United States Court of Appeals
For the First Circuit
Nos. 07-8017
07-2065
IN RE: ALEXANDER ZENO,
Appellant, Respondent.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Lynch and Howard,
Circuit Judges.
Alexander Zeno on brief pro se.
September 27, 2007
Per Curiam. Before us are two attorney-discipline
matters involving Attorney Alexander Zeno, which have been
consolidated for consideration. The first involves an appeal by
Zeno from a disciplinary order imposed by the United States
District Court for the District of Puerto Rico. A five-judge
panel, citing various incidents of alleged misconduct, imposed a
pair of penalties--suspending Zeno from the practice of law before
the district court for three months, and removing him from its
Criminal Justice Act (CJA) panel for the fifteen months remaining
in his present term. The second involves a reciprocal-discipline
proceeding initiated by this court, in which Zeno has responded to
an order to show cause why we should not impose similar sanctions.
Having scrutinized Zeno's submissions and heard oral argument, we
affirm the district court order and, in the reciprocal proceeding,
impose similar (although not identical) discipline.
I.
Although the district court's show-cause order set forth
two central charges against Zeno, its disciplinary decision ended
up focusing on one: what were deemed "disrespectful submissions"
made to the court.1 The district court listed numerous examples of
such conduct. These consisted of pleadings from a pair of cases
1
We agree with the district court that the disposition of
this first charge obviates the need to address the second, which
concerned Zeno's objections to the manner in which his CJA vouchers
had been processed.
-2-
that gave rise to the charges here, as well as those from other
cases that were included as background material. We see no need to
fully recount each of these incidents. One such submission--an
"informative motion" filed by Zeno in which he complained about
actions occurring at a status conference--provides a representative
example. Among other remarks, Zeno there asserted as follows:
[T]he Court, instead of seriously addressing the issues
presented to it, along with [the Assistant U.S. Attorney
(AUSA)], made a mockery of our request to safeguard the
constitutional rights of the Defendant ....
[T]he undersigned takes offense at [the AUSA's]
continuous unprofessional conduct. In particular, his
excessive and open[] laughing in court [at] our arguments
as if we were in the middle of a party making [j]okes.
We particularly resent that the Court sanctioned [the
AUSA's] disrespectful behavior by joining in the mockery
of the argument of the undersigned ....
This is not a laughing matter!... [T]his Court's
apparent bias in favor of the government does nothing to
help sharpen the system to produce the best of ... our
judicial system.
The Court has mocked the legal positions of the
undersigned now and in the past.
United States v. Ruiz-Marty, D.P.R. No. 06-111, Dkt. # 96, at 2-4.
Other filings included similarly intemperate and unsubstantiated
allegations that various judges were guilty of, inter alia,
dishonesty, partiality, stupidity, or possible criminality. The
district court determined that these outbursts reflected a "chronic
tendency" on Zeno's part to use "belligerent and insulting prose in
addressing members of this court," which amounted to a violation of
-3-
Rule 3.5(d) of the ABA Model Rules of Professional Conduct.2 That
provision bars a lawyer from "engag[ing] in conduct intended to
disrupt a tribunal"; the accompanying commentary cautions that
"[r]efraining from abusive or obstreperous conduct is a corollary
of the advocate's right to speak on behalf of litigants." Model
Rule 3.5(d), cmt. 4. What the record of Zeno's behavior
demonstrated, the district court concluded, was a pattern of
"disrespectful conduct disruptive of the judicial process."
"This court reviews a district court decision to impose
discipline for abuse of discretion." In re Franco, 410 F.3d 39, 40
(1st Cir. 2005) (per curiam). In turn, "[a]s a general rule,
discipline similar to that imposed in the [district] court will be
imposed in a reciprocal proceeding." In re Williams, 398 F.3d 116,
119 (1st Cir. 2005) (per curiam). An exception will arise only if
one of the four conditions set forth in Rule II.C of this court's
Rules of Attorney Disciplinary Enforcement--deprivation of due
process; infirmity of proof; threat of grave injustice; or need for
different discipline--is present. See, e.g., In re Kersey, 402
F.3d 217, 217-18 (1st Cir. 2005) (per curiam) (citing Selling v.
