United States Court of Appeals
For the First Circuit
No. 06-8033
IN RE: MALCOLM J. BARACH,
Respondent.
ON SHOW-CAUSE ORDER FOR RECIPROCAL DISCIPLINE
Before
Torruella, Selya, and Boudin, Circuit Judges.
Malcolm J. Barach pro se.
August 28, 2008
Per Curiam. On August 31, 2006, the Massachusetts
Supreme Judicial Court (SJC), acting upon and upholding findings
and conclusions reached by a Board of Bar Overseers hearing
committee and an appeals panel, see Mass. S.J.C. R. 4:01 § 8(4),
ordered the respondent attorney Malcolm J. Barach suspended from
the practice of law for a period of two years. According to that
court's order, the respondent had (with respect to three unrelated
clients) "failed to keep or maintain adequate records of client
accounts, failed to return unearned client fees, charged 'clearly
excessive' fees, for work he did not perform, falsified time
records, and made intentional misrepresentations to bar counsel."
Following receipt of official notice of the respondent's
suspension, this court issued an order to show cause why the
respondent should not be reciprocally disciplined. See Fed. R.
App. P. 46(b)(2). The respondent filed an opposition and sought to
appear in person. See Fed. R. App. P. 46(c). We held a non-
evidentiary hearing on July 30, 2008. We now impose reciprocal
discipline and suspend the respondent from practice before this
court.
The framework for reciprocal disciplinary proceedings is
familiar. A member of this court's bar who "has been suspended or
disbarred from practice in any other court" is subject to
reciprocal discipline. Fed. R. App. P. 46(b)(1)(A). Upon
receiving official notice that another court has imposed such
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discipline, see 1st Cir. R. Att'y Discip. Enf. (Discip. R.) II.A,
a disciplinary panel is named, see Discip. R. II.B, V.A., and the
respondent attorney is ordered to show cause why substantially
similar discipline should not be imposed, Discip. R. II.B.2. If
the respondent files a reply within the allotted period, the panel
must consider whether he or she has demonstrated extenuating
circumstances sufficient to warrant action different than that
taken by the original court. Discip. R. II.C.
When, as now, disciplinary sanctions have been imposed by
a state court, we lack jurisdiction in a federal disciplinary
proceeding to vacate or modify the state court's imposed
discipline. See In re Williams, 398 F.3d 116, 118 (1st Cir. 2005)
(per curiam). By the same token, we ordinarily treat the state
court's factual findings with a high degree of respect in
reciprocal disciplinary proceedings. Id.
Withal, the judgment of the state court as to the type
and kind of discipline is not conclusive for federal disciplinary
purposes. In re Ruffalo, 390 U.S. 544, 547 (1968). A federal
court remains free to make its own judgment as to the federal
discipline to be imposed. See In re Williams, 398 F.3d at 118. To
accomplish this task, the federal court should fully consider the
state record.1 Selling v. Radford, 243 U.S. 46, 51 (1917).
1
The burden of submitting the record of the state proceedings
is on the respondent. See In re Williams, 398 F.3d at 119. Should
the respondent default on this responsibility, the court may assume
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This does not mean, however, that a reciprocal discipline
proceeding is in any sense a de novo proceeding. "As a general
rule, discipline similar to that imposed in the state court will be
imposed in a reciprocal proceeding." In re Williams, 398 F.3d at
119. An exception may be made only in the event that we discern
from the state record "(i) a deprivation of procedural due process
(usually defined as a want of notice or opportunity to be heard),
(ii) an infirmity of proof of misconduct such as would give rise to
a clear conviction on our part that we could not consistently with
our duty accept as final the [state court's] ultimate conclusion,
or (iii) the existence of some other serious impediment to
acceptance of the state court's conclusion." Id. (citation and
internal quotation marks omitted). The essence of this paradigm
has been memorialized in Disciplinary Rule II.C, which provides
that in reciprocal disciplinary matters the panel should impose
substantially the same discipline as was imposed by 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 duty, accept as final
the conclusion on that subject; or
that the record supports the state court's findings. See id. at
120 n.1.
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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 the Court to warrant different discipline.
Discip. R. II.C.
When all is said and done, the respondent attorney must
carry the burden of proof, by clear and convincing evidence, that
the imposition of substantially similar discipline is unwarranted.
