In re: Harper
725 F.3d 1253
10th Cir.2013Background
- Harper, Florida-licensed attorney, suspended 91 days in Florida; Colorado federal court then imposed reciprocal 91-day suspension.
- Florida Bar alleged misconduct in a civil case; included misrepresentations, improper procedural actions, and attacks on judicial officers.
- Florida Supreme Court adopted the referee’s recommendation for suspension; reciprocal discipline proceedings in Colorado followed under Local Civil Rule 83.3(E).
- Harper challenged due process, confrontation, and free-speech rights; he sought reconsideration after district court denied relief and denied oral argument.
- Record of Florida proceedings was not furnished by Harper, hindering full constitutional review, though the court analyzed potential violations despite the missing record.
- Court concluded it could not reverse state discipline but could review the constitutional aspects tied to the Florida proceedings and the reciprocity framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due process in Florida proceedings was adequate | Harper claims due process denial | Procedural notice and opportunity to be heard were present | No due process violation; Florida process adequate |
| Right to confrontation in reciprocal discipline | Harper was denied confrontation rights | Right not clearly applicable; no denial shown | Confrontation rights not violated or not clearly applicable |
| First Amendment free-speech claim | Suspension penalizes protected speech | No protection for filing frivolous motions | No First Amendment violation |
| Record on Florida proceedings and reviewability | Florida record absent; review hampered | Record not necessary for upholding discipline; review possible | Reciprocal discipline affirmed despite record gap; constitutional claims reviewed de novo to extent based on Florida actions |
| Evidentiary hearing in reciprocal discipline | Rule 83.5 requires an evidentiary hearing | Rule 83.5 not applicable to reciprocal discipline | No evidentiary hearing required; district court’s approach sustained |
Key Cases Cited
- Selling v. Radford, 243 U.S. 46 (1917) (reciprocal discipline allowed unless grave due process flaws shown)
- In re Abrams, 521 F.2d 1094 (3d Cir. 1975) (district court’s reliance on state actions circumscribed; review limited)
- In re Sibley, 564 F.3d 1335 (D.C. Cir. 2009) (referee’s adoption of bar’s report does not violate due process)