third case for this morning jonathan b and reverse district court mr larsen i'm mispronounced one lawyers names in the previous argument so let me try a lar rules can be read to deny him the hearing then hendry's fundamental right to due process of law comes into play and that in and of itself independently compels a hearing in this case what would be involved in the hearing that you think your client is in total to one of the one of the rules under the rules the rules provide for full discovery in accordance with the federal rules of civil have you go through this when someone didn't wait for the rules of car and what hasn't yet happened what hasn't happened in this case the rules require full discovery in accordance with the federal rules what has not happened in this case is about three separate so the first is the full discovery where mr andry can learn what the basis for some of the allegations in lewis freeze report are he would also be entitled to take depositions of the co respondents he would be entitled to take sworn testimony from the investigators he would be entitled to take testimony and depositions of witnesses who were employed by p he would then also be entitled to at that hearing to call those witnesses to cross examine them to question them about their conclusions in their view on that at the first for the first time he did not your honor the first hearing it's important to remember that this first hearing reversed the burden of proof judge bar b a simply took lewis freeze report admitted into evidence and said now robot that in other words the burden of proof was placed on mr entry to come forward with things to disprove that report but he was handicapped in doing so because he was foreclosed from discovery of any of the statements of witnesses or employees of the special master moreover that hearing it was very explicit in the original order to show cause by judge bar b a that that did not involve potential sanctions of suspension or disbarment that hearing was specifically limited to disqualification from the b p case in disallowance of fees that had been earned p case there were five major differences between both substantive and procedural between the hearing the sanctions hearing that was held in that case and what a full disciplinary hearing what it entailed and vast why mr andry has requested and requested originally and now continues to request a full blown hearing ok i want to be sure if we were to thank a it and remain and will you all in fact do this discovery and have this hearing or will it just be an opportunity for more briefing and we just wasted everybody's time no your honor we absolutely will go forward with this hearing mr by analogy mr berger was given a hearing by the nuff on a state bar association it came out with a different result he was found not to have committed ethical violations we believe that the same result will of to mean for mr andrew when you actually think you could make a difference at the hearing with this discovery and with a full hearing where the burden of proof is on the other side oh absolutely  outcome in the sanction hearing absolutely a different outcome this is a very serious allegation they are extremely serious but we absolutely believe that given the basically given the change in the burden of proof given the clear and convincing evidence standard required in a disciplinary hearing given the actual right to confront our accusers and then given the right to present evidence in mitigation if necessary we absolutely believe there would be a different result and that is why we aren't so adamant about requesting the hearing if we thought that the result would be the same there would have been no notice of appeal what would the point be and so that is why i don't know we've had people will be different ok fair enough let me ask you six point three point four seems to be the core of the committee's opposition to your position take such other action as the court deems appropriate explain what that means in your view that is not consistent with their position that it allows them to kind of do what they want what i think that what i would refer to as  disciplinary committee and say here do this and it also do something other that is for example requiring scioli courses to be taken that would not be dismissing the complaint it would be imposing summary discipline  for hearing but it would be something else for example saying we're going to send mr angry to the annual ethics course in baton rouge where we're going to recommend a disciplinary  position in the case is within our inherent power as a court what it does not do is give the court the the right and the power to completely circumvent the hearing process well because the problem i guess is that the word other lacks meaning if they can impose the summary discipline with the out following the summary discipline requirements and call that other a the word that i'm focusing on is other well and to me that for example saying if you attend the annual i think salient which i have no idea if that exists but will pretend it does then we will riggs same in your complaint at that point once you've that would be an other action that's not discipline to go to a silly maybe it could be but we hope it's not it's not dismissing the complaint it's not doctoring them after hearing but it's taking other action maybe they could say we're going to refer this matter to the louisiana disciplinary for you know lawyer disciplinary committee because we believe this is serious enough that that his his state license should be in play and we're going away that would be other action absolutely but to me i guess the word other to me means something other than the other three am last opponent this oh sure he's getting ready for that i'm just trying to understand what that might mean guess contacts it it what it's clear that it cannot mean is that it's a means of circumventing the summary disciplined process and because when you read it in a vis way when you read it in the way proposed by respond what you have done is read two things out of the rules you've read the world read the word must out of two rules the matter must be docketed for a hearing you have also read the entire summary disciplined pro procedure out of the rules because it always speaks of proposed discipline in conjunction with summary discipline remembered something or other out and it takes the word other out summary discipline is defined as discipline without a hearing that's rule five point two point one so when you define summary discipline as any discipline that's imposed without a hearing if the proposed to discipline is objected to you're entitled to a hearing full stop that's rule six point five point two the matter must be docketed for hearing you can't read the word other in a way to write out must and that's why we're saying that the reading given to you to these rules by