United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-3400
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In re: R. S. McCullough; * Appeal from the United States
Darrell F. Brown, Sr., * District Court for the
* Eastern District of Arkansas.
Appellants. * [PUBLISHED]
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Submitted: June 11, 2012
Filed: August 17, 2012
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Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
The Supreme Court of Arkansas issued Orders of Disbarment terminating the
licenses of Reginald S. McCullough and Darrell F. Brown, Sr., to practice law in the
State of Arkansas. Chief Judge J. Leon Holmes of the United States District Court
for the Eastern District of Arkansas then issued orders pursuant to the District’s
Model Federal Rules of Discipline Enforcement directing McCullough and Brown
to show cause why the district court “should not impose the identical discipline as
that imposed by the State of Arkansas.” In a joint response, McCullough and Brown
argued the state proceedings “were devoid of real due and equal process,” were
arbitrary and capricious, and “applied questionable rules in a racially discriminatory
and impermissible fashion.” Subsequent letters to Chief Judge Holmes and a clerk
of court made it clear that McCullough and Brown expected the court to hold an
evidentiary hearing on the question of reciprocal discipline. Instead, the court issued
disbarment orders reciting that it had reviewed the response and concluding:
Pursuant to RULE II.D of the Model Federal Rules of Discipline
Enforcement, the Court has determined that the discipline imposed by
the Supreme Court of Arkansas should also be imposed by this Court.
McCullough and Brown appeal the district court’s disbarment orders, arguing
the court erred in not following our directive that “the district court shall conduct a
hearing if the accused attorney wishes to dispute facts or to be heard in mitigation.”
In re Bird, 353 F.3d 636, 638 (8th Cir. 2003). This contention is without merit. Rule
II of the District’s Model Rules governs proceedings to determine whether an
attorney licensed to practice before the district court who has been disciplined by any
other federal or state court should have the same discipline imposed by the district
court. Rule II.D provides that, after giving the attorney opportunity to respond as
provided in Rule II.B, the court “shall impose the identical discipline” unless the
attorney demonstrates or the court finds that, “upon the face of the record upon which
the discipline was imposed,” the procedure was lacking in due process, there was a
clear “infirmity of proof establishing the misconduct,” imposition of the same
discipline would result in grave injustice, or the misconduct “warrant[s] substantially
different discipline.” No hearing is mandated before this Rule II.D determination.
Bird, on the other hand, involved a district court proceeding under Rule V,
which governs disciplinary complaints where “the applicable procedure is not
otherwise mandated by these Rules.” Rule V.A provides that the district judge “shall
refer the matter to counsel for investigation.” If counsel recommends and the court
initiates formal disciplinary proceedings, and if the attorney in response raises an
issue of fact or wishes to be heard in mitigation, Rule V.D provides that the court
“shall set the matter for prompt hearing” before one or a panel of three judges. It is
appropriate to mandate a hearing in Rule V proceedings “where the lawyer has not
enjoyed the safeguards in prior proceedings and his misconduct necessarily comes to
the attention of the court as a complaint.” 353 F.3d at 640 (Bye, J., dissenting on
other grounds).
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In this case, McCullough and Brown provide no basis for us to determine on
the face of the record in the state court proceedings that the district court erred in not
holding an evidentiary hearing before making its reciprocal discipline determination.
Indeed, they did not even include in the record on appeal the Supreme Court of
Arkansas Orders of Disbarment and underlying state court records. “Due process
does not require relitigation of valid prior judgments.” In re Caranchini, 160 F.3d
420, 424 (8th Cir. 1998). As McCullough and Brown have not demonstrated that the
district court failed to properly apply Rule II.D of its Model Rules, the district court
orders imposing reciprocal discipline must be affirmed.
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