55 F.3d 1430 (9th Cir. 1995), 94-55918, Standing Committee on Discipline of United States Dist. Court for Cent. Dist. of California v. Yagman

Docket Nº:94-55918.
Citation:55 F.3d 1430
Party Name:STANDING COMMITTEE ON DISCIPLINE OF the UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Plaintiff-Appellee, v. Stephen YAGMAN, Defendant-Appellant.
Case Date:May 30, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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55 F.3d 1430 (9th Cir. 1995)

STANDING COMMITTEE ON DISCIPLINE OF the UNITED STATES

DISTRICT COURT FOR the CENTRAL DISTRICT OF

CALIFORNIA, Plaintiff-Appellee,

v.

Stephen YAGMAN, Defendant-Appellant.

No. 94-55918.

United States Court of Appeals, Ninth Circuit

May 30, 1995

Argued and Submitted Nov. 2, 1994.

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[Copyrighted Material Omitted]

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Ramsey Clark, Lawrence W. Schilling, New York City, Marion R. Yagman, Stephen Yagman, Yagman & Yagman, P.C., Venice, CA, for defendant-appellant.

Robert F. Lewis, Graham E. Berry, Michael L. Silk, Michael D. Berger, Lewis, D'Amato, Brisbois & Bisgaard, Los Angeles, CA, for plaintiff-appellee.

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Ben Margolis, Hugh R. Manes, Los Angeles, CA, for amicus Los Angeles Chapter of the Nat. Lawyers Guild.

Prof. Erwin Chemerinsky, University of Southern Cal. Law Center, Douglas E. Mirell, Los Angeles, Paul L. Hoffman, Gary L. Bostwick, Santa Monica, CA, Michael L. Abrams, Leslie H. Abramson, Scott Altman, E. Thomas Barham, Jr., Michael Bazyler, Thomas E. Beck, Marilyn Bednarski, David A. Binder, Alicia Blanco, Gary L. Blasi, Harland W. Braun, Doreen Braverman, Michael J. Brennan, Jeffrey Brodey, Evan H. Caminker, Robert Carlin, Gerald L. Chaleff, Richard C. Chier, John Wm. Cohn, Sandra Coliver, Donald W. Cook, Roger Cossack, Jeffrey W. Cowan, V. James DeSimone, Roger Jon Diamond, David A. Elden, Susan R. Estrich, Barry A. Fisher, Catherine L. Fisk, Stanley Fleishman, James H. Fosbinder, Frederick D. Friedman, Paul L. Gabbert, Mary Ellen Gale, William J. Genego, Diana Greene Gordon, Jeffrey S. Gordon, Dianna J. Gould-Saltman, Stanley I. Greenberg, Carlton F. Gunn, Kathryn Hirano, Richard G. Hirsch, Robert A. Holtzman, Robert T. Jacobs, Elliott N. Kanter, Steven J. Kaplan, Michael S. Klein, Marvin E. Krakow, Dennis Landin, E. Richard Larson, Karen A. Lash, Joseph P. Lawrence, Leon Letwin, Joel Levine, Raleigh H. Levine, Barrett S. Litt, Karl M. Manheim, Robert F. Mann, Guy R. Mazzeo, Robin Meadow, Carrie J. Menkel-Meadow, Laini Millar-Melnick, Michael R. Mitchell, Hermez Moreno, Michael Nasatir, Robert D. Newman, Jr., Barbara E. O'Connor, Angela E. Oh, Fred Okrand, Robert M. Ornstein, Howard R. Price, Vicki I. Podberesky, Donald M. Re, Irma Rodriguez, Stephen F. Rohde, Richard Alan Rothschild, Alan I. Rubin, D. Kate Rubin, Thomas A. Saenz, Robert Michael Saltzman, Rickard Santwier, Peter A. Schey, Benjamin Schonbrun, Robert A. Schwartz, Gerald V. Scotti, Michael T. Shannon, Janet Schmidt Sherman, Richard G. Sherman, Victor Sherman, Lawrence Solum, Mona C. Soo Hoo, Matthew L. Spitzer, Dan L. Stormer, Marcy Strauss, Michael J. Strumwasser, Barry Tarlow, Maureen Tchakalian, Robert N. Treiman, Eve Triffo, Eugene Volokh, Carol A. Watson, Charles David Weisselberg, Gary C. Williams, Frederic D. Woocher, John Yzurdiaga, Los Angeles, CA, for amicus American Jewish Congress-Pacific Southwest Region, and Article 19.

Appeal from the United States District Court for the Central District of California.

Before: Charles WIGGINS, Alex KOZINSKI and David R. THOMPSON, Circuit Judges.

Opinion by Judge KOZINSKI; Dissent by Judge WIGGINS.

KOZINSKI, Circuit Judge.

Never far from the center of controversy, outspoken civil rights lawyer Stephen Yagman was suspended from practice before the United States District Court for the Central District of California for impugning the integrity of the court and interfering with the random selection of judges by making disparaging remarks about a judge of that court. We confront several new issues in reviewing this suspension order.

