Wednesday, November 30, 2022

Due Process Violation Precludes Reciprocal Discipline

The Supreme Court of the Virgin Islands concluded that an attorney who had been suspended for two years by the federal district court had been denied due process. 

Accordingly, the court declined to impose reciprocal discipline.

The complaint had originated with the mother of a client and had been assigned to a Magistrate from the Western District of Pennsylvania

The magistrate judge issued a report and recommendation on December 3, 2021. Before doing so, the magistrate judge did not hold an evidentiary hearing and did not interview Attorney Moorhead, his client, or the client’s mother who wrote the letter which initiated the investigation. In the report, the magistrate judge stated that she had “directed the Clerk of the District Court of the Virgin Islands to provide a list of matters in which the District Court of the Virgin Islands has imposed discipline upon Attorney Moorhead within the past five years” and that “[i]n addition, [she] independently conducted a search and located several additional matters, in District Court and other courts, in which discipline was imposed.” The magistrate judge provided a list of eight such matters, in which Attorney Moorhead had been fined by various courts or been removed from court-appointed representation and provided a factual summary of each. The report also disclosed that the magistrate judge had interviewed, on an ex parte basis, six individuals in conjunction with the investigation, but did not name them and only summarized their collective testimony, indicating that “Attorney Moorhead has long had problems with meeting court deadlines, making timely court appearances, successfully e-filing documents, communicating adequately with clients, and the like,” that he “may be suffering from an impairment of some kind, possibly due to substance abuse,” and that his “law practice has become increasingly disorganized and haphazard, questioning whether he still maintains a law office at all.” The magistrate judge concluded the report by recommending that Attorney Moorhead be suspended from the District Court Bar for two years and “that significant conditions should be imposed upon his readmission,” including “[a] comprehensive physical and mental health examination” and appointment of “[a] professional mentor” who would “supervise [his] practice of law.”

The process amounted to a denial of due process

Here, the record reflects that the magistrate judge did not provide Attorney Moorhead with an opportunity to be heard, as is expressly required by Local Rule 83.2(b). While the District Court excused this failure by noting that Attorney Moorhead possessed a right to submit a written objection to the magistrate judge’s report and recommendation, the plain text of Local Rule 83.2(b) provides Attorney Moorhead with a right to be heard before the magistrate judge and a right, at his option, to file a written objection to the magistrate judge’s report and recommendation. As such, the procedure employed by the District Court in this case did not provide Attorney Moorhead with the required opportunity to be heard, and thus reciprocal discipline is not warranted pursuant to Supreme Court Rule 207.18(d)(1).

The matter was referred to Disciplinary Counsel for an original investigation

The Office of Disciplinary Counsel must promptly conduct its own independent investigation of the ethical misconduct alleged in the January 25, 2022 order and the similar complaint filed with it and, if appropriate, prosecute Attorney Moorhead in a proceeding before the Board

(Mike Frisch)

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