U.S. v. Wunsch, 93-50671

Decision Date24 May 1996
Docket NumberNo. 93-50671,93-50671
Citation84 F.3d 1110
Parties, 96 Cal. Daily Op. Serv. 3687, 96 Daily Journal D.A.R. 6025 UNITED STATES of America, Plaintiff-Appellee, and The State of California; The State Bar of California, Intervenors-Appellees, v. William WUNSCH; Beverly Wunsch; Teri Lee Sowers, Defendants, and Frank L. Swan, Respondent-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Carol A. Sobel, ACLU Foundation of Southern California, Los Angeles, California, for respondent-appellant.

Paul L. Seave, Assistant United States Attorney, Sacramento, California; Elana Shavit Artson, Assistant United States Attorney, Santa Ana, California, for plaintiff-appellee.

Karen Leaf, Deputy Attorney General, Sacramento, California, for petitioner-intervenor-appellee.

James M. Wagstaffe and Mark L. Tuft, Cooper, White & Cooper, San Francisco, California, for petitioner-intervenor-appellee.

Robert A. Hawley and Lawrence C. Yee, Office of General Counsel, The State Bar of California, San Francisco, California, for petitioner-intervenor-appellee.

Lynn Hecht Schafran, NOW Legal Defense and Education Fund, New York City, for amici curiae.

Robert M. Ikemi, California Women's Law Center, Los Angeles, California, for amici curiae.

Meir J. Westreich, Glendale, California, for amicus curiae.

Appeal from the United States District Court for the Central District of California, Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CR-92-00053(A)-AHS.

Before: BROWNING, FARRIS and LEAVY, Circuit Judges.

LEAVY, Circuit Judge:

In this case we are called upon to determine whether the district court properly sanctioned an attorney for conduct that occurred outside the courtroom and after the attorney had ceased to represent any of the parties involved with the proceedings before the court. For the reasons that follow, we reverse.

FACTS AND PRIOR PROCEEDINGS

This matter arose during the course of a criminal tax prosecution brought by the United States against three defendants, William and Beverly Wunsch and their daughter, Teri Sowers. Shortly after Sowers's arrest by federal agents on March 18, 1993, Frank Swan telephoned Assistant United States Attorney Elana Artson, counsel for the United States. Swan identified himself as Sowers's lawyer and asked about the charges pending against his client, including the conditions for her release. Swan also told Artson that he would be unable to attend Sowers's bail hearing that afternoon, but would send another attorney, Gerald Wilson, in his stead.

On March 24, 1993, Artson moved to disqualify Swan and Wilson from representing Sowers, arguing that their representation of both Sowers and her parents, who at that time were the targets of a grand jury investigation, amounted to a conflict of interest. In a memorandum in opposition filed five days later, Sowers argued that disqualifying Swan would adversely affect her ability to present an effective defense, because Swan had represented both her and her parents since November 1990 in connection with the underlying Internal Revenue Service civil audit and summons enforcement hearings. Sowers also declared that she and her parents were prepared to waive any conflict. On March 29, 1993, Artson filed a supplement to her motion, noting that Swan had previously represented two accountants the government intended to call as witnesses during its case-in-chief.

On April 5, 1993, the district court conducted a hearing at which both Swan and Wilson appeared and argued against the government's motion. The court granted the motion, finding that a serious potential for conflict of interest existed. Sowers filed a motion to reconsider four days later. The following week (i.e., April 15, 1993), a federal grand jury handed down a 14-count superseding indictment containing additional charges against Sowers as well as new charges against the Wunsches. On April 20 On May 6, 1993, Artson received a letter from Swan. The letter was dated May 3, 1993, and read as follows:

                1993, Artson also moved to disqualify Swan and Wilson from representing the Wunsches.   Neither Swan nor Wilson filed any opposition to this motion.   On April 28, 1993, the district court granted the motion to disqualify them from representing the Wunsches, and denied Sowers's motion to reconsider
                

Dear Elana: I have something here that I think applies to you.

Your disqualification of Wilson and me was neither just nor fair to the defendants. Surely, it serves your interests because now it will be easy for you.

Very truly yours,

/s/ Frank Swan

FRANK L. SWAN, INC.

