In Re R. Greg Bailey

182 F.3d 860, 1999 U.S. App. LEXIS 9224, 1999 WL 308610
CourtCourt of Appeals for the Federal Circuit
DecidedMay 17, 1999
Docket98-7098
StatusPublished
Cited by76 cases

This text of 182 F.3d 860 (In Re R. Greg Bailey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re R. Greg Bailey, 182 F.3d 860, 1999 U.S. App. LEXIS 9224, 1999 WL 308610 (Fed. Cir. 1999).

Opinions

Opinion for the court filed by Circuit Judge MICHEL. Dissenting opinion filed by Circuit Judge SCHALL.

MICHEL, Circuit Judge.

R. Greg Bailey appeals from a June 11, 1998 disciplinary order of public reprimand issued against him by the United States Court of Appeals for Veterans Claims.1 The court disciplined Bailey for failing to prosecute diligently the appeal of a veteran whom he had volunteered to represent on a pro bono basis and for failing, without excuse, to respond to lawful requests for documents and information from the court itself, and from a disciplinary agency of the court during a disciplinary investigation duly ordered by the court with notice to Bailey. See In re Bailey, 11 Vet.App. 267 (Vet.App.1998). The appeal was submitted for our decision, on the briefs, on February 2, 1999. We hold we have jurisdiction to review the order, but only insofar as its constitutionality is challenged.2 Because we also hold, contrary to Bailey’s contentions, that his Due Process rights, under the Fifth Amendment to the United States Constitution, to reasonable notice and an opportunity to be heard were not violated during the proceedings leading to the order, we affirm the Court of Appeals for Veterans Claims’s disciplinary order. As to Bailey’s non-constitutional contentions, the appeal is dismissed for lack of jurisdiction.

The Court of Appeals for Veterans Claims and its Committee on Admission and Practice (the “Committee”), a disciplinary agency of the court, provided Bailey with multiple written notices of the alleged misconduct and the proposed discipline, an opportunity to respond to each notice, of which he took full advantage each time, and a telephonic evidentiary hearing, to which he made no objection, and in which he testified. Subsequently, the court reviewed the transcript of the hearing and the report of the Committee with new and full briefing by Bailey. Following an independent review of the record, the court accepted the Committee’s recommendation of a public reprimand, but rejected the recommendation of a two-year suspension from practice before the court, declining to order any period of suspension. Under these circumstances, we hold that Bailey received all the process due to an attorney in a disciplinary proceeding before a court of law respecting the right to continue to practice before such court.

BACKGROUND

On April 24, 1994, the Court of Appeals for Veterans Claims permitted attorney Bailey to appear pro hac vice before it as counsel for Joseph Odrosky, after Odrosky’s appeal, Odrosky v. Brown, No. 94-193, was assigned to Bailey through the Veterans Consortium Pro Bono Program [863]*863(the “Consortium”). On June 2, 1995, more than a year later, the court dismissed the veteran’s appeal because-.Bailey still had not filed a long-overdue brief, or otherwise prosecuted the appeal, despite both general and specific orders to him from the court to do so. Prior to the eventual dismissal, Bailey failed even to contact Odrosky, and he only indirectly communicated with him thereafter, through a telephone call made by Bailey’s father, a non-attorney.

On June 28, 1995, the court reinstated Odrosky’s appeal pursuant to a memorandum submitted by the Consortium and, in connection with Bailey’s request to withdraw as counsel, it ordered Bailey to provide specific documents and information relating to his apparent failure to prosecute the veteran’s appeal. Bailey filed a late response to the order, stating only why, in his view, he could not properly have complied with one item in the order. He either declined to respond, due to his belief that the court’s order was unlawful and unethical, or ignored each of the other four items that he had been requested to produce by the order. Thereafter, the court ordered Bailey to show cause why this matter should not be referred to its Committee, requesting limited and specific information related only to his conduct of the veteran’s appeal.3 Bailey filed a timely response in which he stated that he did not believe he should be required to provide the information and documents referenced in the court’s June 28,1995 order.

Considering the foregoing, on December 1, 1995, the court referred the disciplinary issue to its Committee for review of Bailey’s prosecution of the veteran’s appeal. In connection with its review, the Committee communicated by letter with both the Consortium and with Bailey. Following such communications and its preliminary investigation, the Committee, in a letter dated April 5, 1996, advised Bailey of its preliminary view that the available evidence supported the conclusion that he had committed misconduct as described in the American Bar Association (“A.B.A.”) Model Rules of Professional Conduct 1.3 and 8.1, made applicable to him by Rule 1(b) of the Court of Appeals for Veterans Claims’s Rules of Admission and Practice. The Committee further advised Bailey that he had thirty days after the mailing date of its letter to respond to the Committee’s preliminary conclusion. Bailey filed a timely response on May 3, 1996. After considering Bailey’s response, the Committee concluded that a hearing was unnecessary, because the material facts were undisputed and Bailey had been given repeated opportunities, both by the court and the Committee, to present all relevant facts and any explanation or excuse concerning his handling of the veteran’s appeal and had in fact done so.

On July 18, 1996, the Committee filed a report with the court detailing its findings and recommending that Bailey’s privilege of practicing before the court be suspended for a period of two years and that the court’s disciplinary action be reported to the other bars of which Bailey was a member. In a submission to the court, Bailey objected to this report, asserting a violation of his Due Process rights by the Committee, due to its failure to conduct a live evidentiary hearing. The court thereupon referred the matter back to the Committee and ordered it to conduct such a hearing. In addition, the court directed the Committee to provide Bailey with advance notice of any evidence on which it intended to rely, and to afford Bailey the opportunity to respond, both in writing and at a hearing, to any and all of this evidence, as well as to provide any new and pertinent evidence of his own. On February 27, 1998, after conducting a telephonic hearing with Bailey, to which Bailey did not object, and considering additional information and evi-[864]*864denee provided by Bailey, the Committee filed a supplemental and final report with the court confirming its earlier recommendation.

On March 30, 1998, the court ordered Bailey to show cause why it should not impose the recommended discipline. Bailey timely replied on April 30, 1998. Thereafter, on June 11, 1998, the court ordered that Bailey be .publicly reprimanded by published order for his lack of diligence in prosecuting the veteran’s appeal and for his inexcusable failure to respond to lawful requests for documents and information from both the court and the Committee. Despite the Committee’s recommendation, however, no suspension was ordered by the court.

Bailey appeals, contending that the disciplinary proceedings, as conducted, violated his Due Process rights and that his prosecution of the veteran’s appeal fell short of adequate grounds for imposing any discipline, even a reprimand without suspension. Because Bailey filed this appeal within thirty days of the disciplinary order, the appeal to this court is timely.

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Cite This Page — Counsel Stack

Bluebook (online)
182 F.3d 860, 1999 U.S. App. LEXIS 9224, 1999 WL 308610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-r-greg-bailey-cafc-1999.