In re: Smith

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 8, 2002
• Docket: 02-00005
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 02-00005 _____________________

IN RE: DAVID L. SMITH

Petitioner

March 4, 2002 Before KING, Chief Judge, and REAVLEY and WIENER, Circuit Judges.

PER CURIAM:*

This is a reciprocal discipline proceeding against attorney

David L. Smith. It arises from actions taken by the United States

Court of Appeals for the Tenth Circuit and by the United States

District Court for the Northern District of Texas.

In 1993, the Tenth Circuit suspended Smith for filing

frivolous appeals and failing to pay court-ordered sanctions. In

re Smith, 10 F.3d 723 (10th Cir. 1993) (per curiam). The Tenth

Circuit subsequently disbarred Smith in 1996 for writing and

filing briefs on behalf of otherwise pro se litigants in

violation of his suspension order. In re Smith, 76 F.3d 335

(10th Cir. 1996).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Smith’s membership in the bar of the Northern District of

Texas was revoked on November 21, 2000. In re Smith, 123 F.Supp.

2d 351 (N.D. Tex. 2000), aff’d, 275 F.3d 42 (5th Cir. 2001)

(table decision).1 The Northern District imposed this sanction

based on Smith’s disbarment by the Tenth Circuit.2 Smith resides

in Texas, and is a member in good standing of the State Bar of

Texas.

As a result of the Northern District’s revocation order and

the Tenth Circuit’s disbarment order, this court issued an order

requiring Smith to show cause why he should not be removed from

the roll of attorneys admitted to practice as a member of this

court’s bar. Smith responded and requested a hearing.3 His

written response essentially consisted of copies of the brief and

1 The Northern District’s disciplinary determination was delegated to a three-judge panel. See In re Smith, 100 F.Supp. 2d 412 (N.D. Tex. 2000) (en banc) (per curiam). In an unpublished opinion, a panel of this court found no constitutional violation and no abuse of discretion in the district court’s decision to disbar Smith. In re Smith, No. 01- 10011 (5th Cir. Sept. 26, 2001) (relying on Selling v. Radford, 243 U.S. 46, 51 (1917) and In re Dawson, 609 F.2d 1139, 1142 (5th Cir. 1980)). 2 The Supreme Court of Colorado has imposed reciprocal discipline and disbarred Smith based on the Tenth Circuit’s actions. In re Smith, 989 P.2d 165 (Colo. 1999). In addition, the Supreme Court of the United States has disbarred Smith for failing to comply with an order of the Court. In re Disbarment of Smith, 516 U.S. 984 (1995) (mem.); see also Qualls v. Regional Transp. Dist., 516 U.S. 804 (1995) (mem.) (suspending Smith and issuing an order requiring him to show cause why he should not be disbarred). 3 Smith requested an en banc hearing. This court denied that request by letter dated February 1, 2002.

2 the Petition for Rehearing En Banc that he filed in his appeal of

the Northern District’s disciplinary order.

Attorney discipline by a circuit court is governed by

Federal Rule of Appellate Procedure 46, which states that a

member of the federal appellate court’s bar is subject to

suspension or disbarment by the court if the member has been

suspended or disbarred from practice by any other court. The

member must be given an opportunity to show cause why he should

not be disciplined, and must be given a hearing, if requested.

Fed. R. App. P. 46(b)(2)-(3).

A hearing in the form of oral argument was held before a

three-judge panel on March 4, 2002. Smith appeared pro se. The

sole issue before this court is whether the Tenth Circuit’s

disbarment of Smith or the Northern District’s revocation of

Smith’s membership supports the imposition of reciprocal

discipline.

Discipline by federal courts does not automatically flow

from discipline by other courts. See Theard v. United States,

354 U.S. 278, 282 (1957). However, prior disciplinary

proceedings are of substantial relevance in determining whether

an attorney should no longer be allowed to practice before this

court. In re Evans, 834 F.2d 90, 91 (4th Cir. 1987). Smith has

the burden of showing why this court should not impose reciprocal

discipline. In re Calvo, 88 F.3d 962, 966 (11th Cir. 1996).

