Filed: Patrick Fisher
Filed: Patrick Fisher
PUBLISH*
APR 29 2003
PATRICK FISHER
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff,
v.
No. 01-2186
Defendants.
____________________
Clerk
THOMAS ENGLISH,
Movant - Appellant.
____________________
NATIONAL ASSOCIATION OF
ASSISTANT UNITED STATES
ATTORNEYS,
Amicus Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 95-CR-538-MV)
Submitted on the Briefs:**
Mark Jarmie and Jason Bowles, Sharp and Jarmie, P.A., Albuquerque, New Mexico, for
Movant-Appellant Thomas L. English.
David Weaver, Vinson & Elkins L.L.P., Austin, Texas, for Amicus National Association
for Assistant United States Attorneys.
Before SEYMOUR, BALDOCK and BRISCOE, Circuit Judges.
BRISCOE, Circuit Judge.
After examining the briefs and appellate record, the panel determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). We therefore ordered the
case submitted without oral argument.
**
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misrepresented the extent of its contact with and control over the witness and interfered
with defense access to her. Id. at 1292. Further, we concluded that the sanction of
suppressing the witness testimony was too severe and remanded to the district court for
consideration of lesser sanctions, such as allowing the witness to be redeposed by
defense at government expense, censuring or fining the government attorneys involved in
the misconduct, or recommending disciplinary proceedings against the government
attorneys involved. Id. at 1293.
Following remand, the Disciplinary Board of the Supreme Court of New Mexico
commenced inquiry into a complaint filed against English by defense counsel. The
Disciplinary Board, after conducting an investigation of English based on his purported
violation of the Rules of Professional Conduct in connection with Gonzales, issued an
opinion finding there was insufficient evidence to support probable cause that he had
engaged in misconduct.
Approximately nine months after the Board completed its investigation, the district
court conducted an in camera hearing to determine whether personal sanctions should be
imposed against English. By this time, the defendants in Gonzales had pled guilty and
had been sentenced. At the in camera hearing, English apologized for any actions on his
part that might have led the court to believe he was not respecting its authority. English
also submitted a copy of the Disciplinary Boards report to the court. A representative for
the defendants stated that the question of sanctions was for the court to decide and the
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defendants would make no recommendation regarding the matter. The district court
stated that the case had been difficult for all parties involved, and that English and the
other government attorneys had not made it easier with their tactics. The court also noted
that defense counsel had caused their share of problems with repeated allegations of
prosecutorial misconduct, many of which were unfounded. The court stated its belief that
everyone had learned from the experience and concluded there would be no further
sanctions imposed in this matter. Aplt. App., Exh. 10 at 619.
Approximately three months later, the district court issued an order memorializing
the in camera hearing. The order began by restating the relevant facts, and then stated:
As the Court stated from the bench, this was a very difficult and
trying case for everyone involved. However, the fact that this case was very
tense and emotional does not absolve those who are entrusted with the
power and authority of the State of their responsibilities as Officers of the
Court. Armed with the power to deprive people of their liberty, the
Government has a duty to ensure justice. The Government is not simply an
adversary. The Governments focus should not be to win at all costs, but to
advance integrity and fairness in our legal system.
While this Court does not approve of the conduct of the Government
in this case, this Court does not wish to prolong this matter any further.
Counsel for the defendants did not take a position on the sanctions this
Court is to impose. The Assistant United States Attorney has been before
the State Disciplinary Board for his conduct in this case, and has suffered
the consequences of his conduct in his community of fellow prosecutors as
well as in the defense community. The Court trusts that the Government
has learned from this experience, and in future cases will use its power not
simply to gain the best advantage, but to make decisions that advance the
fairness and integrity expected of those of us entrusted with the awesome
power to decide peoples lives. Therefore, the Court declines to impose
sanctions.
