In re Discipline of Ashton

768 F.2d 74
CourtCourt of Appeals for the Third Circuit
DecidedJuly 16, 1985
DocketNo. 84-3680
StatusPublished
Cited by3 cases

This text of 768 F.2d 74 (In re Discipline of Ashton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Discipline of Ashton, 768 F.2d 74 (3d Cir. 1985).

Opinion

OPINION OF THE COURT

GIBBONS, Circuit Judge:

James A. Ashton, a member of the Bar of the Commonwealth of Pennsylvania, appeals from an order of the United States District Court for the Western District of Pennsylvania, dated September 19, 1984, denying his petition for readmission to the Bar of that court. That order was entered following a remand from this court in Ash-ton’s appeal from a prior order of the district court, dated May 2, 1983, denying his application for readmission.

On December 30, 1974, Ashton was convicted in the district court of two counts of mail fraud in violation of 18 U.S.C. § 1341 (1982). That conviction resulted in Ash-ton’s suspension from the Pennsylvania Bar by the Supreme Court of the Commonwealth. The district court subsequently discovered that Ashton had never been properly admitted to the Bar of the district court and could not technically be disbarred. Ashton served time in a federal penitentiary and paid a fine. Thereafter he enrolled in Alcoholics Anonymous and, after a lengthy period of rehabilitation, applied for readmission to the Pennsylvania Bar. The Disciplinary Board of the Supreme Court held a two-day hearing at which evidence of Ashton’s present good character and of the effects of alcoholism was presented. The Disciplinary Board recommended to the Supreme Court that Ashton be readmitted because of his good conduct while suspended and his recovery from alcohol abuse. On October 16, 1982 the Supreme Court voted 5 to 2 to reinstate him to the Pennsylvania Bar.

After his readmission to the Pennsylvania Bar, on January 17, 1983, Ashton applied for admission to the district court. Under Local Rule 1 of the Western District of Pennsylvania, applicants who have been admitted to practice before the Supreme Court of Pennsylvania are eligible for admission to the Bar of the district court. The rule provides, however, that the applicant “shall, if required, offer satisfactory evidence of his moral and professional character....” Local Rule 1(d). The Board of Judges of the District Court, on January 18, 1983, decided to appoint an ad hoc panel to consider Ashton’s application for admission and make a recommendation to the full court. That ad hoc panel examined the report submitted by the Pennsylvania Disciplinary Board to the Supreme Court of Pennsylvania and the 433 page [76]*76transcript of proceedings before that Board.

On February 24, 1983 the ad hoc panel filed a report to the full court concluding that the Pennsylvania reinstatement hearing “did not establish that Ashton is of good moral and professional character,” and recommending that his application for admission be denied. The report notes that Ashton had never been admitted to the district court before, although he had practiced before it.1 The fact that he had practiced before the district court at some time before his mail fraud conviction was not relied upon by the ad hoc panel as bearing upon his present good character. Referring, instead, to the state proceedings, the ad hoc panel acknowledged that sixteen witnesses “all testified to Ashton’s transformation since his recovery from alcoholism.” A. 644. The panel criticized the Board’s report, however, because “[t]here was no development of other matters concerning the reputation of Ashton among the members of the bench and bar, including his poor representation of clients,”2 and because there was no “reference at the reinstatement hearing to the reputation of Ashton for asserting to certain people that he could influence the actions of certain judges both in state and federal courts by the payment of money.” Id. The report criticized counsel for the Disciplinary Office for failing to “bring any other complaints about Ashton’s conduct to the attention of the hearing panel.” Id. The report noted that “complaints were received by the Bar Association [not otherwise identified] that insufficient notice of the reinstatement hearing had been given.” A. 645. It noted, further, that the panel was “aware of a strong adverse reaction to the readmission of Ashton among members of the legal profession in the Pittsburgh area.” Id. The reasons for that reaction and the identity of the members of the legal profession who registered it are undisclosed. Finally, the panel report stated:

Last, we note that Ashton recently took an active role in publicizing a newsworthy case when it was filed with this court. The implication of the publicity was that he was one of the attorneys for the plaintiffs in that case.

Id.

Neither before the state Disciplinary Board, nor in the district court prior to the filing of the ad hoc panel’s report, was Ashton given any notice that he would have to do more for admission than present satisfactory evidence of present good character. He was not on notice that the district court would take into consideration adverse reactions to his readmission to the Pennsylvania Bar by unnamed members of the legal profession, or that it would take into account press accounts about a “newsworthy case” in which he was named in some capacity. Nor was he on notice that the district court might take into account a criticism of the manner in which he had represented a client prior to his mail fraud conviction.

Although the ad hoc panel recommended denial of the application on the basis outlined above, on March 17, 1983 the Chief Judge of the district court entered an order directing the panel to conduct a hearing. The hearing was held on April 6, 1983. Since the panel members had previously read the transcript of proceedings before the Disciplinary Board of the Supreme Court, and the Board’s report to the Supreme Court, Ashton was directed not to duplicate any materials presented to the Disciplinary Board. He was permitted, however, to offer the testimony of additional witnesses. No counsel was appointed to oppose Ashton’s application, and no charges of any kind were made against him prior to the hearing. Thus Ashton was on notice at the hearing of no more than his [77]*77obligation, under Local Rule 1(d), to “offer satisfactory evidence of his moral and professional character____” He was informed at the outset of the hearing that the ad hoc panel would act as a special prosecutor performing an investigative function. Ash-ton testified on his own behalf and presented the testimony of thirteen witnesses in addition to those who had testified before the Disciplinary Board. Members of the ad hoc panel cross-examined Ashton and the witnesses presented on his behalf, and called no other witnesses.

During the course of cross-examination of witness Allan R. Patterson, a member of the panel asked if Patterson knew anything in connection with Ashton’s use in the 1950’s of the stationery and office of Common Pleas Court Judge Weiss to run his own collection agency. The witness had no knowledge of the subject. A. 43.

During the course of cross-examination of witness Lester Nauhaus, a member of the panel asked Nauhaus whether he knew anything about Ashton holding out that he had certain judges that were susceptible of being paid. Nauhaus responded:

A. I have heard that about half the members of the criminal bar; I don’t believe any of them.
Q. About half the members of the criminal bar. But did you hear specific judges named?
A. About Mr. Ashton, no.

A.

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768 F.2d 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-discipline-of-ashton-ca3-1985.