FILED
United States Court of Appeals
Tenth Circuit
December 18, 2007
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
COMMITTEE ON THE CONDUCT
OF ATTORNEYS,
Petitioner-Appellee,
v. No. 07-4097
D. BRUCE OLIVER,
Respondent-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 06-mc-952-TS)
Submitted on the briefs: *
D. Bruce Oliver, D. Bruce Oliver, L.L.C., Salt Lake City, Utah, for Respondent-
Appellant.
Peggy A. Tomsic, Tomsic & Peck, L.L.C., Salt Lake City, Utah, for
Petitioner-Appellee.
Before TYMKOVICH, BALDOCK, and EBEL, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
EBEL, Circuit Judge.
The United States District Court for the District of Utah suspended attorney
D. Bruce Oliver from the practice of law in the federal courts of Utah for one
year, followed by a three-year probation period, and entered an order of public
reprimand. Mr. Oliver appeals to this court, arguing that the ruling is
constitutionally infirm and factually erroneous. We conclude that proceedings in
the district court leading to Mr. Oliver’s suspension are in conformance with the
United States Constitution and that the underlying findings and conclusions are
supported by sufficient evidence. We affirm.
I.
At the time of disciplinary proceedings, Mr. Oliver had practiced law for
nineteen years and had appeared frequently before the United States District
Court for the District of Utah. Mr. Oliver had Rule 11 sanctions imposed on him
twice and received several formal and informal admonishments by the court. On
August 23, 2005, Judge Paul G. Cassell issued a sealed complaint, referring
Mr. Oliver to the Utah State Bar Office of Professional Conduct and the District
of Utah Disciplinary Panel for failure to comply with deadlines and court orders
in twenty-seven cases.
A three-member disciplinary panel (the Panel) ordered Mr. Oliver to show
cause why the Panel should not impose disciplinary action and referred the matter
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to the Committee on Conduct of Attorneys (the Committee). After the then-chair
of the Committee recused himself due to a conflict, attorney Roger Segal was
appointed as acting chair. Another attorney-member of the Committee, Peggy
Tomsic, was designated to investigate the allegations and prepare a report and
recommendation.
Mr. Oliver filed a response to the order, in which he denied or attempted to
explain the complaint’s allegations. Ms. Tomsic conducted her investigation and
submitted a report detailing Mr. Oliver’s practices. According to her report,
Mr. Oliver could be charged with violations of the Utah Rules of Professional
Conduct relating to meritorious claims and contentions (Rule 3.1), 1 expediting
litigation (Rule 3.2), 2 fairness to opposing party and counsel (Rule 3.4), 3 and
1
Rule 3.1 provides:
A lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and fact for
doing so that is not frivolous, which includes a good-faith argument
for an extension, modification or reversal of existing law. A lawyer
for the defendant in a criminal proceeding, or the respondent in a
proceeding that could result in incarceration, may nevertheless so
defend the proceeding as to require that every element of the case be
established.
2
Rule 3.2 requires “[a] lawyer [to] make reasonable efforts to expedite
litigation consistent with the interests of the client.”
3
In pertinent part, Rule 3.4 prohibits a lawyer from “knowingly disobey[ing]
an obligation under the rules of a tribunal, except for an open refusal based on an
assertion that no valid obligation exists”; and, “in pretrial procedure, . . . fail[ing]
to make reasonably diligent effort to comply with a legally proper discovery
(continued...)
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misconduct (Rule 8.4) 4 in at least eighteen of the cases addressed in the complaint
and in one case submitted to the Committee after the complaint was filed.
Ms. Tomsic recommended that Mr. Oliver be publicly reprimanded and suspended
from the practice of law in the district court for three months.
The voting Committee members (not including Mr. Segal, the acting chair)
agreed with the substance of Ms. Tomsic’s report, but recommended the
imposition of more severe sanctions. The report and the Committee’s
recommendations were transmitted to the Panel, which directed that an
evidentiary hearing be held before a neutral hearing examiner. The Chief Judge
named Magistrate Judge Paul M. Warner as the hearing examiner. Ms. Tomsic
was to serve as the Committee’s prosecutor.
At a status and scheduling conference, Ms. Tomsic and Mr. Oliver’s
counsel agreed on a pretrial motion cutoff date, a pre-hearing exchange of exhibit
and witness lists, and a hearing date. Mr. Oliver then filed five motions to
dismiss the action, asserting that the disciplinary procedure violated Mr. Oliver’s
due process rights in several ways: lack of adequate notice, failure of proof, bias
on the part of Committee chair Segal, and reassertion of conduct that had
3
(...continued)
request by an opposing party.” Rule. 3.4(c),(d).