Aplt. App., Exh. 1 at 448-49. English, on his own behalf, filed a motion asking the
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district court to reconsider its order. English argued that the district courts order
constituted a criminal contempt sanction because it operated as a public censure. He also
complained that he did not receive notice that the in camera hearing would operate as a
criminal contempt proceeding, and therefore he had not been allowed to present his side
of the matter to the district court. He further argued that the only evidence before the
court were the materials he submitted and those materials mandated a finding in his favor
on the issue of misconduct. The district court denied Englishs motion in a written order
issued June 3, 2001. The court concluded its April 18, 2001, order did not sanction
English. Instead, it concluded that order simply reiterate[d] the background of the case,
stat[ed] previous findings that were made about the Governments conduct . . . and
restate[d] in written form what the Court stated from the bench (to which the Government
did not object at the time it was said). Aplt. App., Exh. 3 at 510. English seeks
appellate review of the district courts orders issued April 18 and June 3, 2001.
II.
The threshold, and ultimately determinative, issue is whether the district courts
orders rise to the level of a sanction.1 Because we conclude they do not, we in turn
conclude that English has nothing from which to appeal. In other words, we conclude
that English was not injured in the legal sense by those orders and therefore lacks
There is no doubt that the order from which English seeks to appeal is final for
purposes of 28 U.S.C. 1291, and that Englishs appeal is post-judgment.
1
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standing to appeal.
The Circuits are divided over whether a courts written decision finding attorney
misconduct, but not specifically imposing any type of sanctions (monetary or otherwise),
is appealable. On one end of the spectrum is the Seventh Circuit, which has held that an
attorney may not appeal from an order that finds misconduct but does not result in
monetary liability, despite the potential effects of the finding on the attorneys
professional reputation. See Clark Equip. Co. v. Lift Parts Mfg. Co., 972 F.2d 817, 820
(7th Cir. 1992). On the other end of the spectrum is the Fifth Circuit, which has held that
a written order finding an attorney engaged in professional misconduct, but not imposing
monetary liability or other sanctions, constitutes an appealable injury. See Walker v. City
of Mesquite, 129 F.3d 831, 832-33 (5th Cir. 1997) (stating the importance of an
attorneys professional reputation, and the imperative to defend it when necessary,
obviates the need for a finding of monetary liability or other punishment as a requisite for
. . . appeal). Other circuits lie somewhere between. See Weissman v. Quail Lodge, Inc.,
179 F.3d 1194, 1199 (9th Cir. 1999) (concluding that a formal finding of a violation of a
specific rule of ethical conduct is akin to an explicit pronouncement of a reprimand and is
thus appealable); In re Williams, 156 F.3d 86, 92 (1st Cir. 1998) (concluding that only
judicial comments expressly identified as reprimands or sanctions are appealable);
Sullivan v. Comm. on Admissions & Grievances, 395 F.2d 954, 956 (D.C. Cir. 1967)
(holding a district courts written finding that attorney violated several judicial canons,
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but declining to impose sanctions, was appealable). Although we have held that
[c]ounsel have standing to appeal orders that directly aggrieve them, Weeks v. Indep.
Sch. Dist., 230 F.3d 1201, 1207 (10th Cir. 2000), we have not decided whether an
attorney is directly aggrieved by an order simply finding misconduct on his or her part.
We find it unnecessary to decide the issue here given the facts of this case. Even if
we were to adopt the Fifth Circuits position in Walker, i.e., that a written finding of
professional misconduct is sufficient to provide an attorney standing to appeal, it is
apparent there was no such finding in the orders that English now seeks to challenge. In
its April 18, 2001, order, the district court reviewed its earlier findings and stated that the
governments focus should not be to win at all costs but to advance integrity and fairness
in the legal system. The court stated that it did not approve of the governments conduct
and hoped it had learned from the experience, and in the future would use its power not to
gain the best advantage, but to make decisions which would advance fairness and
integrity. Importantly, and contrary to Englishs assertions, the district court made no
new factual findings in its order, and instead restated its earlier findings (made in
1997). Although English argues the courts restatement of its earlier findings constitutes
a reimposition of sanctions, he cites no authority for this proposition other than an
obscure reference to defamation law which has no bearing on this case. Likewise, there
were no new findings of misconduct in the courts June 3, 2001, order rejecting
Englishs motion for reconsideration.
