United States Court of Appeals,
Eleventh Circuit.
No. 95-4230
Non-Argument Calendar.
In the Matter of William A. CALVO, III, Petitioner.
July 24, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 94-09-ATTY) Norman C. Roettger, Jr.,
Chief Judge.
Before TJOFLAT, Chief Judge, and HATCHETT and CARNES, Circuit
Judges.
PER CURIAM:
William A. Calvo, III, appeals the district court's order that
disbarred him from practicing law in the Southern District of
Florida. In disbarring Calvo, the district court relied upon the
Florida Supreme Court's disbarment of him. That reliance was
improper, Calvo contends, because the proceedings that resulted in
his state court disbarment were constitutionally deficient. For
the reasons discussed below, we affirm the district court's order.
I. BACKGROUND
In 1988, a federal district court granted the Securities and
Exchange Commission's ("SEC") motion for an injunction prohibiting
Calvo from violating the federal securities laws. SEC v. Elec.
Warehouse, Inc., 689 F.Supp. 53 (D.Conn.1988), aff'd, 891 F.2d 457
(2d Cir.1989), cert. denied, 496 U.S. 942, 110 S.Ct. 3228, 110
L.Ed.2d 674 (1990). The court found that Calvo had directly
violated the Securities and Exchange Act of 1934 (the "Securities
Act") and its related rules, and also that Calvo had aided and
abetted others in violating the Securities Act and its rules. As
a result, the SEC suspended Calvo from appearing or practicing
before it for two years. In re Calvo, SEC Admin.Proc. No. 3-7038.
Thereafter, the Florida Bar instituted disciplinary
proceedings against Calvo, based upon his having committed
securities fraud. An evidentiary hearing was held, after which the
Florida Bar referee recommended that Calvo be disbarred. Calvo
challenged that recommendation before the Florida Supreme Court on
several grounds, all of which that court rejected; it ordered
Calvo disbarred. The Florida Bar v. Calvo, 630 So.2d 548
(Fla.1993), cert. denied, --- U.S. ----, 115 S.Ct. 58, 130 L.Ed.2d
16 (1994). Calvo filed a petition for writ of certiorari in the
United States Supreme Court, which was denied.
In 1994, the federal district court entered an order directing
Calvo to show cause within thirty days "why the imposition of the
identical discipline by this court would be unwarranted and the
reasons therefor." In his response to that order, Calvo alleged
numerous constitutional defects in the Florida state court
proceedings, and requested an evidentiary hearing before the
district court. Calvo attached several documents to his response,
including: (1) a forty-six page "certified narrative" written by
Calvo regarding the Florida proceedings, (2) copies of the briefs
that both parties filed before the Florida Supreme Court, (3) a
copy of the Florida Supreme Court's decision, (4) a copy of the
SEC's decision, and (5) Calvo's motion for rehearing before the
Florida Supreme Court. The district court declined to conduct a
hearing, and, in 1995, pursuant to its local rules of disciplinary
enforcement, ordered that Calvo be disbarred from practice before
it. See S.D.Fla. Rules Governing Attorney Discipline, Rule V.E.
Calvo appeals that order.
II. DISCUSSION
A.
We must first decide whether we have jurisdiction over
Calvo's appeal. The jurisdictional question focuses on whether
there is a case or controversy under Article III of the United
States Constitution. In supplemental briefs filed in this Court,
both Calvo and the government contend that we have jurisdiction.
We agree. Although neither the Supreme Court nor this Court has
ever expressly held that we have jurisdiction over an appeal from
a district court's disbarment order, there is an abundance of
authority from the Supreme Court and this Court that strongly
suggests that we do.
First, the Supreme Court explicitly has held that state court
bar admissions and bar disciplinary decisions present "cases or
controversies" under Article III. In In re Summers, 325 U.S. 561,
568, 65 S.Ct. 1307, 1312, 89 L.Ed. 1795 (1945), the Supreme Court
held that it had jurisdiction to review a state supreme court's
denial of admission to that state bar because that denial involved
a case or controversy. The Court stated:
Where relief is thus sought in a state court against the
action of a committee, appointed to advise the court, and the
court takes cognizance of the complaint without requiring the
appearance of the committee or its members, we think the
consideration of the petition by the Supreme Court, the body
which has authority itself by its own act to give the relief
sought, makes the proceeding adversary in the sense of a true
case or controversy.
Id. at 567-68, 65 S.Ct. at 1311-12. The Court emphasized that
"[t]he form of the proceeding is not significant. It is the nature
and effect which is controlling." Id. at 567, 65 S.Ct. at 1311.
