Gadda v. Ashcroft
| Decision Date | 20 July 2004 |
| Docket Number | No. 02-80014.,No. 02-15113.,02-15113.,02-80014. |
| Citation | 377 F.3d 934 |
| Parties | Miguel GADDA, Esq., Petitioner-Appellant, v. John ASHCROFT, Attorney General, U.S. Attorney General; Board of Immigration Appeals; Edward G. Kandler; Immigration Court, San Francisco; Immigration and Naturalization Service, Respondents-Appellees. In re Miguel Gadda, Esq., Admitted to the bar of the Ninth, Circuit: 23 April 1985, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Miguel D. Gadda, Esq., San Francisco, CA, pro se, for the petitioner-appellant.
Jocelyn Burton, Esq. and Robert Yeargin, Esq., Assistant United States Attorneys, San Francisco, CA, and David J. Kline, Esq. and Hugh G. Mullane, Esq., United States Department of Justice, Washington, DC, for respondents-appellees John Ashcroft, United States Attorney General, and Board of Immigration Appeals.
Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presideing. D.C. No. CV-01-03885-PJH.
Original Proceedings.
Before BEEZER, THOMAS, and CLIFTON, Circuit Judges.
Pursuant to our April 1, 2004 order and opinion, Miguel Gadda, Esq., was disbarred from the practice of law before the United States Court of Appeals for the Ninth Circuit pursuant to Federal Rule of Appellate Procedure 46(b)(1)(A). Respondent Gadda has filed a motion to recall the mandate and amend the April 1, 2004 order and opinion.
The court on its own motion recalls the mandate. The April 1, 2004 order and opinion is amended as follows: The two paragraphs on slip op. 4046-47 that read:
Within 21 days of the filing date of this opinion, respondent shall file notices of withdrawal in all cases pending in this court in which he is counsel of record, serve this order on his clients in all pending cases, inform the clients that they must obtain new counsel, and he shall turn over all client files and materials to the clients. Also, within 21 days, Gadda shall file proof with the clerk of this court that he has completed the above requirements. Gadda shall send to the clerk of this court the full identification of his clients in all pending cases in this court and such identification shall include the following information as to each client:
A. Full name
B. Current mailing address
C. Telephone number, if known
D. The Ninth Circuit appeal file number
E. The BIA appeal file number, if any
The Clerk shall deliver certified true copies of this opinion and order to the Clerks of the Supreme Court of the United States and the United States District Court for the Northern District of California, to the California State Bar and to the California State Bar Association, ATTN: Enforcement Department, 180 Howard Street, San Francisco, CA, 94105, and to the Executive Office of Immigration Review, Office of the General Counsel, ATTN: Bar Counsel, 5107 Leesburg Pike, Suite 2400, Falls Church, VA 22041. See 9th Cir. R. 46-2(g).
are deleted.
The following five paragraphs shall be inserted at slip op. 4046 and substituted for the deleted text:
Within 21 days of the date of this order, respondent Gadda shall file notices of withdrawal in all cases pending in this court in which he is listed as counsel of record as of June 1, 2004, serve this order and the court's April 1, 2004 order and opinion on his clients in the pending cases, and turn over all client files and materials to the clients. Respondent Gadda shall inform his clients in the pending cases that they must (1) obtain new counsel; or (2) notify the court that they wish to represent themselves; or (3) request that the court appoint counsel for them. He shall further notify them that he can no longer provide any legal assistance for them and may not collect fees for future services. Also within 21 days of this order, respondent Gadda shall file proof with the court that he has completed the above requirements and send to the court the addresses of his clients in all pending cases.
With the above amendments, Gadda's motion is denied. No motions for reconsideration, rehearing, clarification, modification, or stay of the mandate shall be filed or entertained. The mandate shall issue forthwith.
Failure to comply with this order within the time permitted will result in the imposition of monetary sanctions of not less than $1,000, without further notice, for each case in which respondent Gadda fails to fulfill the requirements of this order.
The Clerk shall serve copies of this order on the Clerks of the United States Supreme Court and the United States District Court for the Northern District of California; on the State Bar of California, Attention: Enforcement Department, 180 Howard Street, San Francisco, CA, 94105; and on the Executive Office for Immigration Review, Office of the General Counsel, Attention: Bar Counsel, 5107 Leesburg Pike, Suite 2400, Falls Church, VA 22041. See 9th Cir. R. 46-2(g).