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As a final matter, we reject the dissents suggestion that English was previously
unable to fully contest this matter or was otherwise denied due process. Dissent at 16.
When the district court issued its original suppression order, the government filed a
timely interlocutory appeal challenging that order. Although the district courts order
included findings of misconduct on the part of English, English did not timely seek to
intervene in the governments interlocutory appeal in order to challenge those findings,
but instead waited to file a motion to intervene after this courts decision was issued. See
generally Penthouse Intl Ltd. v. Playboy Enterprises, Inc., 663 F.2d 371, 385-86, 392 (2d
Cir. 1981) (allowing an attorney to intervene on appeal to contest the district courts
finding of misconduct which was part of its reasoning in dismissing a complaint for
discovery abuses). On remand, English made no effort to seek an evidentiary hearing, but
instead proffered the record of the state disciplinary proceeding in an attempt to rebut the
district courts findings that he had engaged in misconduct. Further, English made no
attempt to appeal the findings of misconduct (i.e., those contained in the district courts
suppression order) after final judgment was entered by the district court. See generally
Cunningham v. Hamilton County, 527 U.S. 198, 209-10 (1999) (concluding that sanction
orders are typically appealable only after final judgment is entered).
The appeal is DISMISSED.
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The order criticized both the Government and Attorney English. Upon the Governments
motion to reconsider, the court entered a 119-page order suppressing the witness
statements and barring her testimony.
On interlocutory appeal pursuant to 18 U.S.C. 3731, this Court upheld
the district courts decision to sanction the Government, repeatedly specifying English
by name, for what, in the Courts opinion, were obvious violations of district court
discovery orders directing the Government to provide face-to-face access to its
confidential witnesses.1 The opinion described the Governments conduct as the
As we acknowledged in Gonzales, 164 F.3d at 1291, the Federal Rules of
Criminal Procedure do not require such face-to-face encounters. See Fed. R. Crim. P.
16. Indeed, criminal defendants are entitled to rather limited discovery under federal law.
See Degen v. United States, 517 U.S. 820, 825 (1996). The record in this case, however,
reveals the district court, in its supervisory power, entered discovery orders exceeding
the requirements of the federal discovery rules which the Government never challenged
on appeal. The district court admitted the Governments discovery obligations here are
not based on Rule 16. In addition to requiring the aforesaid encounters, the district
court, for instance, required the Government to provide defense counsel addresses and
in-person access to witnesses who had been placed in the Witness Security Program to
protect them from Defendants. The court further required the Government to provide
defense counsel, within two days of an interview, any information that an agent had
obtained from a person about the case regardless of whether the Government intended
to use that person as a witness or had prepared a report. But see id. (criminal defendants
have no general right to obtain statements of Government witnesses before they testify).
Such a requirement may very well contravene the mandatory language of the Jencks Act,
18 U.S.C. 3500. While a criminal court possesses some inherent discovery power, see,
e.g., United States v. Golyansky, 291 F.3d 1245, 1248-49 (10th Cir. 2002) (upholding
discovery order requiring disclosure of Brady material as it became available), such
power is not unlimited. The Supreme Court has explained it is well established that
even a sensible and efficient use of the supervisory power is invalid if it conflicts with . . .
statutory provisions. To allow otherwise would confer on the judiciary discretionary
power to disregard the considered limitations of the law it is charged with enforcing.
1
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product of flagrant bad faith and noted Defendants ability to prepare for trial was
prejudiced by the governments obstruction of access to the subject witness. Gonzales,
164 F.3d at 1292. But the Court did not share the district courts view that prejudice
to Defendants was irreparable. The Court therefore reversed the district courts choice
of the most severe available sanction, i.e., complete suppression of the witness
statements and trial testimony, and remanded for consideration of less severe sanctions
including possible censure or referral to disciplinary authorities. Id. at 1292-93.