Similarly, in District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), the
Court held that a District of Columbia Court of Appeals order
rejecting an application for admission to the District of Columbia
bar was judicial in nature, thus making applicable the doctrine
that bars federal district court review of state court decisions.
The Court stated that "the proceedings before the District of
Columbia Court of Appeals involved a "judicial inquiry' in which
the court was called upon to investigate, declare, and enforce
"liabilities as they [stood] on present or past facts and under
laws supposed already to exist.' " Id. at 479, 103 S.Ct. at 1313
(alteration in original) (quoting Prentis v. Atlantic Coast Line
Co., 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908)); cf.
In re Palmisano, 70 F.3d 483 (7th Cir.1995) (stating that Feldman
"supplies the essential analysis" as to whether federal courts of
appeals have jurisdiction over district court disciplinary
actions).
Summers and Feldman are instructive in the present case, and
inform us that bar admissions, bar disciplinary actions, and
disbarments are essentially judicial in nature and thus present a
case or controversy under Article III. See Summers, 325 U.S. at
566-67, 65 S.Ct. at 1311 (1945) ("A case arises, within the meaning
of the Constitution, when any question respecting the Constitution,
treatise or laws of the United States has assumed "such a form that
the judicial power is capable of acting on it.' ").
It matters not that this case involves the disbarment of an
attorney instead of the denial of admission to a bar, or that this
case involves a federal bar rather than a state bar. The district
court's actions were as judicial in nature as those of the state
supreme court in Summers. Prior to ordering Calvo disbarred, the
district court judges met and considered Calvo's response to the
order to show cause. The district court had before it Calvo's
forty-six page description of the state court proceedings, various
briefs and memoranda he had filed in the state court proceedings,
a copy of the SEC's decision, a copy of the Florida Supreme Court's
decision, and a copy of Calvo's petition for writ of certiorari to
the United States Supreme Court.
That the district court did not conduct a hearing regarding
Calvo's disbarment does not mean it lacked jurisdiction. See,
e.g., Summers, 325 U.S. at 566-69, 65 S.Ct. at 1311-12 (assuming
jurisdiction over appeal from denial of admission even though no
hearing was held). Our jurisdictional inquiry concerns "the nature
and effect" of the proceeding, rather than its form. See id. at
567, 65 S.Ct. at 1311. Because the "nature and effect" of the
district court proceeding was to curtail Calvo's ability to
practice law in the district court, and because we are capable of
acting on Calvo's appeal, the district court's decision to disbar
him is justiciable under Article III. See, e.g., Ex Parte Burr, 22
U.S. (9 Wheat.) 529, 530, 6 L.Ed. 152 (1824) ("the profession of an
attorney is of great importance to an individual, and the
prosperity of his whole life may depend on its exercise").
Second, in addition to the Supreme Court cases that explicitly
hold that the Court has jurisdiction over appeals from state bar
admission and disciplinary decisions, the Supreme Court and this
Court have reviewed federal court bar admission and disciplinary
decisions on a number of occasions, which suggests that
jurisdiction over these types of appeals is proper despite the lack
of explicit holdings to that effect. In In re Snyder, 472 U.S.
634, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985), the Supreme Court
reviewed an order of the Eighth Circuit Court of Appeals suspending
an attorney for six months from practice in all courts of the
Eighth Circuit. The Court reversed the disbarment order on the
merits, stating that the facts, even as the district court
understood them, did "not support a finding of contemptuous or
contumacious conduct, or a finding that [the] lawyer is "not
presently fit to practice law in the federal courts.' " Id. at
647, 105 S.Ct. at 2882. The Court did not specifically address the
jurisdictional issue, and thus the case does not provide an
explicit holding on that issue. Even so, the fact that the Supreme
Court reviewed the order on the merits, without questioning its
jurisdiction, strongly suggests that it believed its jurisdiction
to be proper. See also In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222,
20 L.Ed.2d 117 (1968) (reversing disbarment from Sixth Circuit
without discussion of jurisdiction); Theard v. United States, 354
U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957) (remanding
disbarment from federal district court without discussion of
jurisdiction).
