U.S. v. Wunsch

• Decision Date: 28 April 1995
• Docket Number: No. 93-50671,93-50671
• Citation: 54 F.3d 579
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William WUNSCH; Beverly Wunsch; Teri Lee Sowers, Defendants, and Frank L. Swan, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 579

54 F.3d 579

63 USLW 2771

UNITED STATES of America, Plaintiff-Appellee, v. William WUNSCH; Beverly Wunsch; Teri Lee Sowers, Defendants and Frank L. Swan, Respondent-Appellant.

No. 93-50671.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 3, 1994.

Decided April 28, 1995.

Carol A. Sobel, ACLU Foundation of Southern California, Los Angeles, CA, for respondent-appellant.

Paul L. Seave, Asst. U.S. Atty., Sacramento, CA, for plaintiff-appellee.

Lynn Hecht Schafran, NOW Legal Defense and Educ. Fund, New York City, for the amici curiae.

Roberta M. Ikemi, California Women's Law Center, Los Angeles, CA, for the amici curiae.

Appeal from the United States District Court for the Central District of California.

Before: BROWNING, FARRIS, and LEAVY, Circuit Judges.

LEAVY, Circuit Judge:

In this case we are called upon to determine whether a male attorney was properly sanctioned by the district court for displaying gender bias in a letter sent to a female attorney following the male attorney's disqualification from the underlying action. We reverse.

FACTS ¹ AND PRIOR PROCEEDINGS

This matter arose during the course of a criminal tax prosecution brought by the United States against three defendants, William and Beverly Wunsch and their daughter, Teri Sowers. ² Shortly after Sowers's arrest by federal agents on March 18, 1993, Frank Swan telephoned Assistant United States Attorney Elana Artson, counsel for the United States. Swan, who identified himself as counsel for Sowers, asked about the charges pending against his client and the conditions for her release. Swan also told Artson that he would be unable to attend Sowers's bail hearing that afternoon, but would send another attorney, Gerald Wilson, in his stead.

On March 24, 1993, Artson moved to disqualify Swan and co-counsel Wilson, arguing that their representation of both Sowers and the Wunsches (who were at that time targets of a grand jury investigation and likely defendants in an anticipated superseding indictment) amounted to a conflict of interest. In a memorandum in opposition filed five days later, Sowers argued that, because Swan had represented her and her parents since November 1990 in connection with the Internal Revenue Service civil audit, summons enforcement hearings, and subsequent criminal investigation, disqualifying Swan would adversely affect Sowers's ability to present an effective defense. Sowers also declared that she and her parents were prepared to waive any conflict.

On March 29, 1993, Artson filed a supplement to the government's original motion, noting as a further ground for disqualification that Swan had previously represented two accountants during the course of the Wunsch/Sowers criminal investigation, and that the government intended to call these accountants as witnesses during the prosecution's case-in-chief.

On April 5, 1993, the district court conducted a hearing on the government's disqualification motion. Both Swan and Wilson appeared and argued against the motion, and the Wunsches, Sowers, and one of the prospective government witnesses testified. The district court granted the motion at the conclusion of the hearing, finding that a serious potential for conflict of interest existed because of Swan's joint representation of Sowers and the Wunsches, as well as his prior representation of the two accountants whom the government intended to call. Sowers filed a motion for reconsideration four days later.

The following week (i.e., April 15, 1993), a federal grand jury handed down a 14-count superseding indictment containing additional charges against Sowers as well as new charges against the Wunsches. On April 20, 1993, Artson filed a motion to disqualify Swan and Wilson from representing the Wunsches. No opposition to this motion was filed, and on April 28, 1993, the district court granted the motion to disqualify and denied the motion to reconsider.

On May 6, 1993, Artson received a letter from Swan. The letter was dated May 3, 1993, and read as follows:

Dear Elana:

I have something here that I think applies to you.

Your disqualification of Wilson and me was neither just nor fair to the defendants. Surely, it serves your interests because now it will be easy for you.

Very truly yours,

/s/ Frank Swan

FRANK L. SWAN, INC.