The Government moved unsuccessfully for panel rehearing, arguing the Court
relied on inaccurate facts in citing Attorney English for misconduct. English also filed
an unsuccessful pro se motion for leave to intervene before this Court. In his motion,
English argued (1) he had not been a party before the district court; (2) he had no notice
this Court would censure him so harshly; (3) he was not represented by counsel; and
Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988) (internal brackets,
ellipses, quotations, and citations omitted); see also United States v. Widgery, 778
F.2d 325, 329 (7th Cir. 1985) (Easterbrook, J.) (The supervisory power is part of
the common law, and no court has a common law power to disregard a rule or statute
that was within the authority of Congress to enact.); United States v. Simpson, 927
F.2d 1088, 1090 (9th Cir. 1991) (Kozinski, J.) (The supervisory power simply does
not give the courts the authority to make up the rules as they go, imposing limits on
the executive according to whim or will.). This Circuit has not addressed to what
extent a district court possesses supervisory power in criminal matters to order
discovery beyond the limits of Rule 16 or other federal law. Cf. United States v.
United States District Court, 717 F.2d 478, 480-82 (9th Cir. 1983) (Kennedy, J.,)
(holding the Freedom of Information Act did not extend the scope of discovery
under Fed. R. Crim. P. 16 and issuing a writ of mandamus directing the district
court to limit discovery consistent with Rule 16).
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(4) he had been unable to defend his interest in his professional reputation because the
Government feared he would become a witness and thus unable to continue as lead
prosecutor in the case.
Following remand, the Disciplinary Board of the Supreme Court of New
Mexico commenced inquiry into the matter on the complaint of defense counsel.
Over the course of nearly a year, the Board conducted, consistent with due process,
a complete investigation of Attorney English based on his purported violation of
numerous Rules of Professional Conduct in connection with Gonzales. See, e.g.,
N.M. Rules Ann. 16-303 (Candor toward the tribunal); 16-304 (Fairness to opposing
party and counsel); 16-404 (Dealing with unrepresented persons); 16-804 (Misconduct).
The Board concluded the evidence was insufficient to support a finding of probable
cause that Attorney English had engaged in misconduct before the district court. In a
report favorable to Attorney English, a copy of which is attached hereto as an
Appendix, the Chief Disciplinary Counsel for the Board found, among other things, that
English did not make knowing misrepresentations to the district court and did not
interfere with defense counsels access to the subject witness.2 The report further found:
Mr. English did as much as was humanly possible to comply with the courts discovery
orders and facilitate the exchange of information. Disciplinary Counsel wrote:
Although the report originally was confidential, Attorney English has made it a
part of the public record in this case.
2
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Compare Bolte v. Home Ins. Co., 744 F.2d 572 (7th Cir. 1984). In Bolte, the
district court found two insurance defense attorneys had concealed a defense witness
identity and statements. The court described their conduct as reprehensible, but
imposed no formal sanction upon them. The Seventh Circuit dismissed the attorneys
direct appeal for lack of a final decision. Judge Posner broadly reasoned, perhaps
correctly in the abstract, that Congress, in making final decisions of district courts
appealable in 28 U.S.C. 1291, [did not] mean[] to allow people who were not even
parties to a lawsuit in the district court to appeal from a wounding or critical or even
palpably injurious comment or finding by a district judge. Id. at 573. Boltes reasoning,
which may reflect distaste for the [attorneys] position or lack of concern with injury
of the nature alleged has been labeled dubious. 15A Charles A. Wright, Arthur R.
Miller, & Edward H. Cooper, Federal Practice and Procedure 3902.1, at 130-31 &
n.52 (1992). Given Boltes holding, the court did not definitively resolve whether the
stigma of being accused by a federal judge of reprehensible conduct is [in itself] injury
enough to satisfy the standing requirement in Article III of the Constitution. Bolte,
5
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A.
As the Court notes, the circuits are divided over whether a courts written decision
finding attorney misconduct alone, though not formally labeled a sanction, is appealable.
In a case similar to this, the D.C. Circuit held a written order finding an attorney violated
ethical rules, but not formally imposing sanctions, constituted an appealable injury.