Similarly, this Court has reviewed numerous district court
orders regarding bar disciplinary matters. In Greer's Refuse
Serv., Inc. v. Browning-Ferris Indus., 843 F.2d 443 (11th Cir.),
cert. denied, 488 U.S. 967, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988)
("Wilkes III "),1 we affirmed the district court's suspension of an
attorney from practicing before it. Although Wilkes III, like
Snyder, did not explicitly address the jurisdictional question, our
review of the merits in that case suggests that we believed our
jurisdiction to be proper. See also In re Finkelstein, 901 F.2d
1560 (11th Cir.1990) (reversing the district court's order to
suspend an attorney for six months from practicing in that
district, without discussion of jurisdiction); In re Dawson, 609
F.2d 1139 (5th Cir.1980) (affirming the en banc order of the
district court, which had suspended an attorney from practice
before that district, without discussion of jurisdiction).
Two other courts of appeals recently have expressly held that
jurisdiction exists to decide an appeal of a federal disbarment
order. In re Palmisano, 70 F.3d 483, 484-85 (7th Cir.1995), cert.
denied, --- U.S. ----, 116 S.Ct. 1854, --- L.Ed.2d ---- (1996), and
In re Jacobs, 44 F.3d 84, 87-88 (2d Cir.1994), cert. denied, ---
U.S. ----, 116 S.Ct. 73, 133 L.Ed.2d 33 (1995), both presented
cases almost identical to the present one. In those cases, the
Seventh and Second Circuits, respectively, explicitly held that
courts of appeals have jurisdiction over appeals of federal
district court disbarment orders. But see Brooks v. Laws, 208 F.2d
18, 22-30 (D.C.Cir.1953) (holding that court of appeals lacks
jurisdiction over appeal from district court disbarment order).
1
Wilkes III was preceded by In re Wilkes, 494 F.2d 472 (5th
Cir.1974) ("Wilkes I ") and Greer's Refuse Serv., Inc. v.
Browning-Ferris Indus., 782 F.2d 918, 920 (11th Cir.1986)
("Wilkes II "), cert. denied, 488 U.S. 967, 109 S.Ct. 493, 102
L.Ed.2d 530 (1988).
These cases lead to one conclusion: Calvo's appeal presents
a justiciable "case or controversy." The Second Circuit aptly
summarized this jurisdictional issue in In re Jacobs—a case which
raised issues identical to this case:
The Supreme Court and circuit courts appear to have
concluded that while regulation of attorney behavior should
remain primarily within the discretion of each district court,
it is contrary to fundamental notions of fairness to close off
all avenues of review, even if only for the most glaring
irregularities.
44 F.3d at 88.
B.
Having held that this appeal is properly before us, we must
decide whether the district court's order to disbar Calvo was
proper. The Supreme Court has held that "disbarment by federal
courts does not automatically flow from disbarment by state
courts." Theard v. United States, 354 U.S. 278, 282, 77 S.Ct.
1274, 1276, 1 L.Ed.2d 1342 (1957). Even so, a state court
disbarment should be accorded federal effect, unless it appears
from an "intrinsic consideration" of the state record that: (1)
the state proceeding lacked due process; (2) the proof in the
state proceeding was so infirm "as to give rise to a clear
conviction on our part that we could not, consistently with our
duty, accept as final the conclusion" of the state court; or (3)
"some other grave reason existed which should convince us that to
allow the natural consequences of the judgment to have their effect
would conflict with the duty which rests upon us not to disbar
except upon the conviction that, under principles of right and
justice, we were constrained so to do." Selling v. Radford, 243
U.S. 46, 51, 37 S.Ct. 377, 379, 61 L.Ed. 585 (1917); see also
S.D.Fla. Rules Governing Attorney Discipline, Rule V.E. (requiring
Selling-based analysis in disbarment actions).
The burden is on the disbarred attorney to show good cause
why he should not be disbarred, and the district court is not
required "to conduct a de novo trial in the first instance of [the
attorney's] fitness to practice law." Wilkes III, 843 F.2d at 447.
Instead, it must determine whether "the record underlying the
predicate state disbarment ... reveal[s] the kind of infirmities
identified in Selling." Id. We review a district court's
disbarment order only for abuse of discretion. E.g., In re
Gouiran, 58 F.3d 54, 56 (2d Cir.1995) ("[W]e review the district
court's order disbarring [an attorney] for clear abuse of
discretion.").
