United States Court of Appeals
For the First Circuit
No. 04-8016
IN RE: GEORGE E. KERSEY,
Respondent.
____________________
ON ORDER TO SHOW CAUSE WHY RECIPROCAL
DISCIPLINE SHOULD NOT BE IMPOSED
Before
Selya, Lynch and Lipez,
Circuit Judges.
George E. Kersey on memorandum for respondent.
March 25, 2005
Per Curiam. Attorney George E. Kersey was ordered
disbarred by the New Hampshire Supreme Court in February 2004 and
then, in reciprocal fashion, by a single justice of the
Massachusetts Supreme Judicial Court in July of that year.
Initiating our own reciprocal discipline proceeding in September
2004, we directed Kersey to show cause why this court should not
impose a similar sanction. Having reviewed his written responses
and held oral argument, we now order that Kersey be disbarred from
the practice of law before this court.
Our recent decision in In re Williams, 398 F.3d 116 (1st
Cir. 2005) (per curiam), outlined the methodology that applies in
this context. "As a general rule," we stated, "discipline similar
to that imposed in the state court will be imposed in a reciprocal
proceeding." Id. at 119. An exception can arise if one of the
circumstances listed in Selling v. Radford, 243 U.S. 46, 51 (1917),
and memorialized in Rule II.C of this court's Rules of Attorney
Disciplinary Enforcement (2002), is involved. That rule provides
that this court will impose substantially the same discipline as
the original court unless it is persuaded:
1. that the procedure used by the other
court was so lacking in notice or
opportunity to be heard as to constitute
a deprivation of due process; or
2. that there was such an infirmity of proof
establishing the misconduct as to give
rise to the clear conviction that this
Court could not, consistent with its
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duty, accept as final the conclusion on
that subject; or
3. that the imposition of substantially
similar discipline by this Court would
result in grave injustice; or
4. that the misconduct established is deemed
by this Court to warrant different
discipline.
1st Cir. Discip. R. II.C. We also explained in Williams that the
respondent attorney bore twin burdens in such a proceeding: first,
to "ensure that th[e] whole of the record is furnished to the court
in a timely manner and to identify the parts of the record upon
which he relies," 398 F.3d at 119; and, second, to "carry the
devoir of persuasion, by clear and convincing evidence, that
imposition of reciprocal discipline is unwarranted," id. We
emphasized that "[g]iven the limited nature of our inquiry, the
norm will be for this court to impose discipline which is
substantially similar to that imposed by the state court." Id.
The New Hampshire Supreme Court disbarred Kersey after
finding him in contempt of court in three respects in connection
with two of its orders. See In re Kersey, 147 N.H. 659, 797 A.2d
864 (2002) (holding him in contempt); In re Kersey, 150 N.H. 585,
842 A.2d 121 (2004) (ordering disbarment). Specifically, it
concluded that Kersey had violated: (i) a September 2001 order by
continuing to practice law after being suspended from practice;
(ii) that same order by failing to turn over his client files to a
designated attorney; and (iii) a December 2001 order by failing to
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bring his client files to a scheduled hearing before a referee.
Kersey now denies that he continued to practice law following his
suspension and insists that he had a reasonable basis for refusing
to produce his client files.
The continued-law-practice charge arose out of the
following events. The state supreme court's suspension order was
itself the product of a reciprocal discipline proceeding, which had
been prompted by outstanding contempt citations in Vermont and an
ensuing disciplinary sanction in Massachusetts. The September 2001
order suspended Kersey from the practice of law for three months,
beginning on October 20, 2001. On October 19, Kersey appealed to
the New Hampshire Supreme Court from the dismissal of a case he had
brought on behalf of several clients. And the following month he
filed two pleadings in that appeal. According to Kersey, his
pursuit of the appeal did not violate the suspension order,
inasmuch as he was there only for the purpose of challenging an
award of attorneys' fees against him personally (and, therefore, he
was the real party in interest). In other words, because he was
representing himself rather than his clients–-indeed, because only
he (not his clients) had standing to pursue such a challenge on
appeal–-he was not engaged in the practice of law.