Sullivan v. Committee on Admissions and Grievances, 395 F.2d 954 (D.C. Cir. 1967)
(Burger, J.). As in this instance, the District Court concluded for appropriate reasons
not to impose sanctions in this case. However, the District Court . . . determined that
[the attorney] was guilty of proscribed conduct and this determination plainly reflect[ed]
adversely on his professional reputation. . . . The D.C. Circuit concluded this
reputational damage gave the attorney standing to appeal. Id. at 956.
The Fifth Circuit reached a like conclusion in another similar case. In Walker
v. City of Mesquite, 129 F.3d 831, 832 (5th Cir. 1997), the district court found an
attorney engaged in blatant misconduct by violating his obligation of candor to the
court. Like here, the court levied no other sanction against the attorney. Rejecting the
744 F.2d at 573. The court suggested it might by analogy to the injury on which the
tort of defamation is based. Id. Similarly, the Seventh Circuit decision which the Court
cites, Clark Equip. Co. v. Lift Parts Mfg. Co., 972 F.2d 817, 820 (7th Cir. 1992), did not
turn on standing but rather relied exclusively on Bolte (i.e., the lack of a final decision) to
hold an attorney may not appeal from an order that finds misconduct but does not result
in monetary liability, despite the potential reputational effects. The Federal Circuit
recently questioned both Bolte and Clark Equipment. Precision Specialty Metals, Inc.
v. United States, 315 F.3d 1346, 1350-53 (Fed. Cir. 2003) (holding a courts formal
reprimand of an attorney for misconduct appealable).
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argument that an attorneys diminished reputation was not a cognizable injury for
purposes of appeal, the Fifth Circuit wrote:
In the case at bar [the attorney] was reprimanded sternly and found guilty
of blatant misconduct. The reprimand must be seen as a blot on [the
attorneys] professional record with a potential to limit his advancement
in governmental service and impair his entering into otherwise inviting
private practice. We therefore . . . hold that the importance of an attorneys
professional reputation, and the imperative to defend it when necessary,
obviates the need for a finding of monetary liability or other punishment
as a requisite for appeal of a court order finding professional misconduct.
Id. at 832-33.
Taking a different approach, a divided panel of the First Circuit disagreed with the
Fifth Circuit in In re Williams, 156 F.3d 86 (1st Cir. 1998). The district court affirmed
the factual finding of the bankruptcy court that two government tax attorneys failed to
comply with discovery requests. The bankruptcy court harshly criticized the attorneys,
characterizing their conduct as obstructionist and unjustified. Id. at 88. The First
Circuit dismissed the attorneys appeal, holding [w]ords alone constitute an appealable
sanction only if they are expressly identified as a reprimand. Id. at 92.
Mindful that every pejorative expression or criticism by a court of a lawyer is
not subject to appeal, the dissent viewed the bankruptcy courts words as not a mere
finding of fact, but an ultimate statement of censure, intended to punish counsel. Id.
at 96 (Rosenn, J., dissenting). The dissent protested: Denying [attorneys] the right to
an appeal in a matter impugning their character, competence or integrity . . . and which
publicly and harshly censures them merely because the chastisement is not expressly a
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misconduct can cast dark shadows over an attorneys career. See, e.g., McBryde v.
Committee to Review Circuit Council Conduct, 264 F.3d 52, 81 (D.C. Cir. 2001) (noting
that an attorneys interest in an untarnished reputation is greater than the mere loss of
money.). Accordingly, I reject the proposition that before an order asserting counsels
ethical misconduct constitutes an appealable sanction, a court must either impose
monetary penalties or label findings of such misconduct a formal reprimand or censure.
Stripped to essentials this proposition would maintain that an attorney has more of a
reason and interest in appealing the imposition of a $100 fine than appealing a finding
and declaration by a court that counsel is an unprofessional lawyer prone to engage in
blatant misconduct. Walker, 129 F.3d at 832. Monetary sanctions only affect ones
bank account; linguistic sanctions can pierce the heart and reputation of the lawyer
at whom they are aimed and, in the long run, probably will strike the lawyers bank
account as well. Williams, 156 F.3d at 97 (Rosenn, J., dissenting).
