F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 4 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
In re: C. RABON MARTIN,
Appellant. No. 03-5204
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 00-AP-1-K)
Submitted on appellant’s brief:
C. Rabon Martin, Pro Se, Tulsa, Oklahoma, for Appellant.
Before TACHA, Chief Circuit Judge, HENRY, and O’BRIEN, Circuit Judges.
TACHA, Chief Circuit Judge.
Appellant C. Rabon Martin, an attorney appearing pro se, appeals the order
entered by the district court on November 25, 2003 denying his supplemented
application for reinstatement to the bar of the United States District Court for the
Northern District of Oklahoma. Our jurisdiction arises under 28 U.S.C. § 1291.
We affirm. *
I.
In September 1997, this court suspended Mr. Martin from practicing before
it for one year and one day. See Aplt. App., Tab 1 at 1. In February 1999, as a
result of the suspension by this court, the district court suspended Mr. Martin
from practicing in the Northern District of Oklahoma. See Aplt. App., Tab 2
at 1-2; N.D. LR 83.3(G) (providing that “[a]ny member of the bar of [the district
court] . . . suspended from practice in any court of competent jurisdiction, shall be
suspended automatically from practice in [the district court]”).
In April 1999, the district court entered an order reinstating Mr. Martin “to
practice in the . . . Northern District of Oklahoma, on probationary status for one
year.” Aplt. App., Tab 2 at 3. At that time, Mr. Martin had already served his
suspension in this court, and he had been reinstated to practice in this court with a
one year probationary period. Id. , Tab 1 at 4.
Subsequently, Mr. Martin once again ran into problems with regard to his
activities in this court. As a result, on July 6, 1999, this court entered an order
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously to grant appellant’s request for a decision without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
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directing Mr. Martin to show cause why he should not be suspended from
practicing in this court “for his failure to abide by the rules of this court.” Id. ,
Tab 3 at 2. In the response that he filed to the show cause order, Mr. Martin did
not attempt to show cause why he should not be suspended from practicing in this
court. Instead, Mr. Martin “acknowledge[d] that, once again, he ha[d] overlooked
one or more applicable rules of this [court],” id. , Tab 4 at 1, and he requested that
he be allowed to resign from the bar of this court, id. On July 30, 1999, this court
accepted Mr. Martin’s resignation from its bar. Id. , Tab 5 at 2.
After Mr. Martin resigned from the bar of this court, the district court
entered an order disbarring him from practicing before it. Id. , Tab 6. The
disbarment order was entered pursuant to N.D. LR 83.3(H), which provides that
“an attorney of [the district court’s] bar who is under investigation for misconduct
. . . in any court of competent jurisdiction, who resigns from the bar of the
investigating jurisdiction, . . . shall forthwith be disbarred from practicing in [the
district court].” On January 12, 2000, in response to a motion to reconsider that
was filed by Mr. Martin, the district court entered an order rescinding the
disbarment order, and the court instead ordered that “Mr. Martin is suspended,
rather than disbarred, from practice before the . . . Northern District of
Oklahoma.” Aplt. App., Tab 8 at 2. The court further ordered that “Mr. Martin
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may apply for reinstatement . . . no sooner than two years from December 10,
1999.” Id.
On April 18, 2002, Mr. Martin filed an application to be reinstated to the
bar of the Northern District of Oklahoma. Id. , Tab 9. On July 12, 2002, the
district court entered an order denying Mr. Martin’s application for reinstatement.
The court denied the application because it found that Mr. Martin had violated the
January 12, 2000 suspension order by continuing to represent clients in cases
pending in the Northern District of Oklahoma. Id. , Tab 10 at 2-7. Mr. Martin did
not file an appeal in this court regarding the July 12, 2002 order.
On December 18, 2002, Mr. Martin filed a pleading in the district court
entitled “Resubmission Of Supplemented Application For Reinstatement”
(supplemented application). Id. , Tab 11. As summarized by the district court, in
his supplemented application, Mr. Martin argued that “the activities which he has
undertaken during his suspension do not require admission to the bar of the
Northern District of Oklahoma, e.g., he has neither personally appeared in court
nor signed pleadings . . . . Rather, he has only performed tasks which a legal
assistant could have performed.” Id. , Tab 14 at 3.
The district court subsequently set Mr. Martin’s supplemented application
for a hearing before a three-judge panel. In response to the hearing setting,
Mr. Martin filed a pleading in the district court entitled “Request For
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Clarification And, As Appropriate, Notice” (request for clarification), requesting
that
he be afforded due process, consisting of written notification, in
advance of the “hearing,” apprizing [him] of any and all allegations
which might be brought against him, and which will be litigated at
such hearing, in order to afford [him] a fair opportunity to prepare to
meet said allegations, and to garner witnesses and/or exhibits to
present in opposition to any such allegations.
