In Re: Benjamin Eichholz

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 10, 2007
• Docket: 06-14476
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________ FILED No. 06-14476 U.S. COURT OF APPEALS ELEVENTH CIRCUIT Non-Argument Calendar JAN 10, 2007 ________________________ THOMAS K. KAHN CLERK D. C. Docket No. 06-00029-MC-4

IN RE:

BENJAMIN EICHHOLZ,

Appellant.

________________________

Appeal from the United States District Court for the Southern District of Georgia _________________________

(January 10, 2007)

Before ANDERSON, BIRCH and WILSON, Circuit Judges.

PER CURIAM:

Benjamin Eichholz appeals his two year suspension from the practice of law

before the United States District Court for the Southern District of Georgia.

Following a hearing on an order to show cause, the bankruptcy court found that

Eichholz had violated the Georgia Rules of Professional Conduct by breaching duties owed to his clients under Rules 1.1, 1.2, 1.3, and 1.4 and to his profession

under Rules 5.3 and 5.5. The bankruptcy court found that Eichholz knowingly

violated Rules 5.3 and 5.5 and violated the other rules with gross negligence. The

bankruptcy court further found that these infractions were aggravated by his

pattern of misconduct, substantial experience practicing law, lack of acceptance of

responsibility, and the vulnerability of his clients. The bankruptcy court issued a

report and recommendation to the district court, which recommended a two year

suspension of his privilege to practice in the District Court for the Southern District

of Georgia followed by a one year probation. The district court reviewed the

report and recommendation along with the entire record. The district court adopted

the bankruptcy court’s findings and imposed the recommended sanctions. On

appeal, Eichholz argues that the district court abused its discretion in finding that

clear and convincing evidence supported the conclusion that he violated Georgia

Rules of Professional Conduct. Further, he asserts that his due process rights were

violated and the sanctions were too harsh.

We review disciplinary orders entered by the district court for a clear abuse

of discretion. See In The Matter of Calvo, 88 F.3d 962, 967 (11th Cir. 1996). “An

abuse of discretion arises when the district court's decision rests upon a clearly

erroneous finding of fact, an errant conclusion of law, or an improper application

2 of law to fact.” United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005).

Federal courts have the inherent authority to sanction lawyers for misconduct. In

re Finkelstein, 901 F.2d 1560, 1564 (11th Cir. 1990). The Georgia Rules of

Professional Conduct and the ABA Model Rules of Professional Conduct govern

attorneys practicing before the United States District Court for the Southern

District of Georgia. S.D. Ga. R. 83.5(d).

We find that there was clear evidence that Eichholz was repeatedly derelict

in his duties to his clients and to the court. At the hearing before the bankruptcy

court, Eichholz’s clients testified that they lacked significant contact and

meaningful communication with him. One client testified that Eichholz had settled

a case without proper settlement authority. Eichholz’s former employee testified

that she heard from upset clients who did not know that their case was settled or

had issues with their settlement. Evidence supports a finding that Eichholz settled

cases without settlement authority. In addition, Eichholz repeatedly failed to

appear before the bankruptcy court on motion hearings or to ensure the presence of

adequate substitute counsel. Furthermore, his former employees testified that non-

lawyer employees routinely signed Eichholz’s name to documents filed in the

bankruptcy court, and that he did not prepare or review these documents before

they were filed. Additional evidence showed that Eichholz failed to supervise his

3 employees, allowing these non-lawyer employees to engage in activities that

required legal knowledge such as explaining legal documents to clients. Given the

evidence, the district court did not abuse its discretion in finding that such conduct

clearly violated the Georgia Rules requiring competent representation (Rule 1.1),

representation of client’s interests (Rule 1.2), diligence (Rule 1.3) and reasonable

communication with clients (Rule 1.4), as well as those requiring supervision of

non-lawyer employees (Rule 5.3) and prohibiting assisting others in the

unauthorized practice of law (Rule 5.5.).

We also find that Eichholz’s due process rights were not violated. Eichholz

was given both notice and an opportunity to be heard by the bankruptcy court.

Eichholz was present at the bankruptcy court’s hearing, able to present evidence,

and confront witnesses against him. The hearing, which followed an order to show

cause, met the standards of procedural due process and the district court could rely

on it. See Greer's Refuse Service, Inc. v. Browning-Ferris Industries of Delaware,

843 F.2d 443 (11th Cir. 1988) (allowing the district court to rely on state court

disciplinary proceedings in imposing sanctions). Finally, while the punishment

was harsh, we cannot say that the district court abused its discretion. The

American Bar Association Standards for Imposing Lawyer Sanctions provide that

suspension is appropriate for a number of Eichholz’s actions, including his pattern

4 of neglect under Standard 4.42, his lack of competence under Standard 4.52, and

his violation of duties owed to the profession under Standard 7.2. While the

sanctions in the Georgia Rules are not binding on the federal courts, it is notable

that for all but one of the rules Eichholz violated the maximum sanction is

disbarment. Although Eichholz had never been formally disciplined by the District

Court of Southern District of Georgia, his prior misconduct was noted in previous

written opinions, and his current practice showed a repeat pattern of disregard for

professional standards. Thus, the district court was well within its discretion to

impose a suspension.

Because we can discern no reversible error, we affirm the district court’s

decision and the sanctions imposed.

AFFIRMED.