3 When considering reciprocal discipline based on a state

court discipline order, the Supreme Court has held that a federal

court should recognize and give effect to the the judgment of the

state court unless an “intrinsic consideration of the state

record” reveals that: (1) the state proceeding was wanting in due

process; (2) the evidence relied on by the state court to

establish misconduct was so infirm as to give rise to a clear

conviction that the federal court cannot, consistent with its

duty, accept the state court’s conclusion as final; or (3) there

is some other grave reason why giving effect to the state court

judgment would be inconsistent with the federal court’s duty not

to disbar except when constrained to do so by principles of right

and justice. Selling v. Radford, 243 U.S. 46, 51 (1917).4

The Selling analysis has been expressly adopted by the Fifth

Circuit when reviewing reciprocal discipline by a federal

district court based on a state court order. See In re Wilkes,

494 F.2d 472, 476-77 (5th Cir. 1974); In re Dawson, 609 F.2d

1139, 1142 (5th Cir. 1980). Selling has also been applied to

federal appellate court reciprocal discipline proceedings based

on a district court’s discipline order. In re Evans, 834 F.2d

90, 91 (4th Cir. 1987); In re Edelstein, 214 F.3d 127, 132 (2d

4 This court obtained from the Northern District of Texas the complete record of that court’s disciplinary proceeding. As indicated by Smith in his response to the show cause order, the Northern District’s record includes the complete record of the Tenth Circuit’s discipline proceeding.

4 Cir. 2000). We conclude that the standards set out in Selling

apply to this court’s determination whether to impose reciprocal

discipline based on discipline orders issued by other federal

courts.5

Smith claims that he was denied due process by the Tenth

Circuit because he did not receive a hearing, in violation of

Rule 46 of the Federal Rules of Appellate Procedure. In July

1995, the Tenth Circuit ordered Smith to indicate whether he had

written the briefs submitted by the pro se appellants in two

cases, and to indicate who had written the pro se briefs filed in

two other cases. All of these briefs were filed after the Tenth

Circuit suspended Smith for filing frivolous appeals. The July,

1995 order references Johnson v. Board of County Commissioners,

868 F.Supp. 1226 (D. Colo. 1994), which strongly criticizes the

practice of “ghost-writing,” wherein attorneys draft briefs for

pro se litigants but do not sign those briefs.

In his response, Smith took issue with the court’s reference

to Johnson and denied that he had “ghost-written” any briefs.

Smith claimed that he has “never participated in the writing of a

brief for a pro se litigant without disclosing his participation,

and has never refused to sign a brief written by him when

requested to do so by any court.”

5 The Northern District of Texas similarly determined that the Selling factors applied to its consideration of reciprocal discipline based on the Tenth Circuit’s order. See In re Smith, 100 F.Supp. 2d 412 (N.D. Tex. 2000) (en banc) (per curiam); In re Smith, 123 F.Supp. 2d 351 (N.D. Tex. 2000).

5 Dissatisfied with Smith’s response, the Tenth Circuit in

September 1995 again ordered Smith to indicate the extent of the

assistance he had provided the pro se appellants in cases after

the date of his suspension. Smith responded, under oath, that he

had written the briefs in the appeals referenced in the September

1995 order.6 However, Smith argued that he had not engaged in

“ghost-writing” because he had either signed his name to the

briefs, or included footnotes in which he acknowledged his

involvement.

The court then ordered Smith to show cause why he should not

be disbarred for writing briefs on behalf of third parties while

under suspension and for violating the suspension order. Smith

filed a written response and requested an evidentiary hearing.

After consideration of his response to the show cause order, as

well as his responses to the earlier orders, the Tenth Circuit

denied his request for an evidentiary hearing and entered an

order disbarring him.

Selling dictates that a court considering reciprocal

6 In his sworn response to the show cause order, Smith stated:

Pursuant to the disciplinary panel’s (September 21, 1995) order, Mr. Smith hereby supplements his (August 7, 1995) Response to the Order to Show Cause Issued by the Disciplinary Panel of the United States Court of Appeals for the Tenth Circuit on July 18, 1995, and Complaint of Judicial Misconduct Pursuant to 28 U.S.C. § 372(c) by again stating, under oath, that he wrote the briefs in the appeals referenced in the (September 21, 1995) order.

6 discipline should “recognize the condition created by the

judgment” of the other court unless the other court’s “procedure,

from want of notice or opportunity to be heard, was wanting in

due process.” 243 U.S. at 51. Hence the question for this court

is whether the Tenth Circuit proceeding was wanting in due

process due to lack of notice or opportunity to be heard.

Smith was provided with specific notice of both the charges

against him and the fact that the court was considering

disbarment as possible discipline. He was also provided with an

opportunity to be heard in response to the show cause order for

disbarment. Given that Smith had already admitted to writing

the briefs in question prior to the Tenth Circuit’s issuance of

its show cause order, there was no factual dispute regarding

whether he had written and filed briefs on behalf of third

parties while under suspension. Under these circumstances, this

court finds no due process problems with the Tenth Circuit’s

proceeding that would constrain us from imposing reciprocal

discipline under Selling.7

Smith also argues that there was an infirmity of proof in

the Tenth Circuit disbarment proceeding, reasoning that, in the

7 This court has previously held that the absence of a disciplinary hearing does not violate an attorney’s due process rights when, after gathering evidence on the alleged misconduct, the district court issued a show cause order regarding proposed discipline and afforded counsel an opportunity to submit briefs in his or her defense before ruling. NASCO, Inc. v. Calcasieu Television and Radio, Inc., 894 F.2d 696, 706-07 (5th Cir. 1990), aff’d on other grounds sub nom. Chambers v. NASCO, Inc., 501 U.S. 32 (1991).