respondent does not meet the standards that were set by this court in a mole where it's said that an interpretation of the rules must be logical and rational and the the reading of the rules that they are offering to this court is not logical and rational and your honor judge barksdale air her judge haynes both mold decision and that case and this there was an argument for interpret in the rules that had been offered by the respondent in that case that was not the logical and it was not rational because it read another provision out of the rules and this court said at that time no no you have to read the rules in a way that is logical and rational this time ironically it is the respondent that is suggesting a reading of the rules that is not logical and rational give us an example of how a how the proof you would put on would be different at a new hearing as opposed to the order to impose the sanctions that in this case made two critical findings first he he found that the respondent sutton was not credible mr sutton had come forward and simply said this whole mess is all my problem it's on me i was not on or i was not honest in my responses to the inquiries of special counsel and i was not honest with the co respondents in this case when i told them don't worry about it i've taken care of any potential conflict so we now have mr sutton available to testify he can testify under oath we can actually track down every single thing that happened we also would have available to us the testimony of the witnesses who basically said that the credibility finding made by my by judge bar b regarding m correct that mr sutton had previously lied but actually when he got to the sanctions hearing he was telling the truth about how the sequence of events unfold and we would be able to basically connect all of the dots in this case and show that the judge bar b a's and true view should have certain things to mr and very simply is not substantiated by the record evidence in terms of bank transfers telephone calls and things of that nature a detailed examination of the evidence in this case exculpates mr andry and he has paid a tremendous price for the sanctions having been disqualified and had all of his fees disallowed with regard to the b p litigation and now to sort of add insult to injury he's been suspended for a year without ever having the opportunity for a full blown hearing with full discovery right of confrontation cross examination of witnesses underoath to basically vindicate himself i'm sorry i didn't have one for a while but that's helpful answer but just same tamate proving that the level of proof required for sanctions differs from the level of proof required for suspension of on one's just a matter of fact the other  ethical considerations such i was sort of looking for something along that line will how your theories would differ well the theory would be different is not only is the burden of proof now on the disciplinary council and the prosecutor appointed by it by the disciplinary committee which is clear and convincing evidence of wrongdoing which requires knowing and intentional misconduct on the part of mr andry not only do they now have the burden of proof it is a higher standard this court has approved the imposition of sanctions by a preponderance of the evidence now it is it is true that in his finding judge bar b a had referenced clear and convincing evidence but that's clear and convincing evidence after having accepted louis freeh his report as evidence as proven fact that would be the equivalent of a court taking an indictment and say i will reserve the remaining amount of my time unless the court has additional questions step back on because andrew andrea's counsel go right through it is what is due process in this circuit we have a long line of cases of what the process is we're talking about the rule also right in the end you get to the rule and  we want to jump in we can go there first they want to read the rule that six point three four doesn't exist their reading of the rule doesn't encompass rule three in rule eight where the court has the power to disappoint attorneys to have the privilege to be before th additional believes and i have to do the issue is what did they say they would do in their rules and it does seem a that is a very reasonable interpretation of the rules which is consistent with what with the other side is saying and that to me is what you really have to deal with here why do why can you take pieces of these individual rules that seem to have the progression that andrew's counselors are green but then take six point three four to sort of on do that sort of a logical progression of the different ways that someone can be dealt with when these sorts of charges come up i think the position would be that six point three four is specifically for this type of situation where you can't predict everything is going to happen in the lower courts specifically like masco originally it was and it was a sanctions percy and they said wait a second now that we've got the sanctions proceed we're letting you know that you know this this rises to even a higher level of disbarment so i think they're reading it while it may be reasonable i don't think the eastern district of reading of rule three saying we have the power to discipline and determine who has the privilege to be the courts requirement to make sure that the public in the court system is protected in rule three and then and in rule eight and three as it is what are the grounds right if you have to use an eight is what are the sanctions but six is how you get there and i just don't see how well maybe you can tell me what is the word other me if it means i get to do what i want well i think if you take the sanctioned proceedings to have discovery to go through a full blown evidentiary hearing where he was given the opportunities to respond that's what other means we're going to take other action where the court deems appropriate this when there's already been all these proceedings to do it again but you all haven't taken the position it's not summary discipline you're relying on six point three point four right that was a quarter and they call that summary discipline and you all haven't contended otherwise so if it's summary discipline that's six point three point two that's not other and what we said in re moeller moare i don't remember which way was pronounced was a reasonable reading but that wasn't a license to just throw out your own rules so whether they had to have these elaborate extensive rules or not there have been many to follow up and i'm just struggling with how other would encompass something that's already set well i would like to meet order say we are taking action or six point three four b clause of all this that has gone before us so that is our other action they didn't say we're taking summary discipline we're taking you know i believe that was