Matter of Doe

• Decision Date: 04 August 1992
• Docket Number: No. CIV-90-1020-JB.,CIV-90-1020-JB.
• Citation: 801 F. Supp. 478
• Parties: In the Matter of John DOE, Esquire.
• Court: U.S. District Court — District of New Mexico

801 F. Supp. 478

In the Matter of John DOE, Esquire.

No. CIV-90-1020-JB.

United States District Court, D. New Mexico.

August 4, 1992.

R. Raymond Twohig, Virginia L. Ferrara, Albuquerque, N.M., for N.M. Disciplinary Bd.

Don Svet, U.S. Atty., Douglas C. Henson, Asst. U.S. Atty., Albuquerque, N.M., Jay B. Stephens, U.S. Atty., Washington, D.C., for John Doe.

MEMORANDUM OPINION AND ORDER

BURCIAGA, Chief Judge.

The profession of the law, in its nature the noblest and most beneficial to mankind, is in its abuse and abasement the most sordid and pernicious.¹

Law evolves with the collective experience of a society's efforts to peaceably resolve human conflict. Hence, law is not stagnant. Lawyers, in our adversary system, breathe life into its words. As they zealously advocate a client's interest, the law advances and, as they employ reason, they direct its movement. But, the law in this social order is not self-executing — the necessary instrument is the lawyer.

Today, it is beyond argument that one of the lawyer's most noble responsibilities is to protect the individual against Government excesses. Indeed, a lawyer's role is so essential to such vague concepts as "due process" and "equal protection of laws" that we guarantee the indigent a right to a lawyer. And although these concepts, so central to justice, are ultimately defined by the courts, they are first given substance by the lawyer.

When we hear the complaint, "it's not the law," the cry, "they're not following the law," or the clarion call, "there ought to be a law," we are jarred to the reality that our nation is a legal polity. Within this polity there is an increasingly palpable perception that the public is no longer empowered and that the legislature and executive are no longer responsive to its needs. It is not surprising, then, that the public turns to the remaining independent branch of Government — the judiciary — to vindicate its rights under the law. Again, it entreats the lawyer.

Acknowledging the crucial role of the lawyer in our nation's fabric, we must understand ethical standards are not merely a guide for the lawyer's conduct, but are an integral part of the administration of justice. Recognizing a Government lawyer's role as a shepherd of justice, we must not forget that the authority of the Government lawyer does not arise from any right of the Government, but from power entrusted to the Government. When a Government lawyer, with enormous resources at his or her disposal, abuses this power and ignores ethical standards, he or she not only undermines the public trust, but inflicts damage beyond calculation to our system of justice. This alone compels the responsible and ethical exercise of this power.

For this reason, some observe that our system of law is a "tripartite entity"; that the process requires contending lawyers and a neutral trier; that if any of these three supports is missing, the process fails; and, that if any "leg" is disproportionately weak, the structure as a whole is weakened.²

Today, in the context of a disciplinary proceeding, the Government threatens the integrity of our tripartite structure by arguing its lawyers, in the course of enforcing the laws regulating public conduct, may disregard the laws regulating their own conduct. The irony of such an assertion not only fuels public discontent with our system of justice, but the insolence with which the Government promotes this as official policy irresponsibly compromises the very trust which empowers it to act. It falls to this Court to disabuse the Government of its novel self-conceived notion that Government lawyers, unlike any other lawyer, may act unethically.

This case, with its long and tortured procedural history, began when John Doe represented the United States in United States v. Smith, No. CR-F-9938-88, slip op. (S.C.D.C.1989). Between August 24, 1988 and December 8, 1988, John Doe allegedly communicated personally or through his detective with the defendant, Darryl Smith, after Mr. Smith was arrested and with full knowledge that Mr. Smith was represented by an attorney, Ms. Jaime S. Gardiner. While John Doe claims Mr. Smith initiated the conversations and volunteered information only after Mr. Smith was informed that Ms. Gardiner would not approve, John Doe admits he never sought nor received Ms. Gardiner's permission to speak with Mr. Smith.

Upon learning of the communications, Ms. Gardiner filed a motion to suppress. Although Judge Gladys Kessler on July 10, 1989 declined to suppress the evidence, she found John Doe violated Model Code of Professional Responsibility DR 7-104 (1980) ("DR 7-104"),³ stating:

While the violation of the Code of Professional Responsibility is painfully clear, a much more difficult issue is presented in regard to the appropriate sanction to be imposed....