Id. , Tab 13 at 1. Although the district court did not formally rule on Mr. Martin’s
request for clarification, the court implicitly denied the request because it did not
provide Mr. Martin with any further notice regarding the hearing on the
supplemented application.
The hearing on Mr. Martin’s supplemented application took place on
August 27, 2003 before the Honorable Terence C. Kern (the Chief Judge of the
Northern District of Oklahoma at the time), the Honorable Clair V. Eagan, and the
Honorable James H. Payne (the panel). See Supplemental R., Vol. II. During the
hearing, the panel questioned Mr. Martin regarding the work that he had
performed in cases pending in the Northern District of Oklahoma since his
suspension in January 2000. As summarized by the panel during the hearing,
Mr. Martin’s global response to the panel’s questioning was that he believed “that
[he was] allowed to do anything that a legal assistant could do which basically
allowed [him] to participate in fees and help with the work as long as [he] didn’t
make an actual appearance in federal court or sign a pleading.” Id. at 23. But
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Mr. Martin also testified that: (1) while he referred all Northern District of
Oklahoma cases to supervising attorneys who were admitted to practice in that
court, he nonetheless shared or split the attorney’s fees that were paid to those
attorneys, id. at 4-5, 15-16; and (2) he participated in client interviews, id. at 3-4.
On November 25, 2003, the panel entered an order denying Mr. Martin’s
supplemented application, concluding that he had violated the January 12, 2000
suspension order by “continu[ing] to perform tasks that constituted the practice of
law in matters that he knew would, or currently did, fall within the jurisdiction of
the Northern District.” Aplt. App., Tab 14 at 6. The panel also found that, “[i]n
a number of cases, Mr. Martin took monies in exchange for his work in the form
of an attorney fee. The fees that he received were not allocated on an hourly
basis but on a percentage or proportionate basis wherein he received a share of
the fee from the attorney to whom he referred the matter.” Id. (citations omitted).
Consequently, according to the panel, “Mr. Martin, in the capacity of attorney ,
continued to profit from cases in the Northern District.” Id. at 7.
Mr. Martin is now appealing the November 25, 2003 order, arguing: (1)
that the district court deprived him of procedural due process; (2) that the
constraints imposed by his suspension cannot exceed the scope of the privileges
conferred by his initial admission to the bar of the Northern District of Oklahoma;
and (3) that the district court erred by failing to consider his good faith. For the
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reasons set forth below, we reject each of Mr. Martin’s arguments, and we affirm
the district court’s denial of his supplemented application.
II.
1. Subject Matter Jurisdiction and Standard of Review.
In Mattox v. Disciplinary Panel of the United States Dist. Court for the
Dist. of Colorado , 758 F.2d 1362 (10th Cir. 1985), this court reversed an order of
a district court that denied a suspended attorney’s application for readmission to
the bar of the district court, concluding that the district court had violated the
attorney’s right to procedural due process by failing to “give notice and the
reasons for its view before its decision [was] final, and [by failing to] give the
[attorney] an opportunity to respond.” Id. at 1369. Based on Mattox , it would
appear that this court has subject matter jurisdiction over this appeal. We note,
however, that Mattox did not specifically address the issue of whether this court
has subject matter jurisdiction to review district court readmission orders in cases
involving suspended attorneys. As a result, before proceeding to the merits of
Mr. Martin’s appeal, we need to address the issue of subject matter jurisdiction.
The Ninth Circuit has recently stated that “[o]rdinarily, appellate
jurisdiction to review an order by the District Court denying admission to practice
generally before it is lacking because the denial of a petition for admission to a
district court bar is neither a final order appealable under 28 U.S.C. § 1291 . . .
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nor an interlocutory order appealable under 28 U.S.C. § 1292.” In re North , 383
F.3d 871, 874 (9th Cir. 2004) (quotation omitted). In this case, however, we do
not need to decide whether this court has subject matter jurisdiction to review “an
order by the district court denying admission to practice.” Id. Rather, this case
involves the much easier issue of whether we have jurisdiction to review the
denial of a suspended attorney’s application to be readmitted to the bar of a
district court where the denial is based on a finding that the attorney had violated
the terms of the suspension. In effect, this case thus involves a suspension order,
or, more precisely, an order continuing a suspension. Accordingly, we hold that
this case falls within the well-established rule that the federal circuit courts have
subject matter jurisdiction “to review orders suspending or disbarring attorneys
from practicing before the bars of federal district courts.” Id. ; accord In re
Surrick , 338 F.3d 224, 229 (3d Cir. 2003) (holding that a district court order
suspending an attorney from the district court’s bar was a final order for purposes
of 28 U.S.C. § 1291); In re Calvo , 88 F.3d 962, 964-66 (11th Cir. 1996) (holding
that an appeal from a district court disbarment order presented a justiciable case
or controversy); In re Palmisano , 70 F.3d 483, 484-85 (7th Cir. 1995) (same); In
re Jacobs , 44 F.3d 84, 87-88 (2d Cir. 1994) (holding that circuit court had
jurisdiction to review order of federal grievance committee that suspended an
attorney from practicing in a district court); see also In re Snyder , 472 U.S. 634,
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643 n.4 (1985) (noting that a district court suspension order “would be subject to
review by the Court of Appeals”).