there we are taking this specifically and it doesn't say just says john of the injuries here by suspended from the practice a lot of where the united states district court for a period of twelve months and then it in their footnote they specifically state their following rule six point three four in these circumstances as an the the ongoing court's action or do we need to say that you are the court's interpretation is actually a legitimate way to interpret all of these together i mean does it have to follow from the rules is what i'm asking or is this not is necessarily outside but there's authority in here that that can create special exceptions to the way the rules would normally operate and whether that's rule eight or something else  whatever whatever number you want to call it if it is it did position that is anything in this rule set of rules that allows you to get back to base basically create a special case not subject to the rules i'm rules or again they're not significantly law in there i'll admit there is a great grey area and there's a reasonable you know how do you interpret them is it a reasonable interpretation i think that's you know what we're all struggling with here  but i think we have to look at those rules in the overall framework of what those are there to do and they're not to create a criminal procedure they don't they don't rise to the those that type of levels of rights and entitlements that i think that are being discuss and i think they're there to give a framework for the lawyers to know what is expected of them and i think he did that in the open in the rules is that that louisiana rules of professional conduct apply and that you can be disciplined if you're are six point three point four means what you say you've done if the court had decided to follow the summary discipline proceeding once there's an objection what is it that they've asked for that that is not all within the confines and i've never participated in one of those hearings to know the full out limitations on the federal rules will govern some type of discovery peer that is set out in these rules whether and whether that triggered a knock now whether six point three four preventers operation that sort of proceeding is identified explicitly in these rules as a way you want to call that like a criminal proceeding or not that's something the eastern district in bank i guess when  for anything outside of the rules your position just is they're not entitled to this part of the rules because of six point three four and four six point three four and one is already preceded which is which is a different perceiving with different rules and different availability of discovery different burden of proof different person that the burden of proof was on and you kind of have this report from free that was given you know king necessarily apply but i just see sanctions as a different thing than losing your license even for a period of time particularly when you consider the rest of prosody that the western district simply and i don't even know eastern district they'll be a hearing but it's in front of one randomly just want to judge then the on bond court gets it and then they get to consider it if you want to run through that same hearing again well they're going to consider the original sanctions hearing because that can be procedure they've got these very specific rules that the argument seems to be they can just throw up the window when they feel like it that's your argument and again i'm not in any way suggesting they view themselves as acting precipitously or anything  great respect to the eastern district district judges i'm not trying to in any way undercut that i'm just saying procedure matters when you have rules they need to be followed and i'm failing to see how this is really other than summary discipline it's discipline without hearing before this court and that's true you cannot say that sanctions hearing was told to him to be and by the way you're going to lose your license he wasn't told there bu you were being charged with one point five violations eight point three point four mile ations three point three violations which is the exact mirror image of yass on tax and it took years before awkward did anything  so it wasn't like the two were parallel you can't i know i can civil criminal situation where the f c c is charging you simply but also criminally you khana know that to running parallel will realize is not a criminal action but when you lose your license that has been treated as a pretty big deal in our precedent ok that and i realize it's a suspension but i was not at your tire license you can still practically zero but it's still a pretty big deal particularly with this reciprocal discipline i don't know what his practice is federal versus state that they can then i think the next position is will in the eastern district if we want to get in a policy then we will put six point five six point three four somewhere else and say we do have that  because i think what is required by these are basic is to provide a mask of like or a nasco due process where you and so what they're trying to say with what they what they're saying and what i'm hearing from the panel is well it sounds like you now have created procedures to change these rules in light of this case in light of anything else consistent with what due process we cooperate with this case is not really not due process it's about the process constitutional due process is about the process that these rules set up and he got an awful lot of process early on which many people coming before them being court now and so we just kind of may well not have and maybe need to be some special rules for that sort of situation but we are where we are with these rules and regardless of what process he has gotten before and you know you have some more time for the argument we need to figure out though if these rules require our this extra step even if you process would not have required and we in him in in my reading the rules i think it's the reason the rules say you don't reading within that rule and i think three i think rule six is read in conjunction with all the rules but if that is the reading if somebody is convicted of fraud as being a lawyer in criminal court it sounds like under th the matter must be docketed for here right and you're right and i guess that's what they're saying is they're not taking summary discipline they're doing six point three four under discipline you've already been found to have committed misconduct just like you would have been found fraud because they haven't yet had their hearing even though in that hypothetical they've gone through the entire criminal process let me ask you about nasco that was the western district louisiana and i could find no indication that the western district louisiana rules were anything the eastern district did i miss something on that in