Monday, June 29, 2009

No Reciprocal Discipline

Adhering to the reasoning of a recent opinion that we posted, the Georgia Supreme Court dismissed a reciprocal discipline matter involving the suspension of an attorney in the United States District Court for the Southern District of Georgia. The court majority holds that "the State Bar is not authorized to utilize the reciprocal discipline process when the disciplinary action at issue was taken by a federal district court."  The court dismissed a second matter on the same grounds. (Mike Frisch)

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Now that the Georgia Supreme Court explains its position a little better, I think that there is much to commend that position. Specifically, the Court now adds in this opinion that:

/// Because reciprocal discipline is an important tool in the increasingly common national practice of law, our rules reflect a deference to the actions of other jurisdictions with respect to the attorneys over whom we share disciplinary authority. Reading our reciprocal discipline rules as a whole, however, it is clear that the deference given to disciplinary proceedings of “another jurisdiction” is predicated on the existence of comprehensive disciplinary procedures adopted by a licensing jurisdiction, that is, a jurisdiction with authority similar to that granted to this Court to assess a lawyer’s professional fitness to hold a license to practice law and to resolve matters pertaining to a lawyer’s professional ethics and responsibility. \\\

Consequently, the Court concludes:

/// Accordingly, we hold that our rules governing reciprocal discipline apply only to disciplinary actions taken by other licensing jurisdictions, as opposed to entities, such as individual courts and intermediate state appellate courts, that require already licensed lawyers to obtain a special certificate to practice before them. \\\

This explanation makes a lot of sense. In fact, it highlights something that I have been saying which is that the states’ have been relying on the U.S. Supreme Court’s 92 year old pronouncement of its own standard for reciprocal discipline to avoid the question of what due process is really appropriate in a reciprocal discipline case. The following is taken from my own petition for certiorari in Williams v. Appellate Division of the Supreme Court of the State of New York, First Judicial Dept., 128 S.Ct. 2091, 170 L.Ed.2d 817 (2008) (cert. denied):

/// While Petitioner’s parallel Petition, Williams v. District of Columbia Court of Appeals, 128 S.Ct. 1075 (Mem.) (2008), took issue with the denial of due process under an automatic interim suspension rule, and this Petition attacks the First Department’s policy of imposing final reciprocal discipline without affording an attorney a hearing, it is readily apparent that there is a much broader issue at play here which is whether Selling [v. Radford, 243 U.S. 46, 51-52 (1917)], decided in 1917, should in fact be the de facto due process standard applicable to the states.

Indeed, Selling was decided at a time when this Court believed that it had “no authority to re-examine or reverse as a reviewing court the action of the [disciplining state] in disbarring a member of the Bar of the courts”. Selling, at 50. The Selling court was therefore only determining how this Court would handle reciprocal discipline from the states. Later, the Court broadened the Selling holding to encompass the handling of state discipline by subordinate federal courts. Thread v. United States, 354 U.S. 278, 281-282 (1957). Selling and Thread were necessitated because of the special relationship between the state bars and the federal bars in that “a lawyer is admitted into a federal court by way of a state court [but] is not automatically sent out of the federal court by the same route.” Id. at 281. But that same special relationship does not exist between the states bars. Therefore, it should not surprise that this Court has never applied the Selling standard directly to the states. In fact, it was only as recently as 1967 that this Court determined that the Fourteenth Amendment afforded a lawyer in a state disciplinary proceeding any federal due process protections whatsoever. Spevack v. Klein, 385 U.S. 511, 514 (1967).

However, this has not stopped numerous jurisdictions, including New York and the District of Columbia, and even the ABA’s Standing Committee on Professional Discipline, from assuming that this Court’s fixed Selling standard applies equally to both the state and federal bars. This is apparent from the almost identical wording contained in ABA Rule 22, D.C. Bar Rule XI, § 11(c), New York’s 22 NYCRR § 603.3(c) and the reciprocal discipline rules of many other states.

It is this lack of clarity as to the breadth of this Court’s reciprocal discipline standard which has created the current unsatisfactory situation whereby the states have not achieved the stated policy goal of preventing “a lawyer disbarred in one jurisdiction [from] practice[ing] elsewhere” yet at the same time, attorneys are being systematically denied procedural due process.

Therefore, the real question that this Court must address is whether the rigid standards for reciprocal discipline annunciated by this Court in Selling must be complied with by the states or whether the states should be free to adopt some other due process standard after consideration of the Eldridge factors. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). \\\


Posted by: FixedWing | Jun 29, 2009 8:25:07 AM

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