Sekerez v. Supreme Court of Indiana, s. 81-2198

• Decision Date: 09 August 1982
• Docket Number: Nos. 81-2198,81-2251 and 82-1115,s. 81-2198
• Parties: Zarko SEKEREZ, Plaintiff-Appellant, v. SUPREME COURT OF INDIANA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 202

685 F.2d 202

Zarko SEKEREZ, Plaintiff-Appellant, v. SUPREME COURT OF INDIANA, et al., Defendants-Appellees.

Nos. 81-2198, 81-2251 and 82-1115.

United States Court of Appeals, Seventh Circuit.

Argued May 7, 1982.

Decided Aug. 9, 1982.

Jeremiah S. Gutman, Levy, Gutman, Goldberg & Kaplan, New York City, for plaintiff-appellant.

Michael Schaefer, Asst. Atty. Gen., State of Ind., Indianapolis, Ind., for defendants-appellees.

Before SWYGERT, Senior Circuit Judge, COFFEY, Circuit Judge, and TEMPLAR, Senior District Judge. ^*

COFFEY, Circuit Judge.

This is a review of three district court decisions, consolidated on appeal, denying the plaintiff-appellant's motion for an order to show cause and petition for a preliminary injunction, and granting the defendant-appellee's motion to dismiss for failure to state a claim upon which relief could be granted pursuant to Fed.R.Civ.P. 12(b)(6). Affirmed.

Zarko Sekerez, a member of the Indiana bar and the plaintiff-appellant herein, brought this action under 42 U.S.C. §§ 1983 and 1985(3), seeking to enjoin the Indiana Supreme Court's Disciplinary Commission from proceeding against him. In his complaint, the appellant challenged the constitutionality of the disciplinary rules arguing that these rules abrogate his first amendment right of free speech as well as his equal protection and due process rights under the fourteenth amendment. The appellant further alleged that the individually-named defendants ¹ violated 42 U.S.C. § 1985(3) by conspiring to selectively enforce the disciplinary rules of the Indiana Code of Professional Responsibility against him and thus destroy his legal clinic business.

The plaintiff operates 11 legal clinics in central and northern Indiana, and employs 16 licensed attorneys and 18 secretaries. On August 29, 1980, the Executive Secretary of the Indiana Supreme Court's Disciplinary Commission filed with the Clerk of the Supreme Court of Indiana a complaint supporting disciplinary action against the plaintiff. In support of its complaint, the Commission alleged that the appellant herein engaged in the following professional misconduct in violation of Indiana Admission and Disciplinary Rule 1-101 et seq.: (1) knowingly failed to appear at a court hearing on a client's petition to remove a minor child. The plaintiff failed to appear even though he was aware that the hearing was scheduled for that day and even though the court record reveals that after he failed to appear the plaintiff's clinic was notified by phone that the hearing was being held; (2) untimely withdrew his representation of another client and as a result the client had his paycheck garnished and was forced to hire another attorney to obtain relief from the garnishment order. Further, the appellant thereafter refused to give the client the client's file; (3) falsely advertised "free initial consultation" in that the client did not consult with a lawyer during the initial conference but rather dealt with a non-lawyer, the appellant's receptionist. Further, a partial fee of $114 was charged and collected for the initial conference. In this same divorce proceeding, the appellant is alleged to have participated in the use of a non-lawyer, law student, ² to give legal advice to the divorce client; (4) the appellant agreed to file a divorce action and failed to promptly do so; (5) the failure to carry out a contract of employment in a personal injury suit by failing to meet with his client and then untimely withdrawing from representation to the prejudice of the client in that the client's personal injury lawsuit was dismissed with prejudice after the withdrawal by Sekerez; and (6) engaging in the practice of law under trade names. In response to the filing of the complaint and the appointment of a hearing officer by the Supreme Court of Indiana, the appellant filed his answer denying the allegations.

The Disciplinary Commission filed a Petition for Rule to Show Cause, entitled "Motion for Suspension Pending Prosecution." In its motion, the Commission requested that the supreme court issue an order to show cause why the appellant herein should not be suspended pending final determination of the allegations in the complaint and requested that the court set a time and place for the hearing. Further, the Disciplinary Commission requested that if probable cause was found at the hearing on the order to show cause, the appellant's license to practice law be suspended pending a final determination of the allegations in the complaint. The Indiana Supreme Court Rules of Admission and Discipline Rule 23 § 14(g), dictates that "(p)rocedure at the hearing shall be upon ... the complaint and the answer except that the burden of proof is on the (attorney)" to show that there is no reasonable cause to believe that he is guilty of the allegations set forth in the complaint, or else the temporary suspension will take effect.