The Clerk shall serve this order on Gadda by telephone and by certified mail, return receipt requested.
On July 30, 2001, the California State Bar Court (the "State Bar Court") found that Miguel Gadda, Esq. repeatedly failed to perform legal services competently. It placed Gadda on involuntary inactive status and recommended that Gadda be disbarred.
This opinion and order relate to two federal proceedings resulting from the State Bar Court's recommendation. In the first, Gadda appeals an order of the United States District Court for the Northern District of California, which denies Gadda's motion to preliminarily enjoin the Board of Immigration Appeals ("BIA") decision to suspend him from practice based on his suspension by the State Bar Court. Gadda v. Ashcroft, No. 02-15113. Gadda asserts that the State Bar Court cannot affect his right to practice before the BIA. The other proceeding is a disciplinary action initiated by this court after we received notice of Gadda's suspension from practice by the State Bar Court. In re Gadda, No. 02-80014.
Gadda argues that any reciprocal discipline imposed by the BIA or by this court based on the State Bar Court's suspension order is invalid because the Supreme Court of California lacked jurisdiction to discipline him. He claims that federal law preempts the states' authority to regulate attorneys, like him, who practice only in the administration of immigration law and in the federal courts, but not in the state courts. Because both of these proceedings involve the same underlying preemption issue, we consolidate them for opinion purposes only.
We conclude that federal law does not preempt the Supreme Court of California's authority to suspend or disbar attorneys admitted to practice in California state courts. The Supreme Court of California's discipline orders may serve as the basis for reciprocal disbarment actions by both the BIA and this court.
We disbar Gadda from the practice of law before the United States Court of Appeals for the Ninth Circuit.
Gadda was admitted to the California State Bar in 1975. Thereafter, he was admitted to practice law and became a member of the bar of the United States District Court for the Northern District of California, the United States Court of Appeals for the Ninth Circuit, and the Supreme Court of the United States. He was also admitted to practice before the Board of Immigration Appeals ("BIA") and was authorized to appear for clients before the BIA and in all Immigration Courts throughout the United States.
On August 26, 2002, the Review Department of the California State Bar Court (the "Review Department") affirmed the State Bar Court's decision recommending Gadda's disbarment and placing him on involuntary inactive status. In re Gadda, 2002 WL 31012596, at *1 (Cal.Bar Ct. Aug.26, 2002). On January 22, 2003, the Supreme Court of California ordered that Gadda be disbarred from the practice of law in California, effective February 21, 2003. In re Gadda, 539 U.S. 943, 123 S.Ct. 2618, 156 L.Ed.2d 629, (Cal.2003).
The Review Department's opinion surveyed Gadda's history of federal immigration practice, concluding that "disbarment is warranted under the circumstances for the protection of the public, the courts, and the legal profession." In re Gadda, 2002 WL 31012596, at *1. The Review Department cited seventeen acts of misconduct extending over six years and involving eight federal immigration client matters and one client trust account matter. This misconduct included Gadda's failure to appear at scheduled court conferences and to keep clients apprised of the proceedings and relevant court dates. Five of Gadda's clients were ordered deported in absentia and at least six courts found Gadda to have provided ineffective assistance. The Review Department concluded that Gadda failed "to perform legal services competently, demonstrated indifference toward rectification of or atonement for the consequences of his misconduct, and significantly harmed clients." Id. at * 32; see id. at *4-30 (discussing Gadda's misconduct). The Review Department determined that aggravating factors, including prior discipline for similar misconduct in 1990, see Gadda v. State Bar, 50 Cal.3d 344, 267 Cal.Rptr. 114, 787 P.2d 95 (1990), out-weighed any mitigating factors Gadda presented. Id. at *30-33, 267 Cal.Rptr. 114, 787 P.2d 95.
We incorporate by reference that portion of the Review Board's opinion which inventories Gadda's incompetence between 1994 and 1999. Of the eight federal immigration client matters which the Review Board describes, that of the Saba family is especially egregious.
The four minor Saba children applied for political asylum. After the INS denied their application, the children retained Gadda to represent them. Gadda advised the children to withdraw their asylum claim; the Immigration Judge ("IJ") ordered that they...
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