U.S. v. Stoneberger, 85-2544
| Decision Date | 11 December 1986 |
| Docket Number | No. 85-2544,85-2544 |
| Parties | UNITED STATES of America, Plaintiff/Appellee, v. Ernest STONEBERGER, Defendant, and James L. Buchanan II, Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David Stanton Maynihan, William Maddox, Ruth L. Cohen, Asst. U.S. Attys., Las Vegas, Nev., for plaintiff/appellee.
James L. Buchanan, II, Las Vegas, Nev., pro per.
Appeal from the United States District Court for the District of Nevada.
Before ALARCON, BOOCHEVER, and REINHARDT, Circuit Judges.
Defense attorney Buchanan appeals the decision and order of the district court suspending him from practice in the United States District Court, District of Nevada, for one year because of his failure to appear at the time set for trial of a criminal case. He contends that suspension was not authorized, and alternatively was too severe a sanction. Because suspension from practice was not authorized for tardiness we reverse and remand.
Appellant James L. Buchanan II was the defense attorney in United States v. Stoneberger, Magistrate Nos. 10-84-2111M and 10-84-2112M. Stoneberger had been charged with misdemeanor driving offenses in the Lake Mead National Recreation Area, and his trial was scheduled for December 19, 1984, at 10:00 a.m. Buchanan was forty minutes late in arriving for trial on December 19, 1984, and the matter was rescheduled for April 3, 1985, at 1:30 p.m. Buchanan was sanctioned $100.00 for his tardiness and required to reimburse the government $110.00 in witness fees.
Buchanan failed to appear for Stoneberger's trial on April 3, 1985. The court was advised by Buchanan's office that he was ill. The trial and any proceedings regarding sanctions were continued until April 10, 1985, at 10:00 a.m.
On April 10, 1985, Buchanan was thirty-three minutes late. Buchanan was advised that a hearing to show cause why sanctions should not be imposed would be held on April 17, 1985, and that he might wish to retain counsel to represent him. The court then proceeded with the trial in Stoneberger and the defendant was convicted.
At the close of the Stoneberger trial, Buchanan asked the court to consider the matter of sanctions. The court again advised Buchanan that the charges were serious and he might want to retain counsel. Buchanan responded that he wished to proceed immediately. The court asked Buchanan why he was thirty-five minutes late. Buchanan explained that he was late because he had been in state court handling other matters. The magistrate noted that Buchanan had been tardy in other cases. Accordingly, he recommended that Buchanan be suspended from practice before the district court for one year and assessed witness fees in the amount of $78.00. The district court adopted the magistrate's findings and ordered Buchanan suspended for one year and assessed witness fees in the amount of $78.00.
We must decide whether the district court had authority to impose the sanction of suspension without a finding that Buchanan wilfully violated its orders.
For a sanction to be validly imposed, the conduct in question must in fact be sanctionable under the authority relied upon. In re Yagman, 796 F.2d 1165, 1182-83 (9th Cir.1986). The district court apparently relied on the Local Rules of Practice of the United States District Court, District of Nevada, as authority for imposing the sanctions. At the time involved, Local Rule 13 provided that:
In the event an attorney without just cause:
(a) fails to appear when his case is before the court on motion, for pre-trial conference, or trial, ...
the court may, after notice and opportunity to be heard, impose any and all sanctions authorized by statute or rule including the imposition of fines, costs or attorney's fees as may be within the power of the court.
Under Local Rule 4(h)(2)(i),
[a]ny member of the bar of this court, for conduct unbecoming a member of the bar, may be disbarred, suspended from practice for a definite time, reprimanded or subjected to such other discipline as the court may deem proper.
Rule 13 applies where an attorney fails to appear when his case is before the court. Buchanan was late on the last two occasions and on another did not appear at all, although his office notified the court that he was ill. 1 Rule 13 reasonably applies to tardiness in addition to absence, because in either event the attorney fails to appear when the case is scheduled for hearing. The rule authorizes the imposition of monetary sanctions. Thus, the assessment of a fine is clearly authorized under Rule 13. That rule, however, does not expressly include a suspension from practice as a sanction. If authority exists under Rule 13 for such a suspension it must therefore be under the provision for "all sanctions authorized by statute and rules".
The government relies on Local Rule 4(h)(2)(i) which authorizes suspension from practice when the attorney's conduct is "unbecoming a member of the bar." That type of conduct, however, is generally more serious than tardiness. The First Circuit in In re Bithoney, 486 F.2d 319 (1st Cir.1973) held that filing nine petitions for review in immigration cases, some of which were not diligently pursued, and none of which raised any substantial issue on review, constituted "conduct unbecoming a member of the bar of the court." Similarly, in In re Abrams, 521 F.2d 1094 (3rd Cir.), cert. denied, 423 U.S. 1038, 96 S.Ct. 574, 46 L.Ed.2d 413 (1975), an attorney was engaged in conduct unbecoming a member of the bar when he issued a check ultimately used to bribe New Jersey officials. In a case analogous to Buchanan's, the Seventh Circuit in In re Harte, 701 F.2d 62 (7th Cir.1983), held that it had the power under Fed.R.App.P. 46 to suspend a lawyer for "conduct unbecoming a member of the bar or for failure to comply with ... any rule of the court." Even though the court had power to suspend under the appellate rule it decided that suspension was too drastic a sanction for repeated failures to file an appellate brief on time. Instead the court imposed a public reprimand. While untimeliness in filing a brief usually does not involve the same inconvenience to the court, parties, and witnesses as failure to be...
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