The appellant filed an amended answer denying the allegations contained in the Verified Complaint for Disciplinary Action and raised the federal constitutional issues that the disciplinary rules violate the due process and equal protection clauses of the fourteenth amendment. The hearing officer set a date for the trial of the complaint.

Prior to the hearing, the plaintiff filed this action in the United States District Court for the Southern District of Indiana, Indianapolis Division. On the same day, the district court denied the plaintiff's motion for an order to show cause, and the plaintiff appealed from this decision. The district court later denied the plaintiff's motion for a temporary restraining order to stay the state disciplinary proceedings pending the outcome of the plaintiff's appeal. The plaintiff appeals from this order. On December 23, 1981, the district court dismissed the plaintiff's action and granted the defendant's motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b). The district court's ruling was based on the "abstention doctrine." ³ The plaintiff also appealed this order, and that appeal was subsequently consolidated with the other appeals described above.

Issues

Issue 1: Did the district court abuse its discretion in dismissing the appellant's complaint on the basis of the application of the Younger v. Harris doctrine of abstention?

The Younger Abstention Doctrine:

The central question to be decided on this appeal is whether the district court abused its discretion in dismissing the appellant's complaint on the basis of the abstention doctrine articulated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The determination of whether the Younger doctrine should be applied in any specific case requires the analysis of two separate issues. Initially, the court must determine if "the state's interest in the pending disciplinary proceedings ... (is) of sufficient importance to activate the policies underlying the doctrine of equitable restraint on the part of the federal court," (i.e., the interests of federalism and comity). Tepper v. State Bar of Wisconsin, 489 F.Supp. 115, 117 (E.D.Wis.), affirmed without opinion, 636 F.2d 1222 (7th Cir. 1980). This portion of the Younger doctrine has been referred to as "the doctrine of federal equitable restraint." Grandco Corp. v. Rochford, 536 F.2d 197, 201 (7th Cir. 1976). Where a vital state interest exists justifying abstention, a federal court should abstain unless the state law clearly bars the imposition of a constitutional claim, Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979), or the state action is brought in bad faith or for purposes of harassment.

A number of federal courts, including the district court which heard the instant case, have ruled that there is a significant and sufficient state interest in regulating the conduct of attorneys practicing in the state courts to invoke the abstention doctrine. See generally Gipson v. New Jersey Supreme Court, 558 F.2d 701 (3rd Cir. 1977); Anonymous v. Association of the Bar, 515 F.2d 427 (2nd Cir.), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975); Tepper, 489 F.Supp. at 117-118. Reasoning that the state "has a legitimate interest in determining whether (an individual) has the qualities of character and the professional competence requisite to the practice of law," Baird v. State Bar, 401 U.S. 1, 7, 91 S.Ct. 702, 706, 27 L.Ed.2d 639 (1971), these courts have found that the state has a primary responsibility in regulating the activities of attorneys licensed and practicing in their state courts because "a lawyer to practice anywhere in the United States must first be admitted to the bar of one of the states." Erdmann v. Stevens, 458 F.2d 1205, 1213 (2nd Cir. 1972).

The appellant herein does not raise in his brief the issue of whether the state's interest in regulating the conduct of attorneys is sufficient to warrant the exercise of restraint and the abstention of a federal court in an action to enjoin state disciplinary proceedings. Therefore, we hold that a state's (Indiana) interest in disciplinary proceedings against attorneys admitted and licensed to practice before their respective state courts is sufficient to invoke the Younger abstention doctrine.

The second issue to be addressed in determining whether the district court was correct in dismissing the appellant's complaint under the Younger abstention doctrine is whether any of the exceptions to the Younger rule apply to the instant case and thus favor or allow a federal court to exercise its jurisdiction. As a general rule, "(t)he accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it appears that this course would not afford adequate protection." Younger, 401 U.S. at 45, 91 S.Ct. at 751. The question of whether the state proceedings allow the plaintiff to challenge the validity...