In re: Allen W. BIRD, II, Appellant.
No. 03-1677.
United States Court of Appeals, Eighth Circuit.
Submitted: Sept. 12, 2003. Filed: Dec. 29, 2003.
353 F.3d 636
We review de novo the district court‘s conclusion that Rodriguez-Hernandez voluntarily confessed to the INS аgent. United States v. Fellers, 285 F.3d 721, 724 (8th Cir. 2002), cert. granted, 538 U.S. 905, 123 S.Ct. 1480, 155 L.Ed.2d 224 (2003). To decide the voluntariness of a confession, we examine the totality of the circumstances to determine whether “pressures exerted by the authorities overwhelmed the defendant‘s will. Coercive police activity is a necessary predicate to finding that a confession is not voluntary in the constitutional sense.” Id. (quoting United States v. Robinson, 20 F.3d 320, 322 (8th Cir. 1994)). The district court found there was no evidence the INS agent used coercive tactics to obtain Rodriguez-Hernandez‘s Mirandized statements more than six hours after her statements to Border Patrol. Having carefully reviewed the record, we agree. Because Rodriguez-Hernandez‘s statements to the INS agent were voluntary, they wеre admissible against her.
Accordingly, we affirm the district court‘s partial denial of Rodriguez-Hernandez‘s motion to suppress.
Counsel who presented argument on behalf of the appellant was Alan R. Humphreys, Rison, Arkansas.
Counsel who presented argument on behalf of the appellee was None.
Before BYE, FAGG, and HANSEN, Circuit Judges.
PER CURIAM.
Bird filed two notices of appeal from the joint order, asserting the district courts committed error in failing to give him the procedural protections available under the Model Federal Rules of Disciplinary Enforcement. Specifically, the relevant aspects of the Model Rules provide (1) the district court shall refer allegations of at
We agree with Bird that the district courts failed to follow precisely the four provisions noted above. We further agree with Bird that, having adopted procedural rules governing attorney discipline, the district courts should hаve followed them. See Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1198-99 (9th Cir. 1999); In re Thalheim, 853 F.2d 383, 386 (5th Cir. 1988); In re Abrams, 521 F.2d 1094, 1104 (3rd Cir.), cert. denied, 423 U.S. 1038, 96 S.Ct. 574, 46 L.Ed.2d 413 (1975). However, we conclude the district courts’ deviation from the Model Rules was harmless in this case.
Bird‘s procedural challenges were lodged with the district courts, discussed and argued by his counsel in a reported telephone hearing with the Chief Judges, and rejected by them. The district courts, relying on their own preсedent, noted the Model Federal Rules of Disciplinary Enforcement do not require in all instances a referral for investigation and prosecution of a formal disciplinary proceeding in cases of alleged misconduct. In re Starr, 986 F.Supp. 1144, 1149 (E.D. Ark. 1997).
The district courts found Bird had received adequate procedural protection and therе was no need to refer the matter to counsel for investigation and prosecution. The bankruptcy court had conducted a lengthy ten-day hearing, during which Bird testified, and that record was available. Bird also appeared personally and through counsel at a hearing on his appeal from the bankruptcy court‘s ordеr. Further, after the district courts issued the show cause order, Bird agreed there were no mitigating factors or facts that had not been presented to the bankruptcy court, and he substantially agreed with the bankruptcy court‘s findings of fact. Bird‘s defense was that although he agreed he had committed the acts found by the bankruptcy court, he did so inadvertently or negligently, not with the mens rea necessary to rise to the level of professional misconduct. In these circumstances, the district courts concluded Bird had adequate notice and an opportunity to be heard in a meaningful time and in a meaningful manner, and it was necessary neither to refer the matter to cоunsel for investigation and prosecution nor to conduct a new evidentiary hearing because there were no material facts in dispute.
Although the district courts should not have disregarded the Model Rules’ referral and hearing requirements, Bird was not prejudiced because he was only challenging the legal conclusions to be drаwn from undisputed facts, and he was heard through his counsel on those matters. Accordingly, we affirm.
BYE, Circuit Judge, dissenting.
For the first time, this court follows the well-settled precedent of other circuits and concludes the federal district courts must observe their own disciplinary rules when sanctioning lawyers for violations of ethical standards. See Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1198-99 (9th Cir. 1999); United States v. Stoneberger, 805 F.2d 1391, 1393 (9th Cir. 1986); Matter of Thalheim, 853 F.2d 383, 386 (5th Cir. 1988); and Matter of Abrams, 521 F.2d 1094, 1104-1105 (3d Cir. 1975). In doing so, however, the majority also regrettably determines it was harmless error for the
In respectfully dissenting from such a holding, I review the process by which Allen W. Bird lost his privilege to practice law in the Arkansas federal courts after 35 years in the legal profession and 27 years of bankruptcy practice. First, in a bankruptcy proceeding, the bankruptcy court found Mr. Bird breached his fiduciary duty to the debtors’ estates and committed fraud upon the bankruptcy court. Next, the court referred the matter to the appropriate Arkansas legal disciplinary authorities and, upon becoming dissatisfied with the progress or result of such investigation, lodged the complaint which initiated these parallel proceedings in the federal district courts. In turn, bypassing the procedural safeguards of the courts’ own rules, which guaranteed lawyer Bird the opportunity to address the courts in mitigation at a formal hearing, the district courts allowed him the opportunity to be hеard by telephone.2
Because lawyer disciplinary proceedings are adversarial and quasi criminal in nature, In re Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), Thalheim, 853 F.2d at 388, they differ from civil proceedings in at least two respects. First, in disciplinary proceedings, the lawyer‘s alleged misconduct must be proved by clear and convincing evidence, an evidentiary standard higher than thе mere preponderance which suffices in civil actions. In re Medrano, 956 F.2d 101, 102 (5th Cir. 1992) (reversing disbarment because the district court had based its findings on the preponderance standard).
