People v. Smith

• Decision Date: 03 March 1997
• Docket Number: No. 96SA306,96SA306
• Citation: 937 P.2d 724
• Parties: 21 Colorado Journal 310 The PEOPLE of the State of Colorado, Complainant, v. David Lee SMITH, Attorney-Respondent.
• Court: Colorado Supreme Court

Page 724

937 P.2d 724

21 Colorado Journal 310

The PEOPLE of the State of Colorado, Complainant, v. David Lee SMITH, Attorney-Respondent.

No. 96SA306.

Supreme Court of Colorado En Banc.

March 3, 1997.

Rehearing Denied April 7, 1997.

Linda Donnelly, Disciplinary Counsel, James C. Coyle, Assistant Disciplinary Counsel, Denver, for Complainant.

David Lee Smith, Pro Se.

PER CURIAM.

This is a reciprocal discipline proceeding arising from the respondent's discipline by the United States Court of Appeals for the Tenth Circuit (court of appeals). The court of appeals suspended the respondent from practicing before it for an indefinite period, with reinstatement contingent on the respondent's paying sanctions imposed against him by the court of appeals and the United States District Court for the District of Colorado (district court). A hearing panel of the supreme court grievance committee approved the findings and recommendation of a hearing board that the respondent be suspended from the practice of law for nine months; that prior to reinstatement he demonstrate that all sanctions imposed by the court of appeals and the district court have been satisfied and that all federal suspensions have been lifted; and in the event that the respondent meets those conditions prior to the expiration of the nine-month suspension, that this court give favorable consideration to the respondent's immediate reinstatement. The respondent has filed exceptions to the panel's action. We accept the hearing panel's and hearing board's recommendations.

I.

The respondent was admitted to practice law in Colorado in 1975. Based on the respondent's testimony and the record, which included the record of the proceedings in the court of appeals, the hearing board concluded that the following had been proven by clear and convincing evidence.

On September 15, 1993, the court of appeals issued an order to the respondent to

show cause in writing why he should not be fined, disbarred or otherwise disciplined for his actions in numbers 93-1070 and 93-1139, Deherrera v. Denver, [7 F.3d 1044 (10th Cir.1993) ] after the entry of this court's orders in Sandlin v. Canady (In re Canady), [993 F.2d 1551 (10th Cir.1993) ] and Dunkin v. Louisiana-Pacific Corp., Nos. 92-1230 & 92-1381 (10th Cir. February 11, 1993), [cert. denied, 510 U.S. 825, 114 S.Ct. 87, 126 L.Ed.2d 54 (1993) ]. The Panel in Deherrera referred this matter to this Discipline Panel because the appeal and petition for writ of mandamus were frivolous. In Casillan v. Regional Transportation District, [986 F.2d 1426 (10th Cir.1993) ], the court also found the appeal to be frivolous. Filing a frivolous appeal is a ground for discipline because it is a violation of 10th Cir. R. 46.5.

The crux of the Deherrera matter was that the respondent had filed a number of interlocutory appeals to the court of appeals on the issue of the validity of sanctions imposed against him by the district court in that case and earlier cases. The law in the Tenth Circuit is that an order imposing sanctions on a lawyer is not a final appealable decision, but is interlocutory so an immediate appeal is not permitted. See G.J.B. & Assocs. v. Singleton, 913 F.2d 824, 827 (10th Cir.1990). The respondent's twenty-two page answer to the show cause order was filed on October 4, 1993. In it, he asked "to be heard in person in defense and in mitigation with respect to the charges being brought against him...."

The court of appeals set the matter down for a hearing on November 12, 1993, allowing fifteen minutes for oral argument, and directed the respondent to file a supplemental response to the order to show cause addressing why he should not be disciplined for filing a frivolous appeal in Casillan, as referred to in the original show cause order. (The respondent's October 4 response only alluded to the Deherrera case.)

On October 22, the respondent filed a motion to vacate the November 12 hearing and asked for additional time to file the supplemental response. He also requested an "evidentiary hearing or designation of a special master for purposes of conducting an evidentiary hearing" (emphasis added), merely stating that his "case in defense and in mitigation will require presentation of extensive evidentiary materials, including expert testimony...." The respondent did not elaborate further on the nature of the evidence he wished to present, nor did he make an offer of proof. He filed a thirty-one page supplemental response to the order to show cause on November 2, 1993, together with another request for an evidentiary hearing without, however, any indication of the nature of the evidence he wished to present. The court of appeals accepted the supplemental response but denied the respondent's motion to vacate the November 12 hearing and his request for an evidentiary hearing.