Appended to the letter was a single sheet of paper with the following photocopied words, all enlarged and in capital letters:

MALE LAWYERS PLAY BY THE RULES, DISCOVER TRUTH AND RESTORE ORDER. FEMALE LAWYERS ARE OUTSIDE THE LAW, CLOUD TRUTH AND DESTROY ORDER. 1

On May 10, 1993, the government filed a motion asking the district court to punish Swan for violating Rules 2.5.1 2 and 2.5.2 3 of the Local Civil Rules of Practice for the United States District Court, Central District of California ("Local Rules"). In his opposition filed May 21, 1993, Swan argued that the court lacked disciplinary authority (i.e., jurisdiction) over him because he had not appeared in the criminal case and his conduct was unconnected with that litigation. In the alternative, Swan contended that, even if his comments ran afoul of the Local Rules, they were protected speech under the First Amendment. The government filed its reply on May 28, 1993, and the matter was argued to the court ten days later.

On September 13, 1993, the district court issued its Memorandum Opinion on Order Sanctioning Attorney for Gender-Based Discrimination. Matter of Swan, 833 F.Supp. 794 (C.D.Cal.1993). The court found that, by sending the letter to Artson, Swan had violated several Local Rules, including one that incorporated the provisions of a state statute governing attorney conduct. Id. at 798-99 & n. 6. The court ordered Swan to write a letter of apology to Artson, and referred the matter to the Central District's Standing Committee on Discipline for any action it might deem appropriate. Id. at 800. Swan timely appealed.

By published opinion filed April 28, 1995, we reversed the district court's decision on the grounds that two of the Local Rules in question were inapposite, and the state law provision relied upon by the district court was unconstitutionally vague. United States v. Wunsch, 54 F.3d 579, 584-86 (9th Cir.1995). Shortly thereafter, the State of California and the California State Bar Association (jointly, "California") filed a motion to intervene on appeal and petitioned us to rehear the case, arguing that California had not been given an opportunity to challenge our determination that the statute in question was unconstitutional. 4 After we had granted the motion to intervene, the National Conference of Black Lawyers ("NCBL") sought leave to file a brief as an amicus curiae in favor of our decision and in opposition to the arguments advanced by California. On October 12, 1995, we granted NCBL's motion along with California's petition

                for rehearing.   Following additional briefing, we heard oral argument from the parties and parties-intervenor in December 1995.
                
ANALYSIS
Standard of Review

This Circuit has not squarely decided the question of what standard of review should govern appeals from decisions imposing sanctions for attorney conduct found to violate local rules. Compare United States v. Lopez, 4 F.3d 1455, 1458 (9th Cir.1993) (de novo) with Professional Programs Group v. Department of Commerce, 29 F.3d 1349, 1353 (9th Cir.1994) (abuse of discretion) and Guam Sasaki Corp. v. Diana's Inc., 881 F.2d 713, 715 (9th Cir.1989) (according "great deference" to court's interpretation of its local rules).

We have held in the context of Fed.R.Civ.P. 11 that a district court's decision to impose sanctions against an attorney for violating the court's local rules is subject to three levels of review: First, we examine for clear error the court's findings of historical fact; second, we review de novo the determination that counsel violated the local rules; and third, we apply an abuse of discretion standard to the district court's choice of sanctions. Warren v. Guelker, 29 F.3d 1386, 1388 (9th Cir.1994) (per curiam). We need not decide what the appropriate standard of review should be in the instant appeal, however, because we would reach the same result regardless of which one were applied.

With respect to the First Amendment, however, the scope of our review is clear: "Legal and constitutional questions are reviewed de novo. In cases ... raising First Amendment issues, an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." United States Dist. Court v. Sandlin, 12 F.3d 861, 865 (9th Cir.1993) (internal quotations and citations omitted).

Discussion

The district court cited as authority for its disciplinary action Local Rules 2.2.6, 5 2.5.1, and 2.5.2; section 6068(f) 6 of California's Business and Professions Code; "and the Court's inherent power[.]" Matter of Swan, 833 F.Supp. at 799 n. 6. With respect to the court's inherent power, we note that an attorney admitted to a particular bar may be disciplined for conduct that violates that bar's local rules of professional conduct. Standing Comm. on Discipline v. Ross, 735 F.2d 1168, 1170 (9th Cir.), appeal dism'd & cert. denied sub nom. Frontier Properties v. Elliott, 469 U.S. 1081, 105 S.Ct. 583, 83 L.Ed.2d 694 (1984). This power to discipline is not limited to conduct that occurs within the course of litigation. See Western Sys., Inc. v. Ulloa, 958 F.2d...

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