other words the dative nasco were the western district rules the same did they have the same six point three one two three four thing that we have i'm sure they're not the same because i know these are just rules  change like in the past like the one thing is been there a while i'm just saying from what i saw the western district rules which i could only look at the ones i had recently because i have those books and i looked at it i didn't see anything similar rules and i'm just saying the eastern district rules are different than say the northern district of texas the ones that right if you will grew up with and that's fine i mean again we're not being disrespectful it's just what you haven't you got a follow up and i agree with you i think that some are disciplined i don't think i should go to an ethics class they were not being referred to the state bar that's not discipline that's just repairing it well that can be done any person can do that i think in this case a bit but i'm sure the state bar of louisiana would sit up a little straighter if they had a report from the on donkey eastern district of louisiana court than if you know private citizen katherine filed a report but they they did they i don't think going to see ellie is mention and there are i'm sorry eight eight is the discipline three is the grounds let's see eight is well i've got the other in there but public reprimand private ambition monetary rest  so again we think it's to be read recently needs or read them all three to rate not to six point three four we think that we've got six point three four any cuts for no reason because again in my hypothetical reading of six point three point four guts the other three well they get accustomed to i guess you wouldn't be complaining if they dismissed the quorn they get to construe the rules and then and they're not just concerning this in a vacuum what they said is look at what has been done why this would not fall under a typical summary a criminal like contempt hearing which is which is not contemplated by these rules specifically by rule six three four connected to rule to me and i think i think that's reasonable and again it may be it's not in this court but i think it's reasonable when you look at the due process that's required in the desert before you sit down real quick you know joint motions filed with us last week asking for documents to be admitted to the record on appeal some of which are in the district court record here with some of which you state aren't why would we review documents that aren't in the district court record well and that was probably in article language by me and i drafted that joint motion all those except the eastern district rules were part of the district court record we did not know why when it was prepared by the district clerk with those were not part of the record on appeal and we when we talk to the district clerk the district clerk said you need to put that up at the face circuit and then only thing that would be not in the district court record is the eastern district rules which of course the eastern district cast or i think a concern was just we'd all be considering things eating consider bobsy they have their it we should be before us because we granted it correct all those dumb thing that wasn't before them and that's the rules right and that was all before rules were before them the rules of before them and the record on orders and the all those documents were before the on loan corps well before they  nasco can't govern this case nasco is in one nine hundred ninety decision and it is the imposition of discipline based not on specific rules but on the inherent powers of the court my resort my research indicates that in one thousand ninety the western district did not have its own disciplinary rules it relied simply on the disciplinary rules of the louisiana state bar association and the court nasco specifically said if we had a rule of procedure before us the result would have been different but we do have the rule it's rule six in this case i would suggest your honor that this is a very or you jump into this quote frosty and then it's in the briefs and i was just looking at it but the notice that your client received from the on by your understood it said some are done this plan is being imposed you may request to hear something like that tell us what that notice is the notice said that the are you referring to the notice actually imposing the discipline yes or summary death it is summary discipline is being imposed and it is in the form of a suspension for one year reading from memory and the court vent evaluated aggravating and mitigating factors there even though there was no record for those aggravating and mitigating factors ever because mr andry had never been given the opportunity much less advised of the need to present them it went through aggravating and mitigating factors and then it finally said a therefore a suspension of one year is here by it looks to me that they imposed discipline objection a second order denying or overruling the objection was imposed where was that document that put him on notice that this is happening well we needed to file something saying hey how i want to hearing or whatever that the notice actually came before that when the court referred the matter back to the disciplinary committee for its recommendation and then that was the last notification while the recommendation was while they were awaiting the recommendation the recommendation came forward mr andrey thought ok well there's going to be a hearing and then what issues is this order suspending him that was his notice that he wasn't going to get a hearing though this case is unusual because most disciplinary matters in the eastern district come from the state disciplinary procedures the state will institute disciplinary charges they will have a hearing they will impose a result and then normally that result is transmitted to the district eastern district of the easy ana and most frequently it will is there an objection to the proposed discipline because usually it's already been imposed by the state this is a unique case in that it actually only rises in the district court but it arises when judge bar directed louis freeh to file his finding as a complaint that was supposed to be the beginning of the disciplinary process n four well i was in his company my first two years at west point of football manager on the team and he was one great football player and a great fellow and give him my regards us home about nine years ago at a reunion for the well his nickname was the thumper and it was all true second i want to add i want to join judge southwick in welcoming the students from mississippi state we appreciate you being here i will tell you that when i was in my last year in the army and i wrote my uncle who was a very fine warrior about going to law school he replied go to med school