Radford, 243 U.S. 46, 51 (1917)); In re Williams, 398 F.3d at 119.
"[T]he respondent attorney must carry the devoir of persuasion, by
2
The Puerto Rico District Court has adopted these Model
Rules in its Local Rule 83.5(a).
-4-
clear and convincing evidence, that imposition of reciprocal
discipline is unwarranted." Id.
II.
We find no abuse of discretion on the part of the
district court here--either in its decision to impose discipline or
in its selection of sanctions. Zeno protests that his challenged
remarks, even if intemperate, were unworthy of censure. In his
view, the court overreacted by taking umbrage at appropriate
criticism concerning judicial administration and other matters of
public interest. We are unpersuaded. To be sure, judges are not
immune from "the slings and arrows that they insist other public
officials face." In re Palmisano, 70 F.3d 483, 487 (7th Cir. 1995);
accord, e.g., Craig v. Harney, 331 U.S. 367, 376 (1947) ("Judges
are supposed to be [persons] of fortitude, able to thrive in a
hardy climate."). This is true even with respect to criticism
voiced by attorneys, who "can play an important role in exposing
problems with the judicial system." Standing Comm. on Discip. v.
Yagman, 55 F.3d 1430, 1437 (9th Cir. 1995); see also U.S. Dist. Ct.
v. Sandlin, 12 F.3d 861, 866 (9th Cir. 1993) (a lawyer "does not
surrender his freedom of expression" once "admitted to the bar").
Nonetheless, "[i]t is unquestionable that in the
courtroom itself, during a judicial proceeding, whatever right to
-5-
'free speech' an attorney has is extremely circumscribed."3
Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071 (1991). While
"the line between legitimate criticism and insult can be a blurry
one," Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1331 (11th
Cir. 2002), we cannot fault the district court for concluding that
Zeno crossed that line--particularly given the repeated nature of
his unfounded accusations and the tone in which they were voiced.
See, e.g., In re Cordova-Gonzalez, 996 F.2d 1334, 1335-36 (1st
Cir. 1993) (per curiam) (noting that "[a]ttorneys have on a number
of occasions been disbarred" for "vitriolic and ... unfounded
personal assaults" on court and opposing counsel, and finding that
record supported conclusion that counsel's "abusive and
disrespectful language" violated ABA Model Rules); United States v.
Cooper, 872 F.2d 1, 3 (1st Cir. 1989) ("Nor may an attorney seek
refuge within his own First Amendment right of free speech to fill
a courtroom with a litany of speculative accusations and insults
which raise doubts as to a judge's impartiality."); cf. Sacher v.
United States, 343 U.S. 1, 9 (1952) ("if the ruling is adverse, it
is not counsel's right to resist it or to insult the judge--his
3
In what he deems an "extremely important" point, Zeno
asserts that his remarks in the Ruiz-Marty case, which we quoted
earlier, "were not part of any pending litigation" since he was "no
longer part of the case" when he filed the informative motion.
Brief at 11. He is mistaken. Although he had moved to withdraw on
that same day, he was not relieved of his duties until later. See,
e.g., Dkt. #s 111-13. By district court rule, "[a] defense
attorney in any criminal case shall continue the representation
until relieved by order of this court." D.P.R. Loc. R. 157.2(b).
-6-
right is only respectfully to preserve his point for appeal").
Zeno's reliance on In re Snyder, 472 U.S. 634 (1985), is misplaced,
since the conduct in question there involved at worst "a single
incident of rudeness." Id. at 647.
Also unavailing is Zeno's contention that the
disciplinary proceeding was marred by several procedural flaws. He
first objects to the denial of his request that five district court
judges recuse themselves. Yet the two judges who made the
disciplinary referrals against him had no further involvement in
the matter. Zeno has not sought to rebut the reasons enumerated by
the other judges in their order denying such relief. That the
author of the show-cause order also served on the disciplinary
panel is unremarkable. And Zeno has not otherwise provided a
developed argument on appeal as to why recusal was warranted.4 As
in Cordova-Gonzalez, "we see no reason to deem the judges' decision
to take part in the disciplinary proceedings an abuse of
discretion." 996 F.2d at 1336.