7 absence of a hearing, there was no proof of misconduct at all.

On the contrary, the Tenth Circuit had in its possession briefs

filed during the term of Smith’s suspension that Smith had

either: (1) signed or (2) indicated his involvement with in a

footnote. In addition, the Tenth Circuit had Smith’s written

acknowledgment under oath that he had written these briefs.

Under these circumstances, we cannot say that there was such an

infirmity of proof as to give rise to a clear conviction that we

should reject the Tenth Circuit’s determination of misconduct.

Turning to the Northern District proceeding, Smith asserts

that he was denied due process because there was no independent

prosecutor and because he was denied an evidentiary hearing.8

This court has previously held that the due process rights of an

attorney in a disciplinary proceeding do not extend so far as to

guarantee the full panoply of rights afforded to the accused in a

criminal case. Sealed Appellant 1 v. Sealed Appellee 1, 211 F.3d

252, 254 (5th Cir. 2000). The absence of an independent

prosecutor does not violate an attorney’s rights to due process

in a disciplinary proceeding. Crowe v. Smith, 151 F.3d 217, 231-

33 (5th Cir. 1998); NASCO, 894 F.2d at 707. Moreover, an

8 Smith also argues that the Northern District’s local rule regarding reciprocal discipline is unconstitutional because it provides for automatic disbarment without affording prior notice to the attorney. However, as the panel hearing his appeal found, we need not reach this issue because it is clear from the record that Smith was provided with fair notice and ample opportunity to respond to the proposed discipline at issue in the instant case.

8 evidentiary hearing is not required where the Selling criteria

are satisfied. In re Jacobs, 44 F.3d 84, 90 (2d Cir. 1990); In

re Jafree, 759 F.2d 604, 605 n.1 (7th Cir. 1985) (per curiam).

Additionally, in his written response, Smith claims that the

district court committed error and/or abused its discretion by

failing to find that there was “grave reason” justifying refusal

to impose reciprocal discipline (or, at a minimum, that there was

“grave reason” justifying imposition of substantially different

discipline) under the third prong of the Selling test. Smith

contends that there were a number of “grave reasons” justifying

departure from the findings of the Tenth Circuit, including:

(1)the five-year lapse of time between the Tenth Circuit’s

issuance of its disbarment order and the discipline proceedings

before the Northern District; (2) his belief that his conduct in

the Tenth Circuit did not constitute unethical behavior under the

local rules for the Northern District; and (3) his belief that

reciprocal disbarment by the Northern District constituted cruel

and unusual punishment.

The panel of this court that heard Smith’s appeal of the

Northern District’s disbarment decision has already rejected this

argument. Smith is now asserting that these factors supply grave

reason for this court not to impose reciprocal discipline. We

conclude that, under the standard established by Selling, none of

Smith’s asserted factors constitute a “grave reason” why giving

effect to the Northern District’s judgment would be inconsistent

9 with our duty to disbar only when constrained to do so by

principles of right and justice.

Finally, Smith argues that Judges Fitzwater and Means

(members of the three-judge panel that conducted the disciplinary

proceeding in the Northern District) must have been biased

against him because they had stayed cases in which Smith was

counsel of record pending resolution of his disciplinary

proceeding. We note that a judge’s rulings alone can almost

never support a complaint of personal bias. Liteky v. United

States, 510 U.S. 540, 555 (1994). Moreover, we find no support

for Smith’s allegation of bias in the instant case.

Smith makes a similar charge of bias against Chief Judge

Buchmeyer based on language in Chief Judge Buchmeyer’s denial of

Smith’s Petition for Relief from the disciplinary panel’s ruling.

In denying Smith’s petition, Chief Judge Buchmeyer noted that the

legal arguments contained in the petition were “totally without

merit.” Smith asserts that this statement evidences bias on the

part of Chief Judge Buchmeyer. However, the fact that Chief

Judge Buchmeyer found Smith’s legal arguments to be without merit

lends no support to Smith’s unsubstantiated claim of bias.

After conducting a review of the records of the proceedings

conducted by the Tenth Circuit and the Northern District, and

after thoroughly considering the response filed by Smith in this

matter and his testimony at the hearing, we find no infirmities

10 of the type identified in Selling that would militate against the

imposition of reciprocal discipline.

IT IS ORDERED that David L. Smith is removed from the roll

of attorneys admitted to practice as a member of the bar of this

court.