IN RE ROMAN

• Decision Date: 06 April 2010
• Docket Number: Docket No. 08-9002-am,07-9064-am.
• Citation: 601 F.3d 189
• Parties: In re Hector M. ROMAN, Attorney.
• Court: U.S. Court of Appeals — Second Circuit

601 F.3d 189

In re Hector M. ROMAN, Attorney.

Docket Nos. 08-9002-am, 07-9064-am.

United States Court of Appeals, Second Circuit.

April 6, 2010.

COPYRIGHT MATERIAL OMITTED

Hector M. Roman, Esq., New York, N.Y., pro se.

Before: CABRANES, SACK, and WESLEY, Circuit Judges.

PER CURIAM:

By order filed in November 2007, this panel referred Hector M. Roman to this Court's Committee on Admissions and Grievances ("the Committee") for investigation of the matters described in that order and preparation of a report on whether he should be subject to disciplinary or other corrective measures. Supplemental referral orders were filed in April 2008.

During the Committee's proceedings, Roman had the opportunity to address the matters discussed in the Court's referral order, to testify under oath at a hearing held in December 2008, and to present post-hearing supplementary materials. Roman represented himself during the Committee's proceedings. Presiding over the hearing were Committee Chair Mary Jo White, Esq., and the Honorable Howard A. Levine. In January 2009, the Committee filed with the Court the record of the Committee's proceedings and its report and recommendations. Thereafter, the Court provided Roman with a copy of the Committee's report, and Roman filed a response in April 2009.

In its report, the Committee concluded: (a) Roman was subject to reciprocal discipline, pursuant to Second Circuit Local Rule 46.1(f), based on the prior imposition of discipline by the United States Court of Appeals for the Ninth Circuit; and (b) as a separate matter, Roman was subject to discipline for his behavior in this Court, based on clear and convincing evidence that he had engaged in conduct "unbecoming a member of the bar" within the meaning of Federal Rule of Appellate Procedure 46(c). See Report at 12-15. After finding various aggravating and mitigating factors, see id. at 7, 9, 11, 12, 14, 15, the Committee recommended that Roman be suspended from practice before this Court for a three-month period, based on both the Ninth Circuit's suspension and his conduct before this Court, with each basis operating as an independent ground for the recommended suspension, see id. at 15. In response, Roman states that he does not contest the Committee's recommendation that he be suspended for three months based on the Ninth Circuit suspension, but asks that the suspension not be based on his conduct before this Court. Response at 3-8.

Upon due consideration of the Committee's report, the underlying record, and Roman's response, we adopt the Committee's factual findings concerning Roman's Ninth Circuit suspension and his misconduct in this Court. We also adopt the Committee's conclusions that Roman's Ninth Circuit suspension warrants reciprocal suspension by this Court and that his separate misconduct in this Court was sufficiently serious that it warrants independent disciplinary action. However, for the reasons discussed below, we impose disciplinary sanctions that differ somewhat from those recommended by the Committee.

Reciprocal Discipline

Former Second Circuit Rule 46.1(f) governed this Court's reciprocal discipline procedures until January 1, 2010, when it was superseded by current Second Circuit Local Rule 46.2(c). We need not decide which version of the rule governs Roman's case, since the same result is reached under both versions. Former Local Rule 46.1(f), in pertinent part, provided as follows:

(1) In all cases in which an order disbarring an attorney or suspending the attorney from practice ... has been entered in any other court of record, federal or state, ... the clerk shall enter an order for the court ... disbarring the attorney or suspending the attorney from practice in this court upon terms and conditions comparable to those set forth by the other court of record.

(2) Within a specified time period, a motion may be filed in this court either by such attorney or the Committee for a modification or revocation of the order of this court. Any such motion shall set forth specifically the facts and principles relied on by applicant as showing cause why a different disposition should be ordered by this court.

Former Second Circuit Rule 46.1(f)(1)-(2). Current Local Rule 46.2(c), in pertinent part, provides as follows:

(2) Reciprocal Order. When the court receives a copy of an order entered by an attorney disciplinary authority disbarring or suspending an attorney from practice, the clerk enters an order disbarring or suspending the attorney from practice before this court on comparable terms and conditions.

(3) Motion to Modify or Vacate. Within a specified time period, the attorney may move to modify or vacate the order.

