we now appear to be recordings this is the matter of in re gregory melvin haynes ninth circuit dock a number thirteen eight zero one zero three and this is the evidence  hearing requested by mr haynes in response to the court's order to show cause why the court should not impose reciprocal discipline based on him as disbarment from the united states district court for the northern district of california and mr haynes i wanted to remind you though of the limited scope of this proceeding namely that the question here is limited to whether you will be permitted to continue to practice at the united states court of appeals for the ninth circuit and nothing that we do here will affect your standing or status as a member of any other bar the california bar or the northern  as i can tell from your submissions you are you understand that the court ordinarily will impose reciprocal discipline unless you as the respondent bear the burden of showing by clear and convincing evidence one of three factors identified originally in a united states supreme court case selling versus radford and modified in language in one circuit decisions but essentially those three factors are whether the proceedings in the northern district provided you with due process that is notice an opportunity to be heard second whether the pro proof was sufficient to support the disbarment and third whether some other grave injustice would occur by the court imposing reciprocal discipline all right  so because i'm going to be asking you some questions here i'd like to begin by having the court in jeopardy put you under oath so that all of your responses are under briefs and some of the record in the direct criminal appeal that was decided last year i'm sorry i beg your pardon the direct appeal from the disciplinary proceeding there was  misstatement and so this is in odd posture an unusual posture in that the our court a three judge panel of this court has already passed on some of the issues that are involved in this case and so my the orders that we've issued in this case have alerted you to be prepared to address the question whether there is any precludes of the fact and to what extent there is precludes the fact from the prior three judge decision on issues that you raised in that matter submissions so i don't want you to feel like you're obligated to go through everything because i i think i'm generally familiar with the factual background the posture of the case and the issues and i do want to give you an opportunity though if you feel like there are particular points you want to make and i do have some questions i want to ask you so with that in mind how would you propose to proceed at this hearing well if you have some questions i would be i would be more than happy to address those all right so why don't i go through some questions and then that may prompt you and then i'm going to give you an opportunity to say what you need to say if we're not completely covered my question is you don't have to say anything further ok so the first the first question i have basically deals with with this whole issue of the earlier appeal in this matter and so my general sense is that if if a three judge panel has ruled on the question for example let let's let me give you an example one of the issues here is whether the disciplinary rule in effect was adequate an adequate basis and for you raised in your direct appeal the issue about the limited nature of the title was reciprocal discipline and conviction of a felony and the you raised the quite the issue that because of that title that it was not an adequate basis now was clearly raised in europe and the three judge panel in it in the unpublished decision could be rejected  right so is there any basis you can identify for me to in my reporting recommendation in this matter do you see any grounds for me that was the primary focus on appeal during after the briefing two cases came down which significantly impact the case but were properly briefed because it the court of forty to do an act the the the can supply that omitted the somewhere the courts say that the body of the disciplinary role provided the authority for doing in an original disciplinary process know what the court reporter did was in violation of storage and versus process is just assume that there was a thorn so they don't rules authorize and so and then it goes through the various i'm but before we go into that that which is which is relevant we have to remember under sturg we have to look at the individual language in harmony with the overall statute and that's what the court failed to do which these two cases  combined now all three of them combined indicated that there was no authority so for example the court says under eleven six  or can refer to the committee that's true and then it says so once he gets referred to the committee then it indicates that the committee under eleven that seven c can institute investigate and investigate members of the bar and gauge an unprofessional conduct in connection with the district court so that raises two items first now well let me ask you this then if if that were true what meaning would would it have to say reciprocal discipline means discipline that occurred in some other form graft so then why would the eleven dash seven see it empower the committee to investigate charges then a member of the bar hasn't gaijin unprofessional conduct in connection with unprofessional conduct in the practice of law in the district court that's what they say in the mini version here is a little bit different if sent in connection with song is not unprofessional conduct in district court  in connection with so that gives us took broader implication there is referring to something else in other words if you get this part on the other guest then brilliant and so when they wrote that they had to have a meaning in mind when they wrote it they when they rewrote it they say to make it a pluggable is there the committee can investigate matters