In re Williams, 398 F.3d at 119; In re Surrick, 338 F.3d 224, 232
(3d Cir. 2003). This usually presents an uphill climb: we have
recognized 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." In re
Williams, 398 F.3d at 119.
Against this backdrop, we turn to the matter at hand.
All the bases have been touched. The customary show-cause order
issued. The respondent attorney filed a reply and submitted the
record of the state proceedings. He then requested and received a
hearing, and proceeded to argue eloquently in his own defense.
We have examined the respondent's proffer and mulled his
contentions. Despite the wide-ranging nature of his attack, the
only argument that requires discussion is his claim that the
Commonwealth denied him due process by setting the bar for proof of
misconduct too low. We proceed immediately to that claim.
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Massachusetts places the burden of proving misconduct on
Bar Counsel in attorney disciplinary proceedings, but authorizes
findings of misconduct to be made on the basis of a preponderance
of the evidence. Mass. R. B.B.O. § 3.28. This is a minority rule;
most jurisdictions require clear and convincing evidence in such
proceedings. See, e.g., In re Thyden, 877 A.2d 129, 137 (D.C.
2005); Statewide Griev. Comm. v. Presnick, 575 A.2d 210, 215 (Conn.
1990); La. State Bar Ass'n v. Edwins, 329 So. 2d 437, 441-42 (La.
1976); Bar Ass'n v. Marshall, 307 A.2d 677, 681 (Md. 1973). The
respondent alleges that the Commonwealth's choice is
constitutionally prohibited, that is, before the Commonwealth could
suspend his license to practice law, it was constitutionally
required to prove the grounds for the suspension by no less than
clear and convincing evidence. This lowering of the bar, he
argues, rendered the state court proceedings fundamentally unfair
and, thus, violated his due process rights.
Admittedly, the Due Process Clause applies to
disciplinary proceedings. See, e.g., In re Franco, 410 F.3d 39, 40
(1st Cir. 2005); In re Cordova-González, 996 F.2d 1334, 1336 (1st
Cir. 1993). But the Due Process Clause does not demand that a
state devise an ideal set of procedures for attorney discipline.
It suffices to satisfy due process if a state adopts procedures
that collectively ensure the fundamental fairness of the
disciplinary proceedings. See Newman v. Burgin, 930 F.2d 955, 961
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(1st Cir. 1991). In other words, the Due Process Clause imposes a
floor below which a state cannot descend, not a level of perfection
that a state must achieve.
We understand the importance of a lawyer's right to
practice law and agree that, once granted, that right cannot be
taken away in an arbitrary or capricious manner. Yet the Due
Process Clause is flexible, and reasonable minds can differ as to
the need for elevated levels of proof in particular situations.
Viewed in this light, the use of a preponderance of the evidence
standard in bar disciplinary proceedings does not offend due
process. After all, many types of important property rights
typically rest, in contested proceedings, on proof by preponderant
evidence. See, e.g., Vigilantes, Inc. v. U.S. Dep't of Labor, 968
F.2d 1412, 1416 (1st Cir. 1992) (dealing with debarment from
federal procurement); Appeal of Regenesis Corp., 937 A.2d 279, 284
(N.H. 2007) (dealing with revocation of a solid waste permit);
Eidson v. State Dep't of Licensing, 32 P.3d 1039, 1044 (Wash. Ct.
App. 2001) (dealing with revocation of a real estate appraiser's
license). Moreover, other jurisdictions besides Massachusetts use
a preponderance standard in attorney disciplinary matters. See,
e.g., In re Robson, 575 P.2d 771, 776 (Alaska 1978); In re Crane,
255 N.W.2d 624, 627 (Mich. 1977); Weems v. Supreme Ct. Comm. on
Prof'l Conduct, 523 S.W.2d 900, 904 (Ark. 1975). Although there is
something to be said on policy grounds for requiring a more sturdy
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quantum of proof, the use of a preponderance standard is not so
arbitrary or irrational as to render state disciplinary proceedings
that use it fundamentally unfair. See In re Friedman, 51 F.3d 20,
22 (2d Cir. 1995).
The respondent claims that the case law demands a
different outcome. In support, he cites three decisions. None of
them stands for the view of the Constitution that he espouses.