In no way do I mean to imply that every negative comment or observation
from a judges pen about an attorneys conduct or performance is appealable. See, e.g.,
Weissman, 179 F.3d at 1199. It is not. But demanding the requisite formality the First
Circuit imposed in Williams simply is unfair to the overwhelming majority of attorneys
who conduct themselves in accordance with rules of professional responsibility and ably
serve as officers of the court. Under Williams rationale, a court presumably could find
an attorney engaged in outrageous, even felonious misconduct, while insulating its
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courts words are especially damaging to the attorneys reputation and perhaps
unjustified. This is because an attorney appealing a reprimand takes the risk that
this court, reaching the merits, will agree that the sanction is justified thus giving
the sanction far more force than it would have had if it had come from a trial judge
unendorsed by a reviewing court. Williams, 158 F.3d at 51 (Lynch, J., dissenting from
denial of rehg en banc).
C.
Unlike the Court, I conclude the district courts unequivocal language
in its written orders on remand constitutes a sanction sufficiently injurious to Attorney
Englishs professional reputation to provide him standing to appeal. See Weeks v.
Independent Sch. Dist. No. I-89, 230 F.3d 1201, 1207 (10th Cir. 2000) (Counsel have
standing to appeal orders that directly aggrieve them.).6 The Courts conclusion that
the district courts two post-judgment orders made no new factual findings of
misconduct, Courts Op. at 8, seems patently unfair given that Attorney English was
previously unable to fully contest this matter. See supra at 4. Moreover, the Courts
decision disregards our duty to review questions of ethical misconduct within the
The district court in Weeks disqualified plaintiffs counsel from participating
in the litigation due to improper ex parte communications. We held counsel had standing
to appeal the disqualification order based on injury to her professional reputation. The
disqualification order is a sanction directly affecting [counsel], and a favorable court
decision would likely provide at least some redress from the injury from the sanction
because it could help ameliorate the damage to her professional reputation from the
sanction order. Weeks, 230 F.3d at 1207.
6
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parameters of due process. To be sure, the courts orders state no sanction shall issue.
See Sullivan, 395 F.2d at 956. A careful reading of the orders, however, convinces me
that their substance trumps their form. See Bolte v. Home Ins. Co., 744 F.2d 572, 573
(7th Cir. 1984) ([A]lthough sanctions in the usual sense were not imposed, the judges
refusal to vacate his earlier finding of misconduct imposed or confirmed a sanction of
sorts, in a realistic though not formal sense, on the lawyers.).
Without explanation, the district courts orders all but ignore the New Mexico
Supreme Court Disciplinary Boards findingsfindings made after full and fair
investigation. The district courts written orders plainly reprimand Attorney English
a second time for blatant ethical misconduct and an abuse of power. While not referring
specifically to English by name or citing the applicable rules of professional conduct,
the court refers to misrepresentations made in open court . . . by lead Government
counsel that interfered with Defendants court-ordered access to [the subject witness].
By all accounts, the district court engaged in more than routine judicial commentary.
Talao, 222 F.3d at 1137. No citation to authority is necessary to conclude that such
misrepresentation violates long established rules of professional conduct. Insistence
upon candor to the court is perhaps the most important ethical precept of all.7
The district court further notes Attorney English used his power simply to gain
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the best advantage, and consequently suffered for his misconduct: The Assistant
United States Attorney has been before the State Disciplinary Board for his conduct in
this case, and has suffered the consequences of his conduct in his community of fellow
prosecutors as well as in the defense community.8 The district courts orders served not
only to emphasize the courts prior findings of ethical misconduct and to illustrate the
courts disagreement with the Disciplinary Boards contrary findings, but also to
strike another blow to Attorney Englishs professional reputation. And yet this Court
concludes Attorney English was not sufficiently injured to provide him standing to
appeal. The language of the district courts orders did much more than memorializ[e][]
the in camera hearing. Courts Op. at 5. The orders adjudge Attorney English unethical.