Zeno's other procedural complaints concern a lack of
discovery and a lack of "publicity." His requests were predicated
on another set of ABA model rules, which he has not shown to have
been adopted by the district court. In any event, the requested
discovery, as here relevant, was confined to contact information
4
An example of his cursory analysis is his contention that
"there is no basis to believe" that affidavits filed under 28
U.S.C. § 144 were legally insufficient. Brief at 27.
-7-
about persons attending the status conference--information largely
available to Zeno already. And not only has the disciplinary
decision now been made public, but Zeno has identified no prejudice
stemming from the fact that the proceeding was initially conducted
under seal.5
In his final appellate challenge, Zeno insists that, even
if some measure of discipline were warranted, the punishment
imposed by the district court was unduly harsh. This complaint is
directed at his removal from the CJA panel rather than his
suspension. Pointing out that his law practice has been almost
entirely confined to CJA appointments, Zeno protests that such a
sanction effectively amounts to disbarment. Yet "[s]election of
the sanction is a subject on which appellate review is
deferential." In re Palmisano, 70 F.3d at 488. Removal from the
CJA panel is hardly unprecedented in this context, see, e.g.,
United States v. Halliburton, 2000 WL 968021, at *2 (7th Cir. 2000)
("it seems to us imprudent to continue appointing Noll under the
Criminal Justice Act, a step that would imply satisfaction with his
services in that capacity"); In re Suspension of Att'y Jo Ann
Fulton, 445 F. Supp. 2d 1325, 1326 (D. Wyo. 2006) (describing Tenth
Circuit order), and we cannot fault the district court for
considering such a sanction appropriate here. Zeno remains free to
5
An additional procedural argument--that Zeno was entitled
to an evidentiary hearing--was made informally below but has not
been pursued on appeal.
-8-
represent private clients and to apply for reinstatement to the CJA
panel in the future.6
III.
The foregoing discussion largely suffices to resolve the
reciprocal proceeding in this court. See, e.g., In re Cordova-
Gonzalez, 996 F.2d at 1336 (noting that result of original
disciplinary proceeding is of "substantial relevance" in
determining result of reciprocal proceeding) (internal quotation
marks omitted). We have little difficulty in concluding that Zeno
has failed to establish by clear and convincing evidence that
"imposition of reciprocal discipline is unwarranted." In re
Williams, 398 F.3d at 119. With respect to the appropriate
sanction, it turns out that one key issue has already been
determined: through a coincidence of timing, Zeno's application for
reappointment to this court's CJA panel has recently been denied,
for reasons unconnected to the instant disciplinary matters. We
add that, even had that development not occurred, Zeno has failed
to establish that his removal from the panel would have been
inappropriate under the standards governing reciprocal discipline.
Beyond this, and despite his lack of remorse, we choose
not to suspend Zeno from the practice of law before this court.
6
Contrary to Zeno's suggestion, we see nothing irrational or
malicious in the decision to restrict his CJA appointments but to
allow his continued representation of paying customers. Indigent
defendants, of course, have less freedom of choice with respect to
selection and retention of counsel.
-9-
The disciplinary findings, of course, did not involve his conduct
on appeal. Moreover, Zeno currently has (by our count) nine CJA
cases pending before this court, in various stages of preparation.7
We think that what little purpose would be served by a further
suspension would be outweighed by the resulting inconvenience to
his clients and this court. Zeno may thus continue his
representation in those pending appeals. Accord Halliburton, 2000
WL 968021, at * 2 (removing attorney from CJA panel but not from
existing CJA cases). Should he receive any further CJA
appointments before his panel membership ends, he may appear in
those cases as well. And he may at all times represent private
clients on appeal. But once his CJA term expires, he will be
barred from appearing in this court in new CJA cases unless and
until he is reinstated to the panel.
The decision of the district court is affirmed. The
reciprocal-discipline proceeding is resolved in accordance with the
terms of this opinion.
7
While we do not rely on this point, the district court's
disciplinary order was actually ambiguous as to whether Zeno could
remain in pending CJA cases. We understand that the order has been
construed to require his withdrawal therefrom.
-10-