Second, an attorney who is found to have violated his professional duties retains the right to address the court before it imposes discipline; in fact, even an attоrney who commits gross and outrageous conduct in open court “should be heard before he is condemned.” Ex Parte Robinson, 86 U.S. (19 Wall.) 505, 512-13, 22 L.Ed. 205 (1873). In our own court, we have insisted upon a lawyer facing disbarment must be heard in mitigation even when the facts underlying the lawyer‘s misconduct are not in dispute. See Matter of Jones, 506 F.2d 527, 529 (8th Cir. 1974) (remanding for a second disbarment hearing to ensure attorney convicted of a felony by the same court had opportunity to speak in mitigation). See also Groppi v. Leslie, 404 U.S. 496, 504, 92 S.Ct. 582, 30 L.Ed.2d 632 (1972) (recalling even those who commit contempt under the court‘s eye have been given the opportunity to speak in the nature of a right of allocution); Eash v. Riggins Trucking, Inc., 757 F.2d 557, 571 (3d Cir. 1985) (explaining attorney‘s words in mitigation “will afford the judge adequate time tо evaluate the propriety of the particular sanction in light of the offending attorney‘s explanation as well as to consider alternatives.“).
As I read them, the Model Rules, from which the district courts adopted as their own the lawyer disciplinary rules, embody these procedural safeguards. First, in requiring the courts to refer disciplinary complaints to counsel “for investigation and the prosecution of a formal disciplinary proceeding,” Rule V(A) contemplates an adversarial and quasi-criminal process by which the accused lawyer can put counsel to the burden of proving the alleged
Moreover, the hierarchical scheme of the Model Rules reflects the essential character of thesе procedural safeguards. Three types of reports may trigger lawyer discipline: Another court‘s order imposing discipline, a certificate of criminal conviction, or a complaint such as the one involved here. When acting upon the first, the district courts may impose so-called reciprocal discipline without providing the procedural safeguards; after all, another court has already treated the underlying conduct as a disciplinary matter, and ushering out these protections again would amount to mere formality. When acting upon a certificate of conviction, in contrast, the district courts still need not to refer the matter to counsel, as the lawyer‘s conduct has already been the subject of prosecution under a heightened evidentiary standard, but must now give the lawyer the opportunity to be heard in mitigation. Finally, where the lawyer has not enjoyed the safeguards in prior proceedings and his misconduct necessarily comes to the attentiоn of the court as a complaint, the Model Rules require the district courts to BOTH refer the matter to counsel AND hold a formal hearing. The Rules make no exception for complaints of civil wrongs.
In this vein, the majority‘s harmless-error analysis vitiates an entire branch of the Model Rules‘s disciplinary scheme. To explain, where a court receives a certificate of conviction, it “shall ... refer the matter to counsel for the institution of a disciplinary proceeding before the [c]ourt in which the sole issue to be determined shall be the extent of the final discipline to be imposed as a result of the conduct resulting in the conviction.” Model Federаl Rules of Disciplinary Enforcement I(D). If it is harmless error to deny lawyer Bird the opportunity to be heard in allocution, it is difficult to imagine when it would not be harmless error to deny such opportunity to a lawyer previously convicted of a serious crime.
Along these lines, the majority‘s harmless-error analysis is also irreconcilable with our own рrecedent. In Jones, the district court disbarred a lawyer who had been convicted of the felony of filing false income tax returns. Though the attorney had been tried and convicted in the same court, the district court held a separate disbarment hearing on the merits, and the lawyer presented no mitigating evidence. Nevertheless, to еnsure the lawyer had the benefit of a “full hearing,” we remanded the case with instructions the district court permit the lawyer “to present any evidence of mitigation ... that he desire[d].” 506 F.2d at 529.
With the foregoing in mind, one need not exalt form over substance to conclude the district courts should have followed the Model Rules. True, the bankruptcy cоurt
It needs saying that Rule X of the Model Rules required the district courts to refer the сomplaint to the state‘s disciplinary agency, the same body with whom Mr. Bird, in the parallel state proceedings, reached a settlement suspending him for a year. “In the United States, admission to the bar and discipline of attorneys is peculiarly within the province of the states,” Abrams, 521 F.2d at 1105 (Rosenn, J., concurring), and “disciplinary proceedings arе best reserved to [the states‘] independent bodies which have been created to investigate charges of unprofessional conduct and to prosecute disciplinary proceedings.” Crayton, 192 B.R. at 977-978. See also In re Dreier, 258 F.2d 68, 69-70 (3d Cir. 1958) (remanding district court‘s denial of admission to its bar so court could give due deference to state‘s finding attorney possessed fitness tо practice). Despite its traditional stewardship over disciplinary matters and despite acting upon the same bankruptcy record and complaint as the district courts, the state agency here determined a temporary suspension was appropriate under all the circumstances. Evidently, as far as the statе of Arkansas was concerned, it was not a foregone conclusion the facts emerging from the bankruptcy hearing would result in lawyer Bird‘s disbarment.4
Ultimately, the district courts’ actions and the majority‘s position reflect poorly upon the federal judiciary itself. The district courts adopted the Model Rules. The practicing bar should therefore be allowed to proceed with the confidence and the assurance courts will follow the rules they themselves did adopt and can freely amend. See Thalheim, 853 F.2d at 390. It takes an exquisite talent for irony for the courts to punish a rule breaker with one hand while they break their own rules with the other. Such inconsistency should not be allowеd to prevail in modern-day court/lawyer interface. Thus, this dissent.