For these reasons, I believe Attorney English has standing to maintain this appeal, and
now proceed to the merits.
III.
Matters of attorney discipline by their very nature often come to us
outside the common adversarial context. I am mindful that no one has recorded
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opposition to Attorney Englishs request for relief in this case, and thus I proceed
cautiously. The proper starting point is to consider the source of the district courts power
to sanction Attorney English for noncompliance with pretrial discovery orders extending
beyond the requirements of criminal rules and statutes. See Gonzales, 164 F.3d at 1291
(noting Fed. R. Crim. P. 16 is inapplicable here because it does not require the
government to make its witnesses available for defense interviews.).
A.
Assuming the district court legitimately imposed such orders (a question not
before the Court, see supra n.1), the courts ability to enforce those orders rests in its
inherent power. Whether exercised in a civil or criminal context, [t]he inherent
powers of federal courts are those which are necessary to the exercise of all others.
Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980). Because inherent powers
are shielded from direct democratic controls, they must be exercised with restraint
and discretion. Id.
The extent of these powers must be delimited with care, for there is a
danger of overreaching when one branch of the Government, without
benefit of cooperation or correction from others, undertakes to define
its own authority. In many instances the inherent powers of the courts
may be controlled or overridden by statute or rule. Principles of deference
counsel restraint in resorting to inherent power, and require its use to be
a reasonable response to the problems and needs that provoke it.
Degen v. United States, 517 U.S. 820, 823-24 (1996). The conceded power of federal
district courts to supervise the conduct of attorneys should not be used as a means to
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all the procedural safeguards necessary to ensure a fair decision. This Court should not
lightly disregard the Disciplinary Boards findings and conclusions made after thorough
inquiry where our prior decision was based on a limited record.9 While not conclusively
binding on a federal court, a state supreme courts determination in a disciplinary matter
brings title deeds of high respect. Theard v. United States, 354 U.S. 278, 282 (1957).
Andrew L. Kaufmann, Judicial Ethics: The Less-Often Asked Questions, 64 Wash. L.
Rev. 851, 864 (1989), provides the proper perspective:
Public criticism of a lawyer in an opinion in which the court does not
undertake the job of fact-finding with all the procedural safeguards
involved in a disciplinary proceeding may destroy or severely damage
a lawyers reputation. When the lawyer has no chance to defend, the mere
mention of the fact of reference to disciplinary authorities is problematic,
especially if accompanied by an unfavorable characterization of the
lawyers conduct.
A court that has the power but is unwilling to undertake the disciplinary process itself,
either directly or through a master (or other body appointed by it), should be very
Whether the law of the case doctrine applies to questions of fact is uncertain.
Johnson v. Champion, 288 F.3d 1215, 1226 (10th Cir. 2002). Even if the doctrine does
apply to such questions, however, I do not believe it binds the Court in this case given
the intervening change in circumstances, namely the Disciplinary Boards findings and
conclusions. Law of the case principles are not absolute. See Kennedy v. Lubar, 273
F.3d 1293, 1299 (10th Cir. 2001). The doctrine is to be applied at the sound discretion
of the court to effectuate the proper administration of justice. United States v. GamaBastidas, 222 F.3d 779, 785 (10th Cir. 2000) (internal quotations omitted). Reasons
for departing from the law of the case include (1) an intervening change in controlling
law, (2) the availability of new evidence, (3) the need to correct clear error, and (4) the
need to prevent manifest injustice. See Kennedy, 273 F.3d at 1299 n.6. Given the
Boards findings, the latter three reasons seem particularly relevant here.
9
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courts orders herein dated April 18, 2001 and June 3, 2001 as beyond its inherent
authority. I would direct that the district courts statement following the in camera
hearing on January 26, 2001 that [t]here will be no further sanctions imposed in
this matter serve as its final order in this matter.
Accordingly, I dissent.
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