United States Court of Appeals
For the First Circuit
No. 03-8015
IN RE: CHARLES G. WILLIAMS III,
Respondent.
ON ORDER TO SHOW CAUSE WHY RECIPROCAL
DISCIPLINE SHOULD NOT BE IMPOSED
Before
Selya, Lynch and Lipez,
Circuit Judges.
Charles G. Williams III on memorandum for respondent.
February 16, 2005
Per Curiam. In April of 2004, the Maine Supreme Judicial
Court ordered Charles G. Williams III disbarred from the practice
of law. According to the court's order, the evidence "established
a pattern of client neglect, excessive fees, incompetency,
unauthorized disclosure of financial information, failure to
respond to orders of the Fee Arbitration Commission, and failure to
respond to inquiries from Bar Counsel." Following that disbarment,
this court issued an order to show cause why Williams should not be
reciprocally disbarred. See Fed. R. App. P. 46(b)(2). The
respondent attorney sought and was granted a hearing, Fed. R. App.
P. 46(c), but thereafter failed to appear on the appointed date.
We now order that he be disbarred from practice before this court.
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). An attorney
who has been so disciplined must promptly inform this court of the
disciplinary action. 1st Cir. R. Att'y Disciplinary Enforcement
(Discip. R.) II.A. Upon receiving official notice of such
discipline, the Chief Judge will refer the matter to a disciplinary
panel appointed by him or her. Discip. R. II.B, V.A. The clerk of
the court then serves the respondent attorney, personally or by
certified or registered mail, with an order to show cause why
substantially similar discipline should not be imposed. Discip. R.
II.B.2. The order must contain a statement informing the
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respondent attorney that any forthcoming request for hearing on the
question of reciprocal discipline shall be made within thirty days
after service of the order. Id.
In the absence of a response, the disciplinary panel will
impose discipline substantially similar to that imposed by the
original court. Discip. R. II.C. If, however, a response is
filed, the disciplinary panel will consider whether the respondent
has demonstrated extenuating circumstances that warrant sanctions
different from those imposed by the original court. Id. If a
hearing is requested, that consideration will take place after the
hearing. Id.
Where, as here, action against an attorney is based on
the imposition of discipline by a state court, the ultimate
decision of the state court as to the type and kind of discipline
meted out is "not conclusively binding" on this court. In re
Ruffalo, 390 U.S. 544, 547 (1968). Nevertheless, this court is
without jurisdiction, in a federal disciplinary proceeding, to
disturb the state court's imposition of discipline, see D.C. Court
of Appeals v. Feldman, 460 U.S. 462, 485-86 (1982); Rooker v.
Fidelity Trust Co., 263 U.S. 413, 415-16 (1923), and the state
court's substantive findings ordinarily are entitled to a high
degree of respect when this court is asked to impose reciprocal
discipline, see, e.g., Theard v. United States, 354 U.S. 278, 282
(1957); Gadda v. Ashcroft, 377 F.3d 934, 943 (9th Cir.), cert.
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denied, 125 S. Ct. 275 (2004); In re Surrick, 338 F.3d 224, 231 (3d
Cir. 2003); cert. denied, 540 U.S. 1219 (2004); In re Hoare, 155
F.3d 937, 940 (8th Cir. 1998).
To accomplish its task, this court will undertake an
"intrinsic consideration of the state record." Selling v. Radford,
243 U.S. 46, 51 (1917). Given that approach, "the record of prior
disciplinary proceedings . . . [is] of substantial relevance in
determining whether an attorney should be disbarred from practice."
In re Cordova-Gonzalez, 996 F.2d 1334, 1336-37 (1st Cir. 1993)
(quoting In re Evans, 834 F.2d 90, 91 (4th Cir. 1987)). It is the
burden of the respondent attorney to ensure that this 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. See Fed. R. App. P.
28(a)(9)(A), Fed R. App. P. 28(e); see generally Discip. R. V.B
(directing the respondent attorney to specify the basis on which
any controverted facts are disputed).
As a general rule, discipline similar to that imposed in
the state court will be imposed in a reciprocal proceeding.
Exceptions may arise if this court finds (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
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serious impediment to acceptance of the state court's conclusion.
Selling, 243 U.S. at 51. This framework has been memorialized in
Discip. R. II.C, which provides that, in reciprocal disciplinary
matters, the panel will 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
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.
In addition to considering the state court record, this
court will ordinarily afford the respondent attorney a hearing, if
requested. In exceptional circumstances (and upon a proper
showing), an evidentiary hearing may be granted in the panel's sole
discretion. In the usual case, the hearing will be on the papers,
supplemented by oral argument addressed to the respondent
attorney's specific challenges to the conduct and outcome of the
state proceedings. See In re Jaffree, 759 F.2d 604, 605 n.1 (7th
Cir. 1985). The purpose of the hearing is not to afford the
respondent attorney "an opportunity to retry the state case," id.,
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but, rather, to afford him an opportunity to explain his position
more lucidly to the disciplinary panel.
When all is said and done, the respondent attorney must
carry the devoir of persuasion, by clear and convincing evidence,
that imposition of reciprocal discipline is unwarranted. Surrick,
338 F.3d at 232; In re Kramer, 282 F.3d 721, 724 (9th Cir. 2002);
In re Friedman, 51 F.3d 20, 22 (2d Cir. 1995). Given 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. See Hoare, 155 F.3d at 940.
In the case at hand, the show-cause order satisfied all
applicable requirements, including those enumerated above. The
respondent attorney filed a reply and requested a hearing. He then
waived that request by his failure to appear.
We have nonetheless examined his response with care. The
only cognizable infirmity that he alleges is that the State of
Maine denied him due process.1 In this context, however, due
process concerns are limited to "want of notice or opportunity to
be heard." Selling, 243 U.S. at 51. The respondent has proffered
no credible evidence that the notice actually given was
inappropriate or that the state did not afford him a
1
The respondent attorney's other claims are forfeit because he
has failed to supply this court, despite several requests, with
material portions of the record of the state court disciplinary
proceeding.
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constitutionally sufficient opportunity to be heard. Thus, his due
process claim fails.
We need go no further. Cause not having been shown, we
are constrained to impose upon the respondent reciprocal discipline
substantially similar to that imposed by the Maine Supreme Judicial
Court. Accordingly, Attorney Charles G. Williams III is hereby
disbarred from the practice of law before this court.
So Ordered.
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