Second Circuit Local Rule 46.2(c)(2)-(3).

Although this Court has not yet explicitly ruled on the issue, we now make clear that former Local Rule 46.1(f) and current Local Rule 46.2(c) reflect a rebuttable presumption that the reciprocal discipline imposed by this Court will be identical—or as close to identical as our rules and the circumstances permit—to the discipline imposed by the prior court or other disciplinary authority. This presumption, although not explicitly referred to as such, has long guided this Court's reciprocal discipline practice and is consistent with the practice of other circuits. See In re Williams, 398 F.3d 116, 119-20 (1st Cir. 2005) ("Given the limited nature of our inquiry, the norm will be for this court to impose discipline which is substantially similar to that imposed by the state court"; also noting that the court's disciplinary rule requires imposition of "substantially the same discipline as was imposed by the original court"); In re Kramer, 282 F.3d 721, 727 (9th Cir.2002) ("we inquire only whether the punishment imposed by another disciplinary authority or court was so ill-fitted to an attorney's adjudicated misconduct that reciprocal disbarment would result in grave injustice"); In re Fallin, 255 F.3d 195, 197 (4th Cir.2001) (court presumes, pursuant to explicit language of local rule, that reciprocal discipline will be identical to original discipline); In re Hoare, 155 F.3d 937, 940 (8th Cir.1998) ("Although a state court disciplinary action is not conclusively binding upon the federal judiciary, federal courts are nevertheless obliged to accord a high level of deference to state court disbarment proceedings. Thus, when a district court learns that a member of its bar has been subject to discipline by another jurisdiction, the identical discipline is typically imposed.") (citations omitted). See also ABA Model Rules for Lawyer Disciplinary Enforcement, R. 22(D) (2002) (providing that court "shall impose the identical discipline" as the prior jurisdiction, unless certain criteria are satisfied, and that "the burden is on the party seeking different discipline ... to demonstrate that the imposition of the same discipline is not appropriate"); ABA Model Federal Rules of Disciplinary Enforcement, R. II(D) (1978, 1991) (providing for identical discipline unless certain criteria are satisfied).¹

Furthermore, the disciplined attorney bears the burden of demonstrating, by clear and convincing evidence, that a different disposition would be appropriate (unless the Committee, or the Court itself, moves for modification or revocation). See In re Friedman, 51 F.3d 20, 22 (2d Cir. 1995) (applying burden of proof in context of appeal from district court's imposition of reciprocal discipline). An attorney seeking to demonstrate either that reciprocal discipline should not be imposed at all or that the "terms and conditions" of the reciprocal discipline should not be "comparable" to those imposed by the other attorney disciplinary authority, Second Circuit Rule 46.2(c)(2); Former Second Circuit Rule 46.1(f)(1), must satisfy the standard set forth in Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585 (1917), which requires the attorney to show:

1. that the ... procedure used by the prior court from want of notice or opportunity to be heard, was wanting in due process; 2, that there was such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not, consistently with our duty, accept as final the conclusion on that subject; or 3, that some other grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar or impose any other disciplinary sanction imposed by the prior court except upon the conviction that, under the principles of right and justice, we were constrained so to do.

Selling, 243 U.S. at 51, 37 S.Ct. 377. In sum, the Selling standard bars reciprocal discipline when the Court finds "(1) absence of due process in the prior disciplinary procedure, (2) substantial infirmity in the proof of lack of private and professional character, or (3) `some other grave reason' sufficient to indicate that reciprocal disbarment or other reciprocal discipline is inconsistent with `principles of right and justice.'" In re Tidwell, 295 F.3d 331, 333-34 (2d Cir.2002) (quoting Selling, supra).

As noted in In re Edelstein, 214 F.3d 127 (2d Cir.2000), several other courts have supplemented the Selling criteria with a fourth reason for not imposing reciprocal discipline—namely, that a reciprocal order should not issue if an attorney's misconduct warrants "substantially different discipline" than that imposed by the court that imposed the original discipline. Edelstein, 214 F.3d at 131-32 (quoting Rule of Disciplinary Enforcement of the Court of Appeals for the First Circuit II(D)(4)). We treat the noted fourth category as subsumed by the "grave reason" category set forth in Selling. See id. at 132 (noting the fourth ground for relief considered by some courts but relying on Selling to conclude that no "grave reason" warranted...