In re Bithoney, No. 71-1114 Original.
| Decision Date | 23 October 1973 |
| Docket Number | No. 71-1114 Original. |
| Citation | 486 F.2d 319 |
| Parties | In the Matter of Samuel A. BITHONEY. |
| Court | U.S. Court of Appeals — First Circuit |
Lawrence P. Cohen, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for petitioner.
John P. White, Jr., Boston, Mass., with whom Crane, Inker & Oteri, Boston, Mass., was on brief, for respondent.
Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
This is an original proceeding to determine whether disciplinary action should be taken against Samuel A. Bithoney, a member of the bar of this court. On April 9, 1971 the United States Attorney for the District of Massachusetts filed a Petition for Disciplinary Action against respondent, and an Order to Show Cause was issued by this court on the same day. After respondent had filed an answer, these proceedings were stayed during the pendency of a criminal action instituted against respondent in the United States District Court for the Western District of New York on an unrelated matter. Upon final disposition of that criminal action, the stay in these proceedings was vacated, the Petition for Disciplinary Action having been amended to reflect respondent's conviction on a criminal charge, and a hearing was held before this court on September 11, 1973, at which hearing oral arguments were heard and sworn testimony was taken.
On November 25, 1969 respondent filed in this court Petitions for Review in the cases of Angelo Coviello v. INS (No. 7472), Luciano Pino and Rosa Pino v. INS (No. 7473) and Raffaele Iacadoro v. INS (No. 7474). In all of these immigration cases the effect of the filing was to cause an automatic stay of deportation under the provisions of 8 U.S.C. § 1105a(a)(3). In each case the government moved for summary judgment and the subsequent course of events is described in our Memorandum and Order entered on January 20, 1970:
We then went on to warn:
"This court does not propose to have appeals taken simply for the purpose of staying an enforcement of immigration orders, and when prosecution is not diligently pursued, the court presumes that this was the purpose."
On March 12, 1970 respondent filed a Petition for Review in the case of Rocco D'Allesio et al. v. INS (No. 7566). As in the three prior cases deportation was automatically stayed. Again the government's motion for summary judgment elicited no opposing memorandum of law and the petition was dismissed. The petition was found "totally lacking in merit".
On August 5, 1970 respondent filed two more petitions for review in immigration cases, causing stays in deportation. On this occasion a prehearing conference was held and at the specific request of the court Mr. Bithoney submitted a memorandum of law supporting his clients' position. The court concluded that the petitions were "patently frivolous" and granted summary judgment for the government on November 12, 1970. In the opinion in that case we made the following observation:
Footnote omitted. Panagopoulos v. Immigration and Naturalization Service, 434 F.2d 602, 603-604 (1st Cir. 1970).
On August 21, 1970 respondent filed one, and on August 26, 1970 two more, petitions for review in immigration cases. In all three cases this court granted summary judgment for the government and ordered that mandate issue immediately "because of the total frivolousness" of the petitions.
On January 8, 1973 respondent's conviction on two counts of aiding and abetting the making of a false acknowledgment (in violation of 18 U.S.C. §§ 2, 1015), a felony, was affirmed, United States v. Samuel A. Bithoney, 472 F.2d 16 (2d Cir. 1973), and certiorari was denied on June 11, 1973, 412 U.S. 938, 93 S.Ct. 2771, 37 L.Ed.2d 397.
The government in its Petition for Disciplinary Action urges that respondent Samuel Bithoney has violated his oath as a member of this court's bar, taken pursuant to F.R.A.P. 46(a), in that he did not "demean himself . . . uprightly and according to law". The government also urges that respondent has been "guilty of conduct unbecoming a member of the bar of the court", which, under F.R.A.P. 46(b), is grounds for suspension or disbarment from the bar of a court of appeals, and under F.R.A.P. 46(c) is grounds for other "appropriate disciplinary action" against anyone who practices before the court. Two separate reasons are given by the government for a finding that respondent should be punished pursuant to F.R. A.P. 46. The first is his course of conduct in filing nine petitions for review in immigration cases in nine months, all of which were found to be frivolous, not diligently pursued, or both, and six of which were filed after this court's explicit warning in Angelo Coviello v. INS. The second reason is Mr. Bithoney's felony conviction for aiding and abetting the making of a false acknowledgment.
Respondent defends, first, on the grounds that his conduct in filing the immigration appeals cannot constitute a violation of the obligations of an attorney as defined in F.R.A.P. 46, even though all of them were found by the court to be frivolous, in view of an attorney's obligation to his clients to represent them "zealously". Second, respondent urges that even if his conduct violated Rule 46, that rule is so vague that its enforcement violates due process. Respondent also disputes the propriety of disbarring him because of his felony conviction, contending that his offense was such that disbarment is not warranted.
We find first that respondent's behavior in filing the immigration appeals was improper and worthy of disciplinary action. Out of nine petitions for review not one was found to contain even a semblance of merit. And as we pointed out in Panagopoulos, supra, 434 F.2d at 603-604, such frivolous claims not only waste the time of the court and of the opposing party, but also, because of the operation of the immigration laws, confer an automatic and immediate benefit upon one who may not in the least deserve it. Furthermore, six of these cases were filed in the teeth of our warning in Coviello.
Respondent reminds us of the injunction of Canon EC 7-1, of the Code of Professional Responsibility, that a lawyer must represent the interests of his client "zealously". The mere finding that a position advanced was frivolous must not be cause for discipline of the attorney because of the danger that such action might inhibit the bar from the most vigorous advocacy of clients' positions and thus restrict meaningful access to the court. Furthermore, an attorney would face an intolerable dilemma when the needs or instructions of his client would force him to argue a position which he personally may feel to lack merit, and which could lead to punitive action against him by the court.
Sensitivity to these considerations requires that we indulge every presumption in favor of the attorney who presents or defends a position which is found to lack support. We must insure that there is breathing room for the fullest possible exercise of the advocacy function. But there must be limits. Canon EC 7-1 states that the duty of a lawyer is to represent his client zealously, but only "within the bounds of the law". The processes of this court are made available for the general good; to the extent that they are abused they become less available to those genuinely in need of them.1 Such abuse also lowers public esteem for the judicial system and, particularly in the situation presented here, can unjustifiably result in unmerited benefit.
With these considerations in mind, we find that respondent has abused the processes of this court by lodging appeals of patent frivolity, under the circumstances shown above. Whether we question his good faith is not determinative; his course of action was so clearly and flagrantly in violation of the proper behavior of a member of the bar of this court that it represents at a minimum such gross negligence that punitive action is indicated.
Even at this point we might hesitate to take disciplinary...
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