In his response to the district court's order to show cause,
Calvo raised several arguments concerning alleged defects in the
Florida disbarment proceeding, including: (1) lack of notice that
the charges could lead to disbarment; (2) lack of proof of
misconduct because of (a) improper introduction of judgments of the
SEC and the District Court for the District of Connecticut, (b)
improper introduction of hearsay testimony, and (c) lack of
credibility of witnesses; (3) deprivation of right to counsel;
and (4) intervening change in the law.2
None of Calvo's arguments identify any of the three types of
infirmities that Selling identified. The first prong of Selling
concerns due process, which is narrowly defined, in this context,
2
Calvo made several other arguments in his response, all of
which we reject without further discussion.
as "want of notice or opportunity to be heard." Selling, 243 U.S.
at 51, 37 S.Ct. at 379. Calvo's challenges to the state court
proceeding, as argued in his response to the order to show cause,
do not raise that type of concern. His only challenge that even
remotely deals with the type of due process concerns that would
fall under the first prong of Selling is his contention that he
received inadequate notice of the Florida Bar's charges against
him, because he was not informed in advance of the hearing that he
might be disbarred. However, the published Florida Standards for
Imposing Lawyer Sanctions, Standard 5.11(f), expressly state that
disbarment is appropriate when "a lawyer engages in any other
intentional conduct involving dishonesty, fraud, deceit, or
misrepresentation that seriously adversely reflects on the lawyer's
fitness to practice." Calvo certainly knew about his misconduct,
which the SEC had found to be in direct violation of the Securities
Act and its rules, before the hearing, and should have known about
the Florida Standards. Accordingly, his due process contention is
without merit.
Under the second prong of Selling, which concerns the
sufficiency of the state court's proof, Calvo argues that the
Florida proceedings suffered from an infirmity of proof because the
referee permitted hearsay testimony, considered the judgments in
the SEC actions, and allowed the testimony of witnesses who lacked
credibility. Disbarment proceedings are not criminal proceedings,
and relaxed rules of evidence apply. For example, in The Florida
Bar v. Vannier, 498 So.2d 896, 898 (Fla.1986), the Florida Supreme
Court held that, "[i]n bar discipline cases, hearsay is admissible
and there is no right to confront witnesses face to face. The
referee is not barred by technical rules of evidence." We cannot
say that the district court erred in finding that there was such a
lack of proof in the state disbarment proceeding as to bar the
federal court from giving federal effect to the state court's
order.
Under the third prong of Selling, which considers whether
disbarment is improper "under the principles of right and justice,"
Calvo makes several contentions. First, he contends that he was
deprived of counsel at the disbarment hearing, and that that
constitutes the type of "grave reason" that should have convinced
the district court not to follow the state court's conclusion.
Calvo argues that he was deprived of his right to counsel because
the Florida Bar referee disqualified one of his attorneys, after
that attorney was designated as a potential rebuttal witness for
the Florida Bar. Even if true, that allegation does not amount to
the type of grave injustice to which the third prong of Selling
refers. Calvo concedes that he was represented by another
attorney; he was not without counsel at the hearing. And even if
he had not been represented, Calvo fails to demonstrate that he had
a right to counsel at the hearing. See, e.g., Lassiter v. Dep't of
Social Servs., 452 U.S. 18, 25, 101 S.Ct. 2153, 2158, 68 L.Ed.2d
640 (1981) (stating that right to appointed counsel "has been
recognized to exist only where the litigant may lose his physical
liberty if he loses the litigation").
Second, Calvo contends that the district court should not
have followed Florida's disbarment order, because there was an
intervening change in the law regarding securities fraud, which
came after Florida disbarred Calvo and before the district court
disbarred him. He argues that the Supreme Court's decision in
Cent. Bank v. First Interstate Bank, 511 U.S. 164, 114 S.Ct. 1439,
128 L.Ed.2d 119 (1994), eradicated the predicate liability on which
his Florida disbarment was based, because that decision held that
the Securities Act would not support a private civil lawsuit for
aiding and abetting. Be that as it may, Calvo still violated the
Securities Act, as the SEC held. Moreover, the district court's
disbarment order was based upon its overall conclusion that Calvo
had "engag[ed] in conduct that adversely reflect[ed] on his fitness
to practice law," Fla.Disciplinary Rule 1-102(A)(6). Neither that
standard, nor disbarment generally, requires that the attorney have
committed an act subjecting him to civil or criminal liability.
III. CONCLUSION
We conclude that this appeal is justiciable because the
district court's disbarment order constitutes a case or controversy
under Article III. Although "disbarment by federal courts does not
automatically flow from disbarment by state courts," Theard, 354
U.S. at 282, 77 S.Ct. at 1276, Calvo has failed to convince us that
the district court should not have given federal effect to the
state court's disbarment order. Accordingly, we AFFIRM the
district court's order.