In re Culpepper

• Decision Date: 15 July 1991
• Docket Number: No. 88-0674.,88-0674.
• Citation: 770 F. Supp. 366
• Parties: In re W. Otis CULPEPPER, Petitioner.
• Court: U.S. District Court — Western District of Michigan

770 F. Supp. 366

In re W. Otis CULPEPPER, Petitioner.

No. 88-0674.

United States District Court, E.D. Michigan, S.D.

July 15, 1991.

John L. Christensen, Detroit, Mich., for petitioner.

Charles K. Higle, Detroit, Mich., for respondent.

Before DeMASCIO, NEWBLATT and ROSEN, District Judges, sitting as a three-judge panel pursuant to Eastern District of Michigan Local Rule A-7(c).

MEMORANDUM OPINION AND ORDER DENYING WITHOUT PREJUDICE PETITIONER'S APPLICATION FOR REINSTATEMENT

ROSEN, District Judge.

This matter has come before the Court on the Petition of W. Otis Culpepper for Reinstatement to practice before this Court.

I. PERTINENT FACTS

Petitioner W. Otis Culpepper was found guilty following a trial in this court on May 12, 1988 of three counts of income tax evasion and failure to file income tax returns for specific years in violation of 26 U.S.C. § 7201. On August 17, 1988, Mr. Culpepper was sentenced to (1) three years confinement for two counts of failure to file income tax returns and (2) five years probation commencing upon his release from incarceration for one count of income tax evasion, and ordered to pay a fine of $15,000.

Following his conviction, Mr. Culpepper was suspended from the practice of law by the Michigan Attorney Discipline Board for a period of two years. Then, on May 26, 1988, the late Chief Judge Philip Pratt entered an Order of Suspension for Conviction of a Serious Crime in this Court, suspending Mr. Culpepper from the practice of law before the U.S. District Court of the Eastern District of Michigan, pursuant to Eastern District Local Rule A-1(a).¹

Upon completion of his two-year state Bar suspension period, Mr. Culpepper filed an application with the Michigan Attorney Discipline Board for reinstatement of his license to practice law before the State courts. He was reinstated by a panel of that Board on November 8, 1990. Then, on December 14, 1990, Mr. Culpepper filed an application for reinstatement to practice before this court. At a hearing on Mr. Culpepper's application, the Court learned that Petitioner was still serving the sentence imposed by this court in 1988, and would not complete his parole term until January 1992.² The Court, therefore, requested that counsel brief the issue of whether Mr. Culpepper's parole and/or probation status precludes his reinstatement to practice before this Court.

Having considered the briefs submitted by counsel, and the oral arguments and evidence presented at the reinstatement hearing, the Court is now prepared to rule on Petitioner's application, and this Memorandum Opinion and Order sets forth that ruling.

II. DISCUSSION

A. THIS COURT IS NOT BOUND BY THE DETERMINATION OF THE STATE GRIEVANCE BOARD.

Mr. Culpepper contends that this Court's Local Rules regarding admission to practice, discipline and reinstatement after suspension or disbarment "entirely rely on the previous findings of another forum as to the competency and moral character of the applicant" and, therefore, since he has been reinstated to practice before the Michigan state courts, this Court cannot make an independent investigation of his fitness to practice law, but rather must also automatically reinstate him.

The pertinent Local Rules of the Eastern District of Michigan are Local Rules 12, A-1, A-2, and A-7.

Local Rule 12 governs Admission and Practice before this Court. That rule provides in pertinent part:

(b) Eligibility for Admission. Any person who is duly admitted to practice in a Court of record in any of the States, of the District of Columbia, or any United States District Court and who remains in good standing is eligible for admission to the Bar of this Court.

While Mr. Culpepper relies on this rule as principal support for his contention that his reinstatement to practice in Michigan state courts entitles him to automatic reinstatement before this Court, without further investigation, it appears that he has overlooked the express provisions of subsection (c) of Rule 12. With regard to attorneys who seek readmission after having been suspended or disbarred from the practice of law by any court, subsection (c) of Rule 12 provides for readmission only upon petition, and that upon the filing of such a petition, "The Chief Judge of the Court shall conduct or order such investigation as the circumstances require".

Moreover, Local Rule A-7 only provides for "automatic reinstatement" of attorneys who have been suspended for 119 days or less. "An attorney suspended for more than 119 days or disbarred may not resume practice until reinstated by order of this Court." Local Rule A-7(a).

Mr. Culpepper's suspension by this Court was for an indefinite term and his state court suspension was for two years. Therefore, it is clear that the "automatic" reinstatement provisions of Eastern District Local Rule A-7(a) do not apply here.