4
Rule 8.4 provides that it is “professional misconduct for a lawyer to,”
among other things, “violate or attempt to violate the Rules of Professional
Conduct,” and “engage in conduct that is prejudicial to the administration of
justice.” Rule 8.4(a), (d).
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previously resulted in sanctions or public reprimand by way of a newspaper
article. The magistrate judge, acting as hearing examiner, ruled that the hearing
would go forward as scheduled, and that he would rule on the dismissal motions
after completion of briefing.
A two-day hearing was held under relaxed rules of evidence, due to the
administrative nature of the proceedings. The Committee, represented by
Ms. Tomsic, submitted documentary evidence. Mr. Oliver proffered exhibits and
testified at length. Both parties presented opening and closing arguments.
After the hearing, the hearing examiner issued his findings of fact,
conclusions of law, and recommendation. 5 The hearing examiner first denied
Mr. Oliver’s motions to dismiss. He determined that Mr. Oliver had received
more than adequate notice of the charges against him, the Committee’s case had
met the clear-and-convincing standard of proof, the previous sanctions and
newspaper article had no collateral-estoppel effect, and there was no evidence of
bias on the part of the acting Committee chair.
On rule-violation charges, the hearing examiner made extensive findings
with regard to specific cases. He then found there was clear and convincing
5
Pleadings in the disciplinary proceedings were filed in the district court
under seal and the underlying record is sealed in this court. The Panel’s final
order, however, instructed the clerk of the court to unseal the hearing examiner’s
report and recommendation and all subsequent papers. Aplt. App., Vol. I at 137.
The factual background provided in this Order and Judgment can be found in the
report and recommendation or the Panel’s order.
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evidence that “since at least 2001, [Mr. Oliver] has knowingly engaged in a
pattern of not responding to legitimate discovery requests, orders to show cause,
and dispositive motions, and continued that pattern even after Judge Cassell filed
the Complaint in this matter.” Aplt. App., Vol. I at 29. Mr. Oliver’s hearing
testimony “was often incredible and at times outrageous. . . . , antagonistic,
defensive, arrogant, and combative.” Id. at 54-55. “[A]t best, Mr. Oliver is
completely uninformed about his professional responsibilities, and at worst, he
was lying under oath.” Id. at 55. For instance, Mr. Oliver testified that “it’s okay
not to respond” to orders to show cause because the order itself said “if you don’t
[respond] your case is going to be dismissed.” Id. at 59. He felt that if the court
thought a response necessary it “would say, ‘You know, you need to respond to
this, and failure to respond will result in sanctions.’” Id.
The hearing examiner concluded that, in total, Mr. Oliver’s conduct was
“incredibly disrespectful to the court, opposing counsel, and parties.” Id. 65-66.
In the course of his “rogue practice,” Mr. Oliver had violated Rules 3.1 and 8.4(a)
by filing frivolous complaints and claims and violated Rules 3.2, 3.4, and 8.4(a)
by failing to comply with court orders, respond to proper discovery requests, and
withdraw claims after being warned that they appeared to be frivolous. Id. at 62,
65. As an appropriate sanction, the hearing examiner recommended a public
reprimand and a one-year suspension from the practice of law before the United
States District Court for the District of Utah and, upon reinstatement, be placed
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on probation for a period of three years. While suspended and prior to
reinstatement, Mr. Oliver should attend a class on professional responsibility and
demonstrate substantial reorganization of his law practice to eliminate any future
misconduct.
Mr. Oliver objected to the hearing examiner’s report and requested a
de novo hearing before the Panel. He contended that the report was not supported
by the evidence, that the bases for suspension were not identical to the bases of
the complaint, and that Rule 83-1.5 of the Civil Rules of Practice of the United
States District Court for the District of Utah, concerning the discipline of
attorneys, is unconstitutionally vague. The Panel, composed of a district judge,
magistrate judge, and bankruptcy judge, reviewed the report and Mr. Oliver’s
objections. As a threshold matter, the Panel determined that a disciplinary
proceeding is not the proper forum for a declaration that a rule is unconstitutional.
It then found that the hearing examiner “was thorough and fair” and that his
report was “well supported by the record.” Aplt. App., Vol. I at 136. The Panel’s
order noted its concern that “opposing parties and counsel have been directly
affected by Mr. Oliver’s inability to exercise the fundamental skills of honest and
timely analysis and communication.” Id. at 137. The Panel entered its order
suspending Mr. Oliver for not less than one year, placing him on probation for
three years, and requiring a public reprimand. Mr. Oliver’s subsequent motion to
alter judgment was denied.
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II.