The state supreme court disagreed, noting that "[t]he
appeal in question was filed by [Kersey] in his capacity as his
clients' attorney, and stemmed from a case in which [he] was acting
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as his clients' attorney." 797 A.2d at 866-67. Accordingly, when
Kersey in November "filed with this court two pleadings ..., he
violated the September order." Id. at 867. Kersey now claims that
this analysis was flawed.1
An initial obstacle encountered by Kersey is that he has
not supplied many of the relevant state court papers, despite our
request that he do so (and despite his burden in this regard). In
particular, we have none of the materials from the state court
litigation--such as the award of attorneys' fees, the notice of
appeal, and the two subsequent pleadings cited by the state supreme
court. We thus cannot confirm, for example, that the fees award
was directed only against Kersey personally. Regardless, even if
we accept all of Kersey's factual allegations as true, we would
still conclude that Kersey has failed to establish by clear and
convincing evidence that a lesser sanction was warranted.
The state supreme court's finding that the suspension
order was violated necessarily rested on a determination, as a
matter of state law, that Kersey's pursuit of the appeal
constituted the practice of law. In challenging that finding,
Kersey is asking us to conclude, in essence, that the state court
misapplied state law. It is not within the province of a federal
1
Kersey also had two cases pending in federal district court
during this period. While a referee relied on them as well in
finding the continued practice of law, the state supreme court did
not. Accordingly, we need not pursue Kersey's argument that the
suspension order did not apply to federal litigation.
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court to render such a judgment. See, e.g., Wainwright v. Goode,
464 U.S. 78, 84 (1983) (per curiam) ("the views of the State's
highest court with respect to state law are binding on the federal
courts"); Noviello v. City of Boston, 398 F.3d 76, 91 (2005)
(similar). Nor is the state supreme court's analysis obviously
flawed. The court stated, and Kersey has not disputed, that he
filed the appeal in his capacity as his clients' attorney. We take
this to mean that Kersey's intent to appeal only on his own behalf
was not apparent from the face of his appellate pleadings. It is
hardly unreasonable, when a suspended attorney appears in court, to
demand clear evidence of such intent from the outset.2
This raises a related consideration. Even if Kersey's
interpretation of the suspension order could be viewed as plausible
at the time, it was by no means airtight. The attorney who was to
collect his client files, for example, had advised him that his
position was untenable. Under these circumstances, and especially
where Kersey was serving a suspension precisely because of earlier
contempt citations, his decision to press ahead without first
seeking guidance from the state supreme court reflects a level of
recklessness that is deserving of little sympathy.
2
Nor, for that matter, is it even clear that the state court
would adopt the standing principles upon which Kersey relies. He
has pointed to federal case law in this regard but has cited no
relevant state precedents.
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Kersey's refusal to hand over his client files, in
violation of two court orders, further supports the state court's
choice of discipline. To be sure, disbarment might well be
unwarranted on the basis of these violations alone. The first
order imposed no explicit command on Kersey in this respect; Kersey
had what he presumably thought were legitimate reasons to withhold
the files; his noncompliance was somewhat short-lived; and his
former clients suffered no evident prejudice. In one respect,
however, the second violation here could be deemed more egregious
than the practicing-law offense: while Kersey might plausibly (if
erroneously) have believed that his participation in the state
appeal did not contravene the suspension order, he could have
harbored no doubt that he was in direct defiance of the December
order. These violations thus reinforce the reasonableness of the
state court's sanction.
For these reasons, we conclude that cause has not been
shown why reciprocal discipline substantially similar to that
ordered by the New Hampshire Supreme Court should not be imposed
here. Accordingly, Attorney George E. Kersey is hereby disbarred
from the practice of law before this court.
So ordered.
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