right in the practice of law in the district court that's under the general discipline now they still have the separate well i have to stop you because i just you lost me there i don't see how if you happen to be a member of the state bar of arizona for and the state part of california and you got discipline because of some discovery dispute that occurred in an arizona state court action  suspended you for six months then you come in and this is reported to the standing committee i don't see how that action that discovery dispute in arizona could be unprofessional conduct connection with the district has to be something that happens in the district well then why would they then there's a but there otherwise it would be just no limitation at all well ok so in the revised version they're authorized as general discipline they say in the practice of law in district court so they make a distinction so there is there is a distinction between the two and so the question is what did they mean now if so that's the that's the big question if we look at overall scheme which sturgeon requires us to do you because at the core just noted you could probably say in connection with in district court has a broader meaning so when you look at this particular section sturgeon be frost says look at  say eleven six a five that's when a judge referred it to the chief judge so that now when he referred it to the chief judge the chief judge has one thing to do the folly to do and that is determine whether or not he's going to issue a order to all calls were reciprocal to discipline under eleven dash seven so let me ask you this question under the under the original the earlier version was there any mechanism for the northern district of california to impose original discipline on an attorney of course of course and well how would that work it was the process that you think could have been appl has the power in the statute also give it to him for him to deal with misconduct a disbarred attorney he can he he would have to a forty t came involved in part as part of the as part of the process under the statute so once she got there it is she she was just operating under the statute  but the idea was if you read the statute you since this is that they don't ship off journal just plan to another court and the reason for that is a you could have a lot of problems because if you have a real minor you know some judges you know look at different things differently and so you can have one judge who you know doesn't particularly mind certain things and then he by send it to another judges thinks that landry matter that the only judge you could have imposed discipline in this case was a magistrate judge james or judge carter i mean under the statute under the statute that's how how would be it would proceed because now what the judge could do this under the statute the judge could also stinnett to the state bar he can refer to the state bar in a state park  sort of a new approach to the issues that came after the direct appeal there are any other issues but it was after the after the briefing i did similar letter but i don't think it oh i see we got here did you so aside from this notion of these two supreme court cases are there any other issues that you  that you are raising now in this reciprocal proceeding that were not raised in the direct appeal well with regard to that with with regard to the statutory issue any issue well yes well i get the statutory issue you've already discipline they did put a remedial plan and that's the hallmarks of any general discipline plan but again i asked to the recycle discipline they don't have it it  didn't have it in it and they don't have it now so this is and also they increased the number because now sister the number of people that can prosecute a number of members because they can and the new rule has has a limited to original correct and because otherwise if you don't have the medial plan it kind of goes against the general discipline nature and it tends to promote  but the whole procedure provided for trial which which they indicated was you were going to get and so you you that you use it but so you have for example under the new provision you don't have a trial but you do have a remedial plan and oprah's vision you had a trial in or near a plan and so when the question was well would you like to go under the new plan the only problem with that is under where the posture where we were all of the been afraid of the new plan and had long been gone and the only thing left in the new plan was the denial of a trial so at that late stage to switch it would be kind of this kind of difficult because the old the new plan intice the paty you already tried mediating and so we have to now litigated under and so it would just be kind of complex to say ok our i'll go through with the new plan but i don't get in the benefits of it so there's a there's a because what the whole plan you get discovery but you do a lot of trial discovery just like a real trial you know mediation in the uk in the new plan you get the mediation  so forth and then just to further aggravate their process the committee and this is go into the next due process validation the committee did not meet with me before they filed the petition where the statute states once you determine what discipline you're going to submit you have to contact the other party you don't have to raise that in your brief to you in the directive that that is correct i raised but that's it that's one it's but that's just shows the conflict with the two and the this is the record now to look at more developed with regard to how they differ but so that loss in light of how the and rather than contacting me to find out why there was a problem they went to a summary judgment under flowers are supposed to contact their attorney now  didn't address the misconduct of the committee they knew my address my e mail address and and the my phone number and they have agreed opportunity to respond