I

The convoluted history of this case begins in 1991 when Yagman filed a lawsuit pro se against several insurance companies. The case was assigned to Judge Manuel Real, then Chief Judge of the Central District. Yagman promptly sought to disqualify Judge Real on grounds of bias. 1 The disqualification motion was randomly assigned to Judge

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William Keller, who denied it, Yagman v. Republic Ins., 136 F.R.D. 652, 657-58 (C.D.Cal.1991), and sanctioned Yagman for pursuing the matter in an "improper and frivolous manner," Yagman v. Republic Ins., 137 F.R.D. 310, 312 (C.D.Cal.1991). 2

A few days after Judge Keller's sanctions order, Yagman was quoted as saying that Judge Keller "has a penchant for sanctioning Jewish lawyers: me, David Kenner and Hugh Manes. I find this to be evidence of anti-semitism." Susan Seager, Judge Sanctions Yagman, Refers Case to State Bar, L.A. Daily J., June 6, 1991, at 1. The district court found that Yagman also told the Daily Journal reporter that Judge Keller was "drunk on the bench," although this accusation wasn't published in the article. See Standing Comm. on Discipline v. Yagman, 856 F.Supp. 1384, 1386 (C.D.Cal.1994).

Around this time, Yagman received a request from Prentice Hall, publisher of the much-fretted-about Almanac of the Federal Judiciary, 3 for comments in connection with a profile of Judge Keller. Yagman's response was less than complimentary. 4

A few weeks later, Yagman placed an advertisement (on the stationary of his law firm) in the L.A. Daily Journal, asking lawyers who had been sanctioned by Judge Keller to contact Yagman's office. 5

Soon after these events, Yagman ran into Robert Steinberg, another attorney who practices in the Central District. According to Steinberg, Yagman told him that, by levelling public criticism at Judge Keller, Yagman hoped to get the judge to recuse himself in future cases. 6 Believing that Yagman was committing misconduct, Steinberg described his conversation with Yagman in a letter to the Standing Committee on Discipline of the U.S. District Court for the Central District of California (the Standing Committee). See SER 326.

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A few weeks later, the Standing Committee received a letter from Judge Keller describing Yagman's anti-Semitism charge, his inflammatory statements to Prentice Hall and the newspaper advertisement placed by Yagman's law firm. Judge Keller stated that "Mr. Yagman's campaign of harassment and intimidation challenges the integrity of the judicial system. Moreover, there is clear evidence that Mr. Yagman's attacks upon me are motivated by his desire to create a basis for recusing me in any future proceeding." SER 329-30. Judge Keller suggested that "[t]he Standing Committee on Discipline should take action to protect the Court from further abuse." SER 330.

After investigating the charges in the two letters, the Standing Committee issued a Petition for Issuance of an Order to Show Cause why Yagman should not be suspended from practice or otherwise disciplined. Pursuant to Central District Local Rule 2.6.4, the matter was then assigned to a panel of three Central District judges, which issued an Order to Show Cause and scheduled a hearing. 7 Prior to the hearing, Yagman raised serious First Amendment objections to being disciplined for criticizing Judge Keller. Both sides requested an opportunity to brief the difficult free speech issues presented, but the district court never acted on these requests. The parties thus proceeded at the hearing without knowing the allocation of the burden of proof or the legal standard the court intended to apply. 8

During the two-day hearing, the Standing Committee and Yagman put on witnesses and introduced exhibits. In a published opinion issued several months after the hearing, the district court held that Yagman had committed sanctionable misconduct, 856 F.Supp. 1384 (C.D.Cal.1994), and suspended him from practice in the Central District for two years, 856 F.Supp. 1395, 1400 (C.D.Cal.1994).

II

The Central District provides a mechanism for judges and others who become aware of attorney misconduct to refer the matter to the Standing Committee, a body of twelve members of the Central District bar. See Cent.Dist.Local R. (Civil) 2.6.1, 2.6.3. The Standing Committee reviews the charges and conducts an investigation. If it determines that an attorney deserves discipline, it issues a formal complaint and the case is assigned to a randomly selected panel of three judges. See Cent.Dist.Local R. (Civil) 2.6.4. The three-judge panel then holds a hearing on the charges with the committee acting as prosecutor.

Yagman challenges the makeup of the Standing Committee on the ground that several of its members had conflicts of interest that could have influenced their decision to pursue disciplinary action against him. 9 Relying principally on Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107

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S.Ct. 2124, 95 L.Ed.2d 740 (1987), Yagman argues that this denied him due process.

We find Young readily distinguishable. The district court there appointed a private attorney to prosecute the defendant for allegedly violating an injunction protecting Vuitton's trademark. The attorney, however, had represented Vuitton in the civil action which resulted in the injunction, and continued to serve as Vuitton's counsel even as he prosecuted the contempt. He was thus representing two clients with potentially conflicting interests: Vuitton and the United States. The Court noted that by doing so, the attorney was violating ethical standards and a federal criminal law, since he could not "discharge the obligation of undivided loyalty to both clients where both have a direct interest." Id. at 805, 107 S.Ct. at 2136. In such situations, the Court concluded, the temptation to use prosecutorial authority to benefit the private client is too great. To avoid such conflicts of interest, the Court held that "counsel for a party that is the beneficiary of a court order may not be appointed as prosecutor in a contempt action alleging a violation of that order." Id. at 809, 107 S.Ct. at 2138.

Yagman doesn't contend that any of...

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