June 15, 2009
No State Reciprocal Discipline For Federal Contempt
The Georgia Supreme Court dismissed a reciprocal discipline action based on a finding in federal district court that the attorney had engaged in unauthorized practice. The district court found the lawyer in contempt and imposed a fine and fee forfeiture. The Georgia court found that:
Reading our reciprocal discipline rules as a whole...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 perofessional fitness to hold a license to practice law and resolve matters pertaining to a lawyer's professional ethics and responsibility.
Because the federal district court "has no authority to confer or revoke [the attorney's] license to practice law," it is not "another jurisdiction" for reciprocal discipline purposes. The misconduct found by the federal district court may be found in an original proceeding but not under the abbreviated reciprocal procedures.
A dissent (joined by two other justices) would reject the bright-line rule of the majority and impose reciprocal discipline where the federal court provides due process guarentees before imposing discipline. The dissent also finds the disposition inconsistent with prior Georgia case law.
This case should get a lot of attention from disciplinary counsel. If this reasoning catches on, it will have a significant impact on federal-state bar comity. (Mike Frisch)
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What a ridiculous decision.
Taken to its natural conclusion, the majority would ignore the order of any court which did not have general territorial based subject matter jurisdiction. This would include not just federal trial courts but also federal appeals courts, state appeals courts proceeding against a lawyer solely based upon its appearance before it (rather than acting on the basis of some sort of general subject jurisdiction over attorneys in that state) or any sort of specialised court or tribunal.
In my opinion, the Georgia court would have had a much better argument had it argued that discipline through the summary contempt process should not be honoured because it does not afford the accused minimum constitutional protections. This argument is much more in line with the Review Panel’s recommendation.
As crazy as this ruling appears, this is actually the practice in every jurisdiction in this country when it comes to conduct before courts outside of the United States. Every jurisdiction that I am aware of will exempt an attorney from reporting overseas discipline and will not take reciprocal action based upon that discipline. Nor will any jurisdiction that I am aware of make any attempt whatsoever to report discipline to an overseas jurisdiction. So perhaps Georgia’s territorially based idea of discipline is not so out of line with the attitude of the rest of the USA states?
Posted by: FixedWing | Jun 15, 2009 10:38:32 AM
The Supreme Court of Georgia has denied the State Bar of Georgia's request for reconsideration of the Stubbs decision.
Posted by: Jenny Mittelman | Jul 1, 2009 7:38:20 AM