to all the summary judgment matters and in it in a way you just had a longer period of time where you were able to practice without this threat of or without being disbarred so i guess my question to you is why didn't the redo of the entire procedure from ground floor cure any error about notice beforehand when you all to really got notice and an opportunity to respond to the order to show cause and to the summary judgment motion ok so yes the problem there is twofold so first i haven't and i'm aware of there are what you what you just requested and i want to just set it up to give you the answer first of all talk about something else just briefly to set it up so you can begin to see the type of harm because first in the petition and under ruffalo guess what i have to respond to the petition there is no allegation that the district did the pill was dismissed so i respond to the petition now as a result of made a mistake and then the court they agreed and she changed her decision now she she changed her decision about july seventh fifty seventh but she didn't we didn't get notice of it so we were talking about that until the eleventh because the e mails indicated we were saying ok can you take it off count on you mistake and i am kind of off the hook now because i got two appeals go and they know landry and haynes i'm workin on them both i'm getting extensions of times this pops up in the middle and  that i did these are are not in your record but it just shows a little bit more smore proof of how the notice harm responded responded was able to respond to the petition but because he responded to the petition he had other things that were set aside for example ok on the fourteenth i you know i advised them that i needed more time because i had these two pills before and that you know since they have taken up so much time here would they not stipulate to give me more time to file  where you have position on taking the matter off calendar or delaying the matter due to the briefing in haint and larry man ok that's on the fourteenth they write back and say  the four fifteen four eighteen and then i saw my e mails and then i realized that in the in the coral matter they had  up problem was that the way i had it was landry was landry was already in its sixth request and so i had to focus on landry but when the ninth circuit denied the request in haynes and say i have to do it in fourteen days  did i worked on actually get that done and then in the meantime i had to file the response to the order to show cause because they would continue so i had or i had to take care of this an instead that one i was working on the the problem the the due process notice problem when it was the hanes matter was denied because it was one day late and i was working on the due process problem response to the water to show ca right in the middle of the briefing and the committee wouldn't give any additional time not withstanding they caused the problem it was their problem and i and so i was in the midst of it and not only them they get to been a fit of it because it wasn't in the petition but after it was dismissed they'd been included in the summary judg sure that i get the questions i have answered so i still have a pending question to you that i want you to answer and that is you've already identified this nickel sturgeon eight separate cases that you say provide some new new analysis that wasn't available to the three judge panel so i just want to make sure that i understand whether there are any other issues that you are raising in this reciprocal discipline proceeding that you didn't raise on direct appeal to first there this that these two emails are so little bit so there are two e mails that you that you now have that you didn't have early or yeah i just i didn't put the these e mails in it because i thought it covered covered it elsewhere where is this newly discovered or is it just self that you forgot to put in your brief it was not in the record no words i have put in the record the e mail that of ninety nine for which indicate that i was talking with you trying to work with him on the piano and can i look at these e mails that you that you're talking about so so this was not part of the record of the disciplinary proceeding was not part of the record of the but it's matter that you think is relevant to this reciprocal proceeding even though it wasn't ever part of the wreck well it just goes to show a stronger proof of how due process violation calls harm i said earlier they didn't they didn't agree to to extend time since what you just were talking about gregg and these indicate response so i just want to make sure i understand exactly what your your point is your issue you're saying that as a result of the delay and the ferry to give you a continu you defaulted in the court of appeals on landry and they added that the fault to the amended petition and that this additional element of the did they delayed by not give me the right address and then when the time they corrected the error it was at a time during which because of their refusal to give you an extension you were able to comply with the br that which is relevant to the other issues of the city attorney's office and this was this is new evidence because it wasn't made with the court of appeal under miss harper they encouraged her her deputies to demonize vilify and polarize opposing attorney now  it's also significant i think that in both of the peals landry and haynes is with this it and the city attorney in land i've filed so what so what they in in the levy matter and i'm not sure what this is in the record but i do have to do just the transcript of the display matter was i found out i got the notice because i got a nose because it went to the wrong address and somebody wrote on it try to fork two to four for three so they sent it to me and i got it was after a time  and you know they were working you know the committee was working with the city to to harm it to give you another stop