Wednesday, March 12, 2014

Federal Practice Lapses Can Be Sanctioned By State

The North Dakota Supreme Court has rejected the claim that it lacks jurisdiction to sanction misconduct committed in a federal immigration matter in North Dakota:

This Court exercised jurisdiction over disciplinary matters arising from federal immigration proceedings involving North Dakota lawyers in the past. Disciplinary Board v. Karlsen, 2008 ND 235, 778 N.W.2d 522; Disciplinary Board v. Vela, 2005 ND 119, 699 N.W.2d 839; Disciplinary Board v. Vela, 2008 ND 42, 746 N.W.2d 1. Howe is a licensed North Dakota attorney. Under clear language in Rule 8.5(a), N.D.R. Prof. Conduct, and our judicial decisions, he is subject to discipline in this jurisdiction despite that the matter arose from a federal immigration proceeding and that disciplinary action was not taken by the federal immigration court. This Court has jurisdiction over this disciplinary case.

The attorney had a long history of prior discipline.

Here, he was suspended for six months and a day. He is required to demonstrate he is fit to practice before reinstatement. (Mike Frisch)

Bar Discipline & Process | Permalink

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In the absence of federal practice rules that permit the conduct before the immigration court this is a correct decision. But where the feds have a specific rule that permits the conduct in question, that rule preempts any conflicting state rule meaning the conflicting state rule cannot be enforced. Supremacy Clause, Bankruptcy Clause, Privileges and Immunities. Example: Bankruptcy Rule 9003(a) and (b) and Federal Judicial Canon 3(A)(4) permit certain ex parte contacts that Model Rule 3.5(b) prohibiting most ex parte contacts would prohibit. Imagine a bunch of bankruptcy lawyers (UST attorneys included) getting hauled before the TN Board for violating RPC 3.5(b) by engaging in an ex parte communication with a bankruptcy judge at a time when such is permitted under Bankruptcy Rule 9003(a). That very case is presently pending before the Tennessee Supreme Court.

Posted by: Caldwell Hancock | Mar 14, 2014 9:13:29 AM

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