As for the standard of review, we review the district court’s decision to
continue Mr. Martin’s suspension for an abuse of discretion. See Surrick, 338
F.3d at 229; Jacobs , 44 F.3d at 88; cf. Butler v. Biocore Med. Techs., Inc. , 348
F.3d 1163, 1169 (10th Cir. 2003) (stating that “[w]e review for abuse of
discretion all aspects of a trial court’s imposition of sanctions for rules
violations,” and that “[t]he trial court’s factual findings regarding the conduct of
attorneys will not be disturbed unless there is no reasonable basis to support those
conclusions”) (quotation omitted). But our review is not constrained with respect
to legal issues, and “our review of the District Court’s interpretation of legal
precepts is plenary.” Surrick , 338 F.3d at 229.
2. Procedural Due Process Claim.
As noted above, in Mattox , we held that a federal district court violated a
suspended attorney’s right to procedural due process when it denied her
application for readmission to the bar of the court without giving her prior notice
of the reasons for the denial and an opportunity to respond. See Mattox , 758 F.2d
at 1368-69; cf. G.J.B. & Assocs., Inc. v. Singleton , 913 F.2d 824, 830 (10th Cir.
1990) (“The due process clause of the fifth amendment . . . requires that an
attorney facing sanctions in federal court be given notice and an opportunity to be
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heard before final judgment.”). In light of Mattox , we believe the district court
may have violated Mr. Martin’s right to procedural due process when it entered
the July 12, 2002 order denying his initial application for reinstatement, as the
court did not give Mr. Martin any prior notice of the reasons for the denial or an
opportunity to respond. Mr. Martin did not appeal the July 12, 2002 order,
however, and the only order at issue in this appeal is the order entered by the
panel on November 25, 2003 denying the supplemented application for
reinstatement. Consequently, Mr. Martin’s procedural due process claim is
limited to the November 25, 2003 order. 1
Prior to entering the November 25, 2003 order, the panel did not explicitly
provide Mr. Martin with notice of the reasons for the decision to deny his
supplemented application. Nonetheless, we conclude that Mr. Martin had
sufficient prior notice and an opportunity to respond before the panel entered its
order. As a result, the panel did not violate Mr. Martin’s right to procedural due
process when it denied his supplemented application.
1
Although “[a]n appeal from a final judgment usually draws into question all
prior non final orders and all rulings which produced the judgment,” McBride v.
CITCO Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir. 2002) (quotation
omitted), this rule does not apply to the district court’s July 12, 2002 order
because that order was itself a final judgment.
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To begin with, by Mr. Martin’s own admission,
[u]pon receiving the [July 12, 2002] order denying re-
admission, Appellant reviewed each of the accusations, prepared his
defense and responded thereto. A “Supplemented and Resubmitted”
Application for Reinstatement was used as the vehicle for presenting
Appellant’s defense[.]
The “Supplemented and Resubmitted” Application for
Reinstatement responded to each of the accusations inherent in the
findings set forth in the initial order denying reinstatement, showing
each to be without merit.
Aplt. Br. at 11. Thus, by filing the supplemented application, Mr. Martin had an
opportunity to respond to all of the charges in the July 12, 2002 order.
In addition, as set forth above, after Mr. Martin submitted his supplemented
application, a hearing was held before the panel. The hearing provided Mr.
Martin with yet another opportunity to explain why he had not violated the
January 12, 2000 suspension order. Based on the questions that were posed by
the panel during the hearing, it was also unmistakably clear that the panel’s
concern with regard to the supplemented application was that Mr. Martin had
engaged in post-suspension conduct in cases pending in the Northern District of
Oklahoma that was inconsistent with his claim that he had acted only as a legal
assistant or law clerk. See Supplemental R., Vol. II at 3-23. As a result,
Mr. Martin’s claim that he did not have sufficient prior notice of the reasons for
the panel’s decision to deny the supplemented application is without merit. To
the contrary, the panel’s concerns were amply revealed at the hearing, and Mr.
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Martin had a full and fair opportunity to respond to those concerns during the
hearing. Id. at 23-27.
We also note that, despite the request for clarification that he had filed
before the hearing, Mr. Martin did not assert a single objection at the hearing to
the effect that he was unprepared or unable to respond to the panel’s questions
due to a lack of prior notice regarding the topics that were to be explored at the
hearing. We therefore conclude that Mr. Martin’s right to procedural due process
was not violated.