This court has subject-matter jurisdiction over Mr. Oliver’s appeal of the
Panel’s order. In re Martin, 400 F.3d 836, 840-41 (10th Cir. 2005). We review
the suspension decision for an abuse of discretion. Id. at 841. And “[w]hile we
generally construe pro se pleadings liberally,” we decline to extend “the same
courtesy” to Mr. Oliver, a licensed attorney. Mann v. Boatright, 477 F.3d 1140,
1148 n.4 (10th Cir.), pet. for cert. filed, 76 USLW 3226 (Aug. 17, 2007)
(No. 07-523).
A. Constitutional claims
As a prelude to discussing Mr. Oliver’s constitutional arguments, we
recognize that “federal courts must afford attorneys some due process rights
before suspending or disbarring them.” Mattox v. Disciplinary Panel of U.S. Dist.
Court for Dist. of Colo., 758 F.2d 1362, 1365 (10th Cir. 1985) (discussing the
denial of an application for readmission to the bar). An attorney subject to
sanctions is entitled to receive reasonable notice of the allegations against him
and an opportunity to respond. Id. at 1368-69. The attorney’s due process rights,
however, “do not extend so far as to guarantee the full panoply of rights afforded
to an accused in a criminal case.” Razatos v. Colo. Supreme Court, 746 F.2d
1429, 1435 (10th Cir. 1984) (quotation omitted).
Mr. Oliver received ample notice of the claims against him, as well as the
opportunity to be represented by counsel, submit legal briefs, present evidence,
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testify on his own behalf, and make closing arguments. Further, the hearing
examiner searched the record to determine whether the Committee proved its case
by clear and convincing evidence. We conclude that Mr. Oliver’s right to
procedural due process was not violated.
Mr. Oliver’s appellate brief contains scattered contentions of additional
constitutional violations. None of these arguments provides a reason to reverse
the suspension order. Mr. Oliver alludes to a substantive due process violation,
but he did not raise this issue before either the hearing examiner or the Panel.
Thus, he waived any argument premised on the right to substantive due process.
Cf. In re Surrick, 338 F.3d 224, 235 (3rd Cir. 2003) (stating that attorney waived
issue by failing to request relief in initial disciplinary proceedings). Further,
“[t]he ultimate standard for determining whether there has been a substantive due
process violation is whether the challenged government action shocks the
conscience of federal judges.” Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir.
2006) (quotations omitted). We perceive no shocking actions on the part of the
Committee, the hearing examiner, or the Panel.
Mr. Oliver also lists an issue challenging the constitutionality of
D.U. Civ. R. 83-1.5, pertaining to attorney discipline in the Utah federal courts.
He claims that the rule
permit[s] a lesser standard of preponderance rather tha[n] requiring
clear and convincing evidence, by encouraging arbitrary application
and enforcement, by encouraging ex parte communications between
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the committee, the actor, and the court, the judex, against the
defendant, Mr. Oliver, the reus, by failing to dispose of pretrial
motions at the pretrial stage, by failing to conduct the trial in the
final stage of litigation.
Aplt. Opening Br. at 9. We do not address this muddled statement. Mr. Oliver’s
briefs do not develop or support his contention that D.U. Civ. R. 83-1.5 is
unconstitutional. “Where an appellant lists an issue, but does not support the
issue with argument, the issue is waived on appeal.” Christian Heritage Acad. v.
Okla. Secondary Sch. Activities Ass’n, 483 F.3d 1025, 1031 (10th Cir. 2007).
B. Sufficiency-of-the-evidence arguments
Other issues listed by Mr. Oliver concern the sufficiency of the evidence.
His statement-of-issues section states that “the final conclusion of dishonesty was
impermissible where the trial judge [sic] concluded to the contrary that there
existed no evidence of dishonesty or selfish motive” and that the evidence does
not support a determination that he violated the specified Utah Rules of
Professional Conduct. Aplt. Br. at 9-10.
Mr. Oliver’s factual discussion calls the Panel’s references to dishonesty
“false outlandish insinuations.” Id. at 20. His argument section, however, fails to
formulate a legal argument based on this issue. As we have stated, “[s]cattered
statements in the appellant’s brief are not enough to preserve an issue for appeal.”
Christian Heritage Acad., 483 F.3d at 1031 (quotation omitted). Mr. Oliver has
abandoned this argument on appeal.
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Finally, and most importantly, this court has no difficulty in agreeing
with the Panel that Mr. Oliver’s conduct violated the applicable rules of
professional responsibility. In suspending Mr. Oliver from the practice of law,
placing him on three-year probation upon readmission, requiring re-organization
of his practice, and ordering a public reprimand, the Panel did not abuse its
discretion.
The judgment of the district court is AFFIRMED.
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