Gouiran, In re

• Decision Date: 28 June 1995
• Docket Number: No. 1096,D,1096
• Citation: 58 F.3d 54
• Parties: In re Emile E. GOUIRAN, Respondent, GRIEVANCE COMMITTEE FOR the SOUTHERN DISTRICT OF NEW YORK, Petitioner-Appellee, v. Emile E. GOUIRAN, Respondent-Appellant. ocket 94-7812.
• Court: U.S. Court of Appeals — Second Circuit

Page 54

58 F.3d 54

In re Emile E. GOUIRAN, Respondent GRIEVANCE COMMITTEE FOR the SOUTHERN DISTRICT OF NEW YORK Petitioner-Appellee, v. Emile E. GOUIRAN, Respondent-Appellant.

No. 1096, Docket 94-7812.

United States Court of Appeals Second Circuit.

Argued March 27, 1995.

Decided June 28, 1995.

Mark A. Summers, New York City, for respondent-appellant.

Before: MINER and PARKER, Circuit Judges, and BAER, District Judge. ^*

MINER, Circuit Judge:

Respondent-appellant Emile Gouiran appeals from a July 5, 1994 order of the United States District Court for the Southern District of New York (Patterson, Judge and Chairman, Grievance Committee, S.D.N.Y.) striking his name from the roll of attorneys admitted to practice in the Southern District of New York. For the reasons that follow, we conclude that the district court's order fails to provide a sufficient basis upon which to evaluate the court's exercise of discretion. We therefore vacate the order and remand for further proceedings.

BACKGROUND

On June 9, 1994, the United States District Court for the Southern District of New York issued an order directing Gouiran to show cause, within 30 days, why he should not be temporarily suspended from practice before the district court. The order indicated that the proposed discipline was based upon a temporary suspension order issued by the United States District Court for the District of New Jersey. Gouiran responded by submitting an affidavit and a memorandum of law to the district court.

In his affidavit, Gouiran explained that the disciplinary action of the New Jersey district court was taken in response to an October 8, 1992 order of the Supreme Court of New Jersey that adopted the recommendation of the New Jersey Disciplinary Review Board ("NJDRB"). See In the Matter of Gouiran, 130 N.J. 96, 613 A.2d 479 (1992). The NJDRB had found that Gouiran had violated state disciplinary rules by knowingly omitting pertinent information from his application In Gouiran's case, the NJDRB found compelling circumstances militating against the immediate revocation of his license to practice law. Id. at 485. The board relied principally on the fact that eight years had passed since the submission of the false application without any disciplinary complaints being lodged against Gouiran. Id. Accordingly, a majority of the NJDRB recommended that Gouiran's license to practice law in New Jersey be revoked but that the revocation be stayed for a period of six months in order to give Gouiran the opportunity to reapply for admission to the New Jersey bar. Id. The recommendation of the NJDRB was adopted by the New Jersey Supreme Court in its order of October 8, 1992.

                for bar membership.  Id., 613 A.2d at 482.   Specifically, Gouiran had failed to disclose that his New Jersey real estate license had been revoked by the state in the early 1980s because of several instances of misconduct related to the real estate business.  See id. at 479-82.   Under New Jersey law, the failure to disclose this type of information results in revocation of the attorney's license to practice law absent "special and compelling circumstances."  Id. at 483
                

Gouiran never reapplied for admission, and his license to practice law in New Jersey was revoked permanently in an order dated February 8, 1993. See In the Matter of Gouiran, 131 N.J. 122, 619 A.2d 222 (1993). In his affidavit submitted to the district court, Gouiran provided his reasons for failing to reapply. First, Gouiran explained that, because he had been a permanent resident of France since 1988, he could not maintain a bona fide office in New Jersey, which he believed was a prerequisite for readmission. Gouiran also explained that he had been advised by counsel that the order revoking his license to practice law was equivalent to a resignation without prejudice to reapplication.

In his memorandum of law submitted to the district court, Gouiran, through counsel, argued that the same compelling circumstances that militated against revocation of his New Jersey license to practice law also militated against revocation of his membership in the Southern District bar. He also argued that his inability to reapply to the New Jersey bar was "not a matter within his reasonable control," and that, given his inability to reapply, the New Jersey Supreme Court had never reached the issue of his fitness to practice law.

By an order dated July 5, 1994, the district court revoked Gouiran's membership in the Southern District bar. In the order, the court first noted Gouiran's disbarment in New Jersey and the fact that Gouiran previously had been denied a license to practice law in New York. The order concluded by stating that, "[s]ince [Gouiran's] license to practice law in New Jersey has been revoked and since [Gouiran] is not admitted to practice law in New York, his license to practice in this Court is revoked and his name is stricken from the rolls." This appeal followed.

DISCUSSION

Gouiran argues that the district court erred in failing to adequately review the substance of the New Jersey disciplinary action. This court has recognized that, "while regulation of attorney behavior should remain primarily within the discretion of each district court, ... fundamental notions of fairness" require appellate review of attorney discipline. In the Matter of Jacobs, 44 F.3d 84, 88 (2d Cir.1994). For this reason, we review the district court's order disbarring Gouiran for clear abuse of discretion. Id.

The Local Rules of the United States District Court for the Southern District of New York ("Local Rules") regulate the procedure for disciplining members of its bar. Local Rule 4(d), which governs reciprocal discipline, provides:

If it appears, after notice and opportunity to be heard, that any member of the bar of this court has been disciplined by any federal court or by the court of any state ..., the member may be disciplined by this court, in accordance with the provisions of paragraph (g). (emphasis added).

Paragraph (g) provides, in pertinent part:

Discipline may be imposed by this court with respect to paragraph[ ] (d) ... unless the member of the bar concerned establishes In this case, Gouiran, through his affidavit and memorandum of law, attempted to persuade the district court that disbarment on the basis of the New Jersey disciplinary proceedings would result in a "grave injustice," see Local Rule 4(g)(3), in light of the fact that the NJDRB had found "compelling circumstances" militating against revocation of his license to practice law.

by clear and convincing evidence: (1) with respect to paragraph (d) that there was such an infirmity of proof of misconduct by the attorney as to give rise to the clear conviction that this court could not consistently with its duty accept as final the conclusion of the other court; or (2) that the procedure resulting in the investigation or discipline of the attorney by the other court was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or (3) that the imposition of discipline of this court would result in grave injustice.

In reviewing the district court's order disbarring Gouiran, it appears that the order may have rested on one of two distinct rationales. First, the order can be read as expressing the district court's view that, since Gouiran no longer is licensed to practice law as a member of a state bar, he is ineligible to retain his federal bar membership. This follows from the last sentence of the order, which states: "Since [Gouiran's] license to practice law in New Jersey has been revoked and since [Gouiran] is not admitted to practice law in New York, his license to practice in this Court is revoked...." Alternatively, the district court may have concluded that Gouiran had failed to establish, by...