Oral argument was held as scheduled on November 12, and on November 29, 1993, the court of appeals panel issued its order recognizing that it was bound by the findings of the other court of appeals panels in Deherrera and Casillan that the respondent's appeals in those cases were frivolous, and noting that "[a]t oral argument, respondent admitted that he had not paid any of the sanctions that have been imposed on him by this court or the district court." In re Smith, 10 F.3d 723, 724 (10th Cir.1993). Accordingly, the court of appeals ordered that the respondent "is suspended from the practice of law before this court until all sanctions are paid. He may apply for reinstatement to our bar when he can demonstrate that each sanction order of this court or the district court has been satisfied." Id.

II.

We usually impose the same discipline that was imposed in the other jurisdiction in a reciprocal discipline proceeding unless certain exceptions exist. People v. Meyer, 908 P.2d 123, 124 (Colo.1995). C.R.C.P. 241.17(d) provides in relevant part:

At the conclusion of proceedings brought under this Rule, the hearing panel shall refer the matter to the Supreme Court with the recommendation that the same discipline be imposed by the Supreme Court as was imposed by the foreign jurisdiction unless it is determined by the hearing panel that:

(1) The procedure followed in the foreign jurisdiction did not comport with requirements of due process of law;

(2) The proof upon which the foreign jurisdiction based its determination of misconduct is so infirm that the Supreme Court cannot, consistent with its duty, accept as final the determination of the foreign jurisdiction;

(3) The imposition by the Supreme Court of the same discipline as was imposed in the foreign jurisdiction would result in grave injustice; or

(4) The misconduct proved warrants that a substantially different form of discipline be imposed by the Supreme Court.

The respondent challenges the reciprocal application of the court of appeals order on all four of the above grounds as well as others. In his brief, he raises ten issues that we will address in order.

A.

In his first issue, the respondent claims that the procedure followed in the court of appeals was deficient because he

was entitled to a full criminal process (including his Sixth Amendment right to a jury trial) before being convicted and punished by the Tenth Circuit for failing to pay harsh and unjustified sanctions of more than $50,000.00 previously imposed against him by the Tenth Circuit and by the U.S. District Court.

In the first place, we do not read the court of appeals order as disciplining the respondent for failure to pay the sanctions imposed against him. The respondent was suspended for filing frivolous appeals, as set forth in the show cause order. After admitting at oral argument that he had not paid any of the sanctions imposed against him, however, the court of appeals made satisfaction of the sanctions he had been previously ordered to pay as a condition for reinstatement. See Smith, 10 F.3d at 724. One of the respondent's premises is therefore false.

Second, the complainant points out that the respondent did not raise this precise argument in either the court of appeals or before the hearing board and that it is therefore waived. We nevertheless elect to address it in the context of whether the respondent's due process rights were violated because of the absence of a jury in the court of appeals discipline proceedings, for the purpose of C.R.C.P. 241.17(d)(1).

By its own terms, the Sixth Amendment right to trial by jury applies only to criminal proceedings: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...." U.S. Const. amend. VI. "A lawyer discipline proceeding is not a criminal proceeding...." People v. Marmon, 903 P.2d 651, 652 (Colo.1995). Moreover,

[w]hile a lawyer is entitled to procedural due process in such a [lawyer discipline] proceeding, there is no requirement that he be afforded the same constitutional safeguards applicable to a criminal trial. Harfmann, 638 P.2d at 747; see In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968).

People v. Morley, 725 P.2d 510, 514 (Colo.1986) (citation omitted); see also People v. Varallo, 913 P.2d 1, 3 (Colo.) (same), cert. denied, --- U.S. ----, 117 S.Ct. 80, 136 L.Ed.2d 38 (1996). The respondent has referred us to no authority in Colorado or elsewhere that the Sixth Amendment right to trial by jury applies to lawyer discipline proceedings, and we are aware of none. In fact, other jurisdictions have held that federal and state constitutional provisions regarding the right to trial by jury do not apply to lawyer discipline proceedings. See, e.g., In re Cornelius, 520 P.2d 76, 83 (Alaska 1974); Attorney Grievance Comm'n v. Kerpelman, 288 Md. 341, 420 A.2d 940, 947 (1980); Mississippi State Bar v. Young, 509 So.2d 210, 212-13 (Miss.1987). Our own Rules of Procedure Regarding Lawyer Discipline and...