Disciplinary Deference: Ninth Circuit Defers to, Reciprocates California's Disbarment of Attorney Practicing before Federal Agency
LACBA Update, June/July 2004
By Jeremy E. Pendrey, member, LACBA Professional Responsibility and Ethics Committee. Pendrey is a partner at Alschuler Grossman Stein & Kahan LLP in Santa Monica. The opinions expressed are his own.
California attorneys practicing exclusively before a federal agency know that they must follow that agency's rules of conduct. But are those attorneys also subject to California's disciplinary rules, including the Rules of Professional Conduct and the State Bar Act codified in the Business & Professions Code? In Gadda v. Ashcroft, 04 C.D.O.S. 2803 (9th Cir. April 1, 2004), the Ninth Circuit Court of Appeals confirmed that California can disbar a California attorney practicing only before federal courts and agencies.
Miguel Gadda's practice consisted entirely of federal immigration cases. He was licensed to practice law before all immigration courts. He was also licensed to practice in California.
Gadda committed at least 17 acts of misconduct over six years. Gadda failed to appear at scheduled court conferences. Five of Gadda's clients were ordered deported in absentia. At least six courts found Gadda to have provided ineffective assistance. In one case, Gadda's misconduct resulted in the deportation of the minor children of a naturalized U.S. citizen. In the same representation, he left children unrepresented in an immigration hearing. He later advised them to sign a form requiring them to voluntarily depart the United States.
On January 22, 2003, the Supreme Court of California disbarred Gadda from practice in California. On July 8, 2003, he was expelled from practice in immigration proceedings based substantially on his prior California disbarment. On appeal in federal court, Gadda argued that the Ninth Circuit should enjoin his state court disbarment because the Supreme Court of California lacked jurisdiction to discipline him. He claimed that federal law preempted the state's authority to regulate attorneys, like him, who practice only immigration law.
Federal law may preempt state law in three ways: (1) express preemption, (2) field preemption, and (3) conflict preemption. Express preemption occurs when Congress states that it is preempting state law. No such statute existed in Gadda's case nor was there any conflict between federal and state disciplinary schemes.
Field preemption occurs when the federal statutory scheme is so comprehensive that Congress left no room for states to regulate the area. Gadda argued that federal immigration regulations preempted the field of disciplining attorneys practicing exclusively in immigration proceedings and left California without the power to disbar him. To support his field preemption argument, Gadda cited federal regulations stating that it is imperative to have a uniform disciplinary system among the respective immigration courts. The regulations also state that the immigration court should not be expected or required to apply numerous local rules, or local interpretations of rules, to problems that require national uniformity. The regulations state that "[a]pplying local rules and local interpretations in lieu of the national standard would leave immigration attorneys in one state subject to discipline, while possibly exempting immigration attorneys in another state."
The Ninth Circuit found that immigration disciplinary rules do not preempt the field of attorney discipline. To the contrary, the court found that the regulations required cooperation between the federal immigration and state disciplinary processes.1 In fact, immigration regulations require attorneys practicing in immigration proceedings to be in good standing as a member of a state bar.
The court also considered whether to disbar Gadda from practicing before the Ninth Circuit. Federal Rule of Appellate Procedure 46 provides that a member of the Ninth Circuit's bar may be suspended or disbarred if the member either has been suspended or disbarred from practice in another court or is guilty of conduct unbecoming a member of the court's bar.
The court stated that although it was not conclusively bound by the state bar decision, it would "extend great deference to the state bar court's determination unless our independent review reveals one of the following conditions: (1) a lack of due process; (2) insufficient proof of attorney misconduct; or (3) some other grave reason exists that should prevent the court from recognizing the state court's determination." The court put the burden on Gadda to demonstrate through clear and convincing evidence that one of these conditions existed. The court presumed the correctness of the state bar court's factual findings. Based on this deferential test, as well as exercising its independent authority to disbar an attorney for conduct unbecoming a member of the bar, the court disbarred Gadda from practicing before the Ninth Circuit.
The Gadda decision highlights the cooperation among state courts, federal courts, and federal agencies to protect the public from incompetent or misbehaving attorneys. It also reminds attorneys who practice exclusively before federal courts or agencies that they are still California lawyers. Even though an attorney does not practice before a California court and may not have done so in years or ever, California can still discipline the attorney. More importantly, the federal court or agency is likely to reciprocate.
1 In other contexts, such as practice before the Securities and Exchange Commission or the Patent and Trademark Office, preemption may be a more difficult question. Lawyers who practice before any federal agency should consider possible conflicts with California's disciplinary rules and be aware of federal disciplinary regulation so comprehensive as to arguably preempt the field.