” than the Western District of Pennsylvania’s
revocation of his pro hac vice status after trial concluded. Not so.
Silverman’s misconduct in the Western District of Pennsylvania was
egregious—so much so that the court in that case was ready to revoke
Silverman’s pro hac vice status mid-trial. The only thing that stopped the
court from doing so was a lack of available substitute counsel—a
circumstance that does not negate or excuse Silverman’s misconduct. The
district court properly considered these circumstances in imposing reciprocal
discipline.
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For his part, Silverman still does not appear to appreciate the gravity
of his misconduct, arguing instead that the revocation of his pro hac vice
status had “no real implications” because he withdrew at the end of trial.
This is wrong. The Western District of Pennsylvania revoked Silverman’s
pro hac vice status because of repeated instances of misconduct. This was
not an empty formality. It was a statement to Silverman that he was no longer
permitted to practice law in that court.
Finally, Silverman also argues that removing him from representing
one of his clients in the Eastern District of Texas would infringe upon that
client’s Sixth Amendment right to counsel.1 He appears to suggest that the
district court wrongly rejected his defense that “the imposition of the
identical discipline would result in a grave injustice.” E.D. Tex. L.R. AT-
2(b)(2) (2018).
The district court carefully considered this argument, noting that
although it was “extremely hesitant to disqualify a defendant’s counsel of
choice,” it found that “such disqualification is necessary in this case in order
to ensure the orderly administration of justice.” It found that another
attorney had already taken over as lead counsel for that client and thus the
client’s Sixth Amendment right was adequately protected. We agree with
the district court’s analysis.
III.
Lastly, we turn to Silverman’s argument that the district judge abused
her discretion by not recusing herself. See Patterson v. Mobil Oil Corp., 335
F.3d 476, 483 (5th Cir. 2003) (“The denial of a motion to recuse is reviewed
for abuse of discretion.”) (citing Matassarin v. Lynch, 174 F.3d 549, 571 (5th
1
Although Silverman was initially removed from representing two clients, he has
since been reinstated as counsel for one of those clients.
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Cir. 1999)). Silverman claims that the government’s ex parte filings
informing the court of the disciplinary actions taken against him in the
Western District of Texas and the Western District of Pennsylvania
constitute “extrajudicial information” that required the judge to recuse
herself. See 28 U.S.C. § 455(a) (requiring recusal when a judge’s impartiality
might reasonably be questioned); Liteky v. United States, 510 U.S. 540, 548
(1994) (explaining that extrajudicial information may be a factor supporting
recusal under § 455(a)).
The district judge correctly denied Silverman’s motions for recusal.
The court was first alerted of Silverman’s failure to report prior discipline by
a filing introduced by the government during judicial proceedings. Although
this filing was originally ex parte, the district judge ensured that Silverman
knew what was discussed and sought to make sure that her decision was based
on a full record, including Silverman’s response to the advisories.
“[O]pinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair judgment
impossible.” Liteky, 510 U.S. at 555. No such evidence exists here. Instead,
the record shows that the district judge worked diligently to ensure a fair
proceeding.
***
Silverman failed to tell the district court that he had previously been
disciplined by two other federal district courts. The district court properly
imposed reciprocal discipline and correctly denied Silverman’s motion to
recuse. Accordingly, we affirm.
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