Subsection (c) of Eastern District Local Rule A-7 provides the procedures and burden of proof governing reinstatement of suspended attorneys:

Petitions for reinstatement by a disbarred or suspended attorney under this Rule shall be filed with the Chief Judge of this Court.... The Judge or Judges assigned to the matter shall within 30 days after referral schedule a hearing at which the petitioner shall have the burden of demonstrating by clear and convincing evidence that he has the moral qualifications, competence and learning in the law required for admission to practice before this Court and that his resumption of the practice of law will not be detrimental to the integrity and standing of the Bar or to the administration of justice, or subversive of the public interest.

Emphasis added.

Thus, contrary to Mr. Culpepper's contention, there is no provision in the Local Court Rules regarding admission and reinstatement which would entitle him to "automatic" reinstatement without further investigation by this Court because of his reinstatement to practice before Michigan courts.³

Furthermore, Mr. Culpepper's contention that this Court must reinstate him simply because the Michigan Attorney Grievance Commmission determined that he is fit to practice before Michigan state courts is not supported by case law.

This very proposition was discussed in detail and rejected in Matter of Discipline of Olkon, 795 F.2d 1379 (8th Cir.1986). That case, like this matter, involved a petition for reinstatement to practice before the federal court filed after the attorney, who had been convicted for insurance fraud, was reinstated to practice before the state court. The District Court denied Olkon's petition for reinstatement.

On appeal, Olkon argued — just as Mr. Culpepper argues here — that the District Court could not deny him reinstatement when the Minnesota Court had readmitted him to practice in state courts.⁴ The Eighth Circuit rejected that argument:

The Supreme Court has recognized that federal district courts have power independent of state courts to discipline attorneys admitted to practice before the federal bench. See In re Ruffalo, 390 U.S. 544 at 547, 88 S.Ct. 1222 at 1224 20 L.Ed.2d 117 (1968); Theard v. United States, 354 U.S. 278, 281-82, 77 S.Ct. 1274, 1276-77, 1 L.Ed.2d 1342 (1957); Selling v. Radford, 243 U.S. 46, 50-51, 37 S.Ct. 377, 379, 61 L.Ed. 585 (1917). Thus, the district court had the authority to consider any evidence relevant to the petition for reinstatement.

795 F.2d at 1383 (footnote omitted and emphasis added).⁵

As Mr. Culpepper points out in his Brief, there have, however, been occasions when courts have found that, in the absence of exceptional circumstances, it is appropriate for a federal court to adopt a state court's determination regarding attorney discipline. See, e.g., In re Isserman, 348 U.S. 286, 73 S.Ct. 676, 97 L.Ed. 1013 (1953), vacated on rehearing, 384 U.S. 1, 75 S.Ct. 6, 99 L.Ed. 3 (1954). See also, Matter of Abrams (discussed in note 4 supra).

Mr. Culpepper relies heavily on the policy arguments against disparity of sanctions between state and federal courts discussed by Judge Rosenn in his concurring opinion in the Abrams case:

The imposition of disbarment by the federal court when the state has imposed only suspension implicitly attacks the regularity and judgmental values of the state proceedings, implying that the sanction chosen by the state courts is inappropriate. This result is bound to create tensions between the state and federal judiciaries.

The second important policy behind the need to avoid disparate sanctions by the federal and state courts is the maintenance of public confidence in our legal system and in the bar.... The district court's action permits Abrams to practice in the state, but not in the federal system. Such an anomaly can only lead to confusion in the minds of the public, which justifiably may speculate why an attorney not qualified to practice in a federal court has sufficient moral character to practice in the state court. Unless an exceptional reason of record justifies such disparate treatment, its effect will, in my opinion, render a grave disservice to the public.

521 F.2d at 1106.

While Judge Rosenn's policy discussion is compelling, as noted in note 4 supra, this case is readily distinguishable from Abrams. Moreover, the fact remains that Judge Rosenn's discussion was not the basis of the decision in that case; it is only a concurring opinion, and, even Judge Rosenn qualifies his opinion by suggesting that if an exceptional reason of record justifies disparate treatment, he might find differently. In this case, the Michigan Attorney Discipline Board Hearing Panel's Report on the reinstatement of Mr. Culpepper does not reveal that that body considered the effect of Mr. Culpepper's continued federal parole or probation status. Thus, we have here an arguable "reason of record supporting disparate treatment".⁶

More importantly, unlike this case, the underlying reason for the federal court's disbarment in Abrams, was not a criminal conviction. In ...