Thursday, April 27, 2023

A New Provision In Reciprocal Disbarments

A relatively new development in District of Columbia reciprocal disbarment cases is a Court of Appeals provision requiring that the sanctioned attorney be reinstated in the original disciplining jurisdiction in order to be eligible for D.C. reinstatement.

An order entered today

ORDERED that Mark E. Kellogg is hereby disbarred from the practice of law in the District of Columbia and that prior to filing a petition for reinstatement respondent must first be reinstated to practice law in the state of Virginia. See In re Sibley, 990 A.2d 483, 487-88 (D.C. 2010) (explaining that there is a rebuttable presumption in favor of imposition of identical discipline and exceptions to this presumption should be rare); In re Fuller, 930 A.2d 194, 198 (D.C. 2007) (explaining that a rebuttable presumption of identical reciprocal discipline applies unless one of the exceptions is established); In re Arif, 275 A.3d 889, 889-90 (D.C. 2022) (“[T]he equivalent sanction for revocation in the District is disbarment[.]”) (citation omitted); see also In re Hoffman, 267 A.3d 1016 (D.C. 2022) (conditioning eligibility to seek reinstatement on readmission in original disciplining jurisdiction).

Blackburne-Rigsby, Chief Judge, and Easterly and Howard, Associate Judges signed the order.

The same panel entered a similar order today in a Maryland disbarment.(Mike Frisch)

Bar Discipline & Process | Permalink


As far as I’ve been able to ascertain, judicial contentions or pretenses about the lawfulness of so-called “discipline” being founded on the “presumption” stated are false and clearly and egregiously illegal and unconstitutional (at least in federal courts).

The “Constitution” and federal “Laws” are “the supreme Law of the Land” governing this case, and all “Judges” are “bound thereby;” moreover, “all” courts’ “Officers” are “bound” to “support this Constitution” in all official conduct. U.S. Const. Art. VI. Clearly, no federal “judicial Power” can “extend” any further than allowed “under” the “Constitution” and federal “Laws,” and all the “Power” of any quantity of “inferior” courts cannot extend as far as the “Power” of the “one supreme Court.” Art. III. Federal “judicial Power” (adjudicatory duty) “shall extend to all Cases, in Law and Equity, arising under” the “Constitution.” Id. “No person” may “be deprived” of any “liberty” or any “property” by any federal court “without” all “due process of law.” Amend. V. Federal judges have an “absolute duty” to actually adjudicate, i.e., “decide cases within their jurisdiction.” United States v. Will, 449 U.S. 200, 215 (1980).

Disbarment, in particular, must be used only “for the purpose of preserving the courts of justice” and protecting the public from “persons” who have been proved (by clear and convincing evidence) to be “unfit to practice” in such courts. Ex Parte Wall, 107 U.S. 265, 288 (1883). Each “officer” of a court is “an instrument or agency” of the public “to advance the ends of justice.” Theard v. United States, 354 U.S. 278, 281 (1957). So any “power of disbarment” is limited to “protection of the public” served by the court considering disbarment. Id. Disbarment clearly may not be (and courts must prove that it was not) abused for any other purpose.

“[T]he responsibility that remains” with each court regarding so-called reciprocal disbarment was “authoritatively expounded in Selling.” Theard at 282. Selling emphasized that each court’s judges are bound by their “duty” not “to abdicate” their “own functions” (duties) “by treating” any prior court’s purported “judgment” as “excluding all inquiry” by such subsequent court. Selling v. Radford, 243 U.S. 46, 50 (1917). Each attorney’s “admission to the Bar of” a “court is secured” by federal law and the Constitution, so such “right may not be taken away” based on the mere existence of any prior disbarment order. Id. at 48. An attorney cannot “be deprived” of the “liberty” and “property” at stake “without” all “due process of law.” U.S. Const. Amend. V.

“[B]efore sanction is given” by any subsequent court to any other court’s mere “prayer for disbarment,” such subsequent court must conduct its own “investigation.” Selling at 48-49. “[T]he character and scope of” the later court’s “investigation” necessarily “must depend upon” purported “acts of misconduct and wrong” and “the nature of the proof relied upon” to “establish” such “misconduct.” Id. at 49. Each court must identify the relevant acts and proof thereof.

Each court’s judges have “the duty” to “determine for [them]selves” the attorney’s “right” to “be a member of” such court’s “Bar.” Id. at 50. Each court must (sua sponte) acknowledge when even “one” of the “conditions” identified in Selling “appear[ed]” in a case. Id. at 50-51. One such condition is that “there was such an infirmity of proof as to facts” purportedly “found” purportedly “establish[ing]” that the attorney’s conduct violated a rule of conduct “as to give rise to a clear conviction” that the later court cannot “consistently with” its “duty” (to the Constitution, this Court, the public and the attorney) “accept” prior judges’ purported “conclusion” that the attorney’s conduct violated a rule of conduct. Id. at 51. The mere existence of an order disbarring an attorney is not clear and convincing evidence that the attorney engaged in misconduct.

Posted by: Jack Jordan | Apr 27, 2023 10:03:00 AM

Just this week, the Supreme Court docketed a petition addressing the very tactics used to justify reciprocally disbarring an attorney. See In his petition, the disbarred attorney addressed how judges abused presumptions about prior courts’ orders or opinions regarding purported discipline:
The way these judges treated their own and other judges’ hearsay underscored a crucial truth. These judges were not adjudicating. They were fabricating. Judges abused court resources to pretend to make “clear and convincing evidence” out of absurdly vague contentions and obvious falsehoods. They intended other judges to pretend their hearsay constituted proof, and judges did pretend.

Posted by: Jack Jordan | Apr 27, 2023 10:24:42 AM

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