The Board of Professional Responsibility exists to handle cases involving Code violations and to impose appropriate disciplinary sanctions, and that institution is uniquely qualified to pass the ultimate judgment in this case....

Smith, No. CR-F-9938-88, slip op. at 22. Appropriately, Judge Kessler referred the matter to the District of Columbia's Disciplinary Board ("D.C. Disciplinary Board").

Since John Doe is only admitted to the New Mexico Bar and is permitted to practice as an Assistant United States Attorney ("AUSA") in Washington, D.C. solely by virtue of his New Mexico license,⁴ the D.C. Disciplinary Board found it lacked jurisdiction to proceed against him. In doing so, however, the Board specifically "rejected entirely the suggestion that Disciplinary Rule 7-104(A)(1) does not apply to criminal proceedings, ... that the rule does not apply to criminal prosecutors performing their duties ... (and) that the Supremacy Clause of the United States Constitution creates a bar to the prosecution of an AUSA in a state disciplinary proceeding for a disciplinary violation." Petitioner's Exhibit C at 3. Accordingly, on May 14, 1990 the D.C. Disciplinary Board referred the matter to the New Mexico Disciplinary Board ("N.M. Disciplinary Board").

On August 22, 1990 John Doe removed the disciplinary proceeding to this Court and on October 29, 1990 the N.M. Disciplinary Board filed a motion to remand. On January 3, 1992 this Court heard oral arguments on the N.M. Disciplinary Board's motion and having made its findings and conclusions in open court, the Court found the N.M. Disciplinary Board's motion to remand was well taken and would be granted.

John Doe removed this case to federal court pursuant to 28 U.S.C. § 1442 (1973), entitled "Federal Officers sued or prosecuted," which provides:

(a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Any officer of the United States ... for any act under color of such office or on account of any right, title or authority claimed under any act of Congress for the apprehension and punishment of criminals.... (Emphasis added.)

Upon close review of the elements required under this statute, it becomes clear this matter was improvidently removed and this Court lacks jurisdiction. Accordingly, the appropriate forum for adjudicating this matter is the N.M. Disciplinary Board.

A. Criminal prosecution or civil action

Section 1442 permits removal of a "civil action" or "criminal prosecution" commenced against a federal officer. Therefore, the threshold question is whether a disciplinary proceeding, such as this, is a criminal prosecution or civil action.

John Doe argues section 1442 must be interpreted broadly to encompass many more proceedings than the terms civil and criminal traditionally bring to mind. Further, John Doe argues a disciplinary proceeding is "quasi-criminal" or "quasi-civil" and falls within the ambit of section 1442 regardless of whether state law designates the proceeding as sui generis.

The N.M. Disciplinary Board argues that since a disciplinary proceeding does not involve civil or criminal liability on the part of the attorney being reviewed, it is neither a civil action nor criminal prosecution. Moreover, the N.M. Disciplinary Board argues, federal courts have consistently deferred to the states on matters involving attorney discipline; therefore, a disciplinary proceeding is not the type of proceeding Congress contemplated to fall within section 1442.

Section 1442 clearly permits removal of cases "where federal officers are threatened with personal civil liability or criminal liability because of actions taken in pursuance of their federal duties," Fountain Park Cooperative, Inc. v. Bank of America Nat. Trust & Sav. Ass'n, 289 F.Supp. 150, 154 (C.D.Cal.1968), and is essentially "an attempt to protect federal officers from interference by hostile state courts." Willingham v. Morgan, 395 U.S. 402, 405, 89 S.Ct. 1813, 1815, 23 L.Ed.2d 396 (1969). Although section 1442 must be liberally construed to permit the federal government to act through its officers, this liberal construction must be tempered "with the highest regard for State's right to deal with matters properly within its domain." New Jersey v. Moriarity, 268 F.Supp. 546, 555 (D.N.J.1967).

The Fourth Circuit in Kolibash v. Committee on Legal Ethics of West Virginia Bar, 872 F.2d 571 (4th Cir.1989), faced the similar task of determining whether a disciplinary proceeding is a civil action or criminal prosecution for the purposes of section 1442. In doing so, the court adopted the "functional test" used in Volkswagen de Puerto Rico, Inc. v. Puerto Rico Labor Relations Bd., 454 F.2d 38, 43-45 (1st Cir. 1972).

In Volkswagen, the court addressed a separate element of 28 U.S.C. § 1441 (1973)⁵, also present in section 1442, which requires the forum of the initial action to have been a "state court." Specifically, the court sought to determine whether the ...