3. Mr. Martin’s Conduct While Under Suspension.
This case raises the issue of whether an attorney who is suspended from
practicing in a district court may assist another attorney in a case pending in that
court, so long as the suspended attorney functions only as a legal assistant or a
law clerk. This is an issue of first impression in this circuit. In the November 25,
2003 order, the panel relied on the Third Circuit’s decision in In re Mitchell , 901
F.2d 1179 (3d Cir. 1990) to support its finding that Mr. Martin had violated the
January 12, 2000 suspension order by continuing to practice law in the Northern
District of Oklahoma. See Aplt. App., Tab 14 at 4-5. Like the panel, we also
adopt the reasoning of Mitchell for purposes of resolving the attorney suspension
issues that are raised by this case.
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Mitchell involved an attorney who had been suspended by the Third Circuit
from practicing before it, and the case raised “the question of to what extent, if
any, an attorney suspended from practice before [a circuit court] may assist
another attorney in a case before [that court], effectively functioning as a law
clerk or paralegal.” Mitchell , 901 F.2d at 1185. Mitchell is equally instructive
for purposes of analyzing a district court suspension, however, and it has been
followed in that context by at least one other circuit court. See Cooper v. Texaco,
Inc. , 961 F.2d 71, 72-73 (5th Cir. 1992).
In Mitchell , the court began its analysis by noting that “a number of
jurisdictions permit suspended attorneys to act as law clerks, on condition that
they have no contact with clients or courts.” Mitchell , 901 F.2d at 1185. Relying
on a decision of the Florida Supreme Court, the court pointed out that the
rationale for this practice is that the “[e]mployment of [the suspended attorney] in
a supervised status within the profession [is] . . . an almost ideal manner in which
he may demonstrate during his suspension his potential for rehabilitation and
maintain his competency to practice law upon reinstatement.” Id. (quoting The
Florida Bar v. Thomson , 310 So. 2d 300, 302 (Fla. 1975)). The court then
proceeded to adopt the approach of the majority of jurisdictions, concluding as
follows:
We will follow the majority of jurisdictions, and will permit a
suspended attorney to work as a law clerk, with respect to matters in
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this court with no contact with clients or the court, under the close
supervision of an attorney who is admitted to practice before us. We
agree with the Florida Supreme Court that this process would
contribute to the rehabilitation of the suspended attorney, and we are
satisfied that both the public and the court will be adequately
protected by the restrictions on the suspended attorney’s activities,
and the fact that the attorney in good standing will be responsible for
close supervision. . . . Of course, the admitted attorney cannot share
his or her fee with the suspended attorney, any more than he or she
could share the fee with a layman .
Id. at 1185-86 (emphasis added) (footnote omitted).
Applying Mitchell to the circumstances in this case, we conclude that the
panel did not abuse its discretion when it found that Mr. Martin had continued to
practice law in the Northern District of Oklahoma despite his suspension, and we
reach this conclusion for two reasons. First, Mr. Martin testified at the hearing
before the panel that, while he referred all Northern District of Oklahoma cases to
supervising attorneys who were admitted to practice in that court, he nonetheless
shared or split the attorney’s fees that were paid to those attorneys. See
Supplemental R., Vol. II at 4-5. In fact, in some of the cases he may have
received one half of the total fee. Id. at 15-16. Second, Mr. Martin testified that
he participated in client interviews. Id. at 3-4. As noted by the panel, “[c]lient
contact was specifically prohibited by the Mitchell court,” Aplt. App.,
Tab 14 at 7 n.5, and we agree with the Third Circuit that a suspended attorney
should not be permitted to have contact with clients. Moreover, even if we were
to conclude that there may be special circumstances when a suspended attorney
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should be permitted to have limited contact with clients, Mr. Martin has failed to
advance any convincing reasons for allowing client contact with regard to his
suspension.
Finally, we reject Mr. Martin’s argument that the panel erred by failing to
consider his good faith efforts to reconfigure his practice to comply with the
“parameters” set forth by the Oklahoma Supreme Court in Taylor v. Chubb Group
of Ins. Cos. , 874 P.2d 806 (Okla. 1994). See Aplt. Br. at 24. Taylor addressed
the issue of whether a reference in an Oklahoma statute to “attorneys fees”
included fees for services performed by legal assistants. Id. at 807. Although
tangentially relevant, Taylor provides no meaningful guidance with regard to the
suspension issues in this case. As a result, to the extent Mr. Martin was relying
on Taylor , his reliance was misplaced.
We AFFIRM the district court’s November 25, 2003 order. We also
GRANT the “Application for Leave to Supplement Briefing” that Mr. Martin filed
on February 14, 2005.
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