The respondent's most loudly bruited authority is the
decision in In re Medrano, 956 F.2d 101 (5th Cir. 1992). There,
the Fifth Circuit held that a federal district court had applied
the wrong standard in a disbarment proceeding. Id. at 102. The
decision does not implicate constitutional principles but, rather,
hinges on the fact that disciplinary proceedings in federal courts
in the Fifth Circuit require findings based on clear and convincing
evidence — a standard that the district court did not apply. See
id. at 102.
The second case relied on by the respondent is Koden v.
U.S. Department of Justice, 564 F.2d 228 (7th Cir. 1977). That
case involved an attorney's year-long suspension from practice
before the Immigration and Naturalization Service and the Board of
Immigration Appeals. A federal district court upheld the
suspension and the lawyer appealed. He neither advanced a
constitutional argument nor challenged the quantum of proof needed
to buttress the suspension; indeed, the only mention of clear and
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convincing evidence in the opinion is the Seventh Circuit's
acknowledgment of the standard applied by the agencies.2 Id. at
235. The adoption of such a standard by an administrative agency
is a far cry from a declaration that such a standard is
constitutionally required.
The last case in the respondent's trilogy is Collins
Securities Corp. v. SEC, 562 F.2d 820 (D.C. Cir. 1977). The court
there held that the SEC erred in applying a preponderance standard
rather than a clear and convincing evidence standard in revoking
various securities industry privileges (e.g., broker-dealer
registrations). Id. at 821. While the court, which vacated the
revocations, plainly favored a standard requiring the use of clear
and convincing evidence in connection with the levying of severe
civil sanctions, its choice of that standard was couched as a
matter of policy applicable to federal administrative proceedings,
not as a matter of constitutional law. See id. at 823-25.
That ends this aspect of the matter. Refined to bare
essence, the respondent's argument raises policy concerns, not
constitutional concerns. But states are sovereigns, and the range
of policy choices allowed to them by our federal system in general
and the Due Process Clause in particular is wide. And where, as
2
The agencies adopted the clear and convincing evidence
standard on policy grounds, reasoning that "more than a mere
preponderance of the evidence should be required to deprive an
attorney of his right to practice his profession." Koden, 564 F.2d
at 235.
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here, the courts of a state have made a constitutionally
permissible choice of a standard of proof, it is not the place of
a federal court in a reciprocal disciplinary proceeding to
substitute its judgment for that of the state. That is true even
if we, writing on a pristine page, might have chosen some other
standard. Cf. Rodríquez-Díaz v. Sierra-Martínez, 853 F.2d 1027,
1031 n.4 (1st Cir. 1988) (concluding that federal court must
respect Puerto Rico's policy choice as to age of majority).
Accordingly, we must reject the respondent's constitutional
challenge to the use of a preponderance standard here.
The respondent's other arguments need not detain us. A
proceeding designed to weigh the advisability of reciprocal
discipline is not a vehicle for retrying the original disciplinary
proceeding. See In re Williams, 398 F.3d at 119. Nor is it a
vehicle either for the correction of garden-variety errors or for
the revisiting of judgment calls. See In re Bird, 353 F.3d 636,
637-38 (8th Cir. 2003); In re Chipley, 448 F.2d 1234, 1235 (4th
Cir. 1971).
In this instance, the respondent's other claims are
unremarkable. They challenge such things as alleged evidentiary
errors (e.g., the hearing committee's decision to accept an
affidavit from an expert witness and, concomitantly, to exclude the
expert's live testimony), alleged procedural bevues (e.g., the
denial of a motion for recusal), alleged misinterpretations of
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state law (e.g., the rejection of a res judicata defense), and the
like. We have carefully reviewed the state record and doubt that
any of these challenges have merit. More importantly, the putative
errors do not suggest any deprivation of due process, any
meaningful infirmity in the Commonwealth's proof, or any serious
reason why we should hesitate to accept the state court's
conclusions. In short, we see nothing sufficiently egregious to
warrant setting aside the presumption of regularity that attends
our review.
We need go no further. Cause not having been shown, we
impose upon the respondent attorney reciprocal discipline
commensurate to that imposed by the SJC. Accordingly, attorney
Malcolm J. Barach is hereby suspended from the practice of law
before this court. That suspension shall run concurrent with the
suspension previously imposed by the SJC, see Discip. R. VII.A, and
he shall be eligible to apply for reinstatement at the end of his
state suspension.
So Ordered.
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