Appended to the letter was a single sheet of paper with the following photocopied words, all enlarged and in capital letters:

MALE LAWYERS PLAY BY THE RULES, DISCOVER TRUTH AND RESTORE ORDER. FEMALE LAWYERS

ARE OUTSIDE THE LAW, CLOUD TRUTH AND DESTROY ORDER. ³

On May 10, 1993, Assistant United States Attorney Paul Seave filed a motion on behalf of the government, asking the court to impose a penalty against Swan for having violated Rules 2.5.1 ⁴ and 2.5.2 ⁵ of the Local Civil Rules of Practice for the United States District Court, Central District of California ("Local Civil Rules" or "Rules"). In his opposition filed May 21, 1993, Swan argued, inter alia, that the court lacked disciplinary authority over him because he had never appeared in the criminal case and his conduct was not sufficiently connected to the litigation before the court; his comments were protected speech under the First Amendment, and did not run afoul of the Local Civil Rules; and he should not be sanctioned for having criticized another attorney in a private communication. The government filed its reply on May 28, 1993. Following oral argument on June 7, 1993, the court took the matter under advisement.

On September 13, 1993, the district court filed its Memorandum Opinion on Order Sanctioning Attorney for Gender-Based Discrimination. See Matter of Swan, 833 F.Supp. 794 (C.D.Cal.1993). In its opinion the court held that Swan's conduct in sending the letter with its attachment to Artson violated several local rules and warranted the imposition of sanctions. 833 F.Supp. at 798-99 & n. 6. The court ordered Swan to send a letter of apology to Artson, and referred the matter to the Central District's Standing Committee on Discipline for any action it might deem appropriate. Id. at 800. Swan has timely appealed, arguing that the district court lacked jurisdiction to sanction him, and the court's authority relied upon for imposing the sanction was unconstitutional.

ANALYSIS

Standard of Review

With respect to a district court's decision to impose sanctions against an attorney, "This court reviews findings of historical fact under the clearly erroneous standard, the determination that counsel violated [the Local Civil Rules] under a de novo standard, and the choice of sanction under an abuse of discretion standard." Warren v. Guelker, 29 F.3d 1386, 1388 (9th Cir.1994) (per curiam) (citations omitted). In all such cases, "Legal and constitutional questions are reviewed de novo. In cases ... raising First Amendment issues, an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." United States Dist. Court for the E. Dist. of Wash. v. Sandlin, 12 F.3d 861, 865 (9th Cir.1993) (internal quotations and citations omitted).

Discussion

The district court cited as authority for its disciplinary action Local Civil Rules 2.2.6, ⁶ 2.5.1, and 2.5.2, section 6068(f) ⁷ of California's Business and Professions Code, "and the Court's inherent power[.]" Matter of Swan, 833 F.Supp. at 799 n. 6. Swan challenges each of these grounds on appeal.

With respect to the last ground, viz., the court's inherent power, we note that an attorney admitted to a particular bar may be disciplined for conduct that violates that bar's local rules of professional conduct. See Standing Comm. on Discipline of the United States Dist. Court for the S. Dist. of Cal. v. Ross, 735 F.2d 1168, 1170 (9th Cir.), appeal dism'd & cert. denied sub nom. Frontier Properties v. Elliott, 469 U.S. 1081, 105 S.Ct. 583, 83 L.Ed.2d 694 (1984). This power to discipline is not limited to conduct that occurs within the course of litigation. See Western Sys., Inc. v. Ulloa, 958 F.2d 864, 873 (9th Cir.1992) (as amended), cert. denied, --- U.S. ----, 113 S.Ct. 970, 122 L.Ed.2d 125 (1993). As the district court had the requisite jurisdiction to discipline Swan for violations of its rules, the questions before us are whether the district court had the authority under its local rules to discipline Swan and, if so, whether Swan's conduct amounted to a violation of one or more of the Local Civil Rules cited to and relied upon by the district court. Each of these issues will be examined in turn.

I. Local Civil Rule 2.2.6

Swan first argues that his removal from the case also removed him from the reach of Local Civil Rule 2.2.6, the basis upon which the district court relied in asserting disciplinary authority. See Matter of Swan, 833 F.Supp. at 797. The government contends (and the district court implicitly held) that, pursuant to Rule 2.2.6, once Swan had appeared in the underlying criminal proceeding he remained within the reach of the court's disciplinary authority for as long as the litigation continued, regardless of his disqualification. ⁸

Rule 2.2.6 provides that "Any attorney who appears for any purpose submits to the discipline of this Court with respect to conduct of the litigation" (emphasis added). It is clear from this language that, for purposes of Rule 2.2.6, an attorney becomes subject to the disciplinary authority of the district court only when two conditions are met: First, the attorney must actually appear before the court; ⁹ and second, the behavior for which he is disciplined must have some nexus with the conduct of the litigation before the court.

A. Appearance

Swan argued before the district court, and continues to assert on appeal, that, as he never formally entered an appearance on behalf of either Sowers or the Wunsches in the underlying criminal proceeding, he never "appeared" before ...