right there ok whatever state you have what evidence is that the committee was working and on your way say that there was a that was her affidavit that says i communicate with this guy and i was communicate with him at twenty four forty three that says ress is right then so she knew about the motion on june and then on june ninth i saw her we were at a hearing to gather for thirty minutes not to mention of the word and so now so was that snap i mean  compliance with the policy that the city had so in essence i think this is this is circumstantial they had to know they had to encourage that she would tell me about but i would think that they told her not to tell me as well well i mean how do you know that she knew other than she was asked for an affidavit about where she communicates with you ok because on the affidavit it stays when the motion was and district court and she had all of her just all the deputy district attorney's file motions or requests in federal court and request that any deposition that i went to i had to go through a metal  so she was a work so she was actively involved in the process and and working with i would m the committee now for example i didn't know that she was the one that encouraged the filing of the police report until i got the discovery because in the discovery judge hamilton she limited my questions and she said i did you know i just had one last one and the last one was you know who encourage you to do it to found the police report by phone for felony and it was recorded so and this kind of it only takes in more significance as as you see the other city attorney you know i'm getting back to this question about whether this was something that was before the court or in your direct  they fired her she sued them and in suing them they put in information against her and therefore it was in a court record and i look in the court record on the summary judgment motion and i found it you got this in the stuff that you have here was was some of the highly confidential part we dac was take out i don't put in and then they put in the non confidential part and they make that public i say so if it is highly confidential because they can't it's all public what you got oh i got this puppy i got it out of the court record and so this was not available to you earlier because it was just filed afterwards during this subsequent losses correct ok i i ve read your arguments about the you know relevance of the hamper testimony and well it's a you know that is that puts things in different perspective you activities and that assisted in keeping me uninformed about the summary judgment motion there hepper transcripts show plan to keep you on in for the book yeah i think it is consistent with it but more importantly it shows that the scott wiener he toll judge white that i spit at a law enforcement officer he knew i was forced nobody's you know me you know he knew i was was he stated it in a pleading but didn't you know it subsequently stated and so then completely false statement then he said i threatened to kick the ass of somebody was i didn't  just maybe shifting a little bit on the focus here looking at the record the district court docket what i believe are undisputed facts sanctions and that sanction motion was appeal in the sanction motion was based on the underlying proceeding at one point lacking merit and  these facts of the facts of the case it's a subsequent case rule that there was a due process violation for the exact reason i was argu ruled that a person who is detained has a constitutional right that the lawyer can not waive the right to appear befor detained person and that was what i was arguing but at the time there was no specific case there rule person's appearance and that's what i was arguing and they were saying that it just wasn't worth it but that's the constitutional principle that beyond water see it then also argue because the detain people the people under fifty one fifty should shouldn't be arrested that the handcuffing of her and taking her from her house to the hospital and then strapping there to a gurne and leaving her was on reasonable just a restraint process they said in the court judge white said that that's not constitutional violation now handcuffing without injury can be a force excessive force case and it's interesting in that case it was sharply divided it was like a four to five decision and the majority opinion said it was a clear violation and opinion that this is crazy this is this is ok this is it was the minority position it was absolutely ok but the majority said it wasn't and so i got a majority minority opinion view of it they said it should have know as we get more information we since i believe that this city attorney may have had more impact in this case then we that i'm aware of but i was able to scare one of the reasons for that is  color by telling her that i filed a summary judgment on time and evidence for that she points to the language in my e mail where i said prior to  judgment i file things on time i told her i didn't say obviously i didn't pallete them but prior to the i had and so they use that so the committee they put that in the petition as a reason for this  now this is what he says says he if this is an isolated case of an attorney losing his cool i wouldn't i would do this in the larry do mr haynes has engaged in this conduct several times he engaged in name calling against me several times now that clearly indicate that if i hadn't used as his term profane name calling him against him in the path he wouldn't find the need to file this any profane language on that day but again this this is in response to the letter and the letter this refers to the prior and that's what items one was that i said i did now using the profane language on that day in a declaration now that's not true what i said  perhaps i wasn't clear as to the reason because you seem so obvious to me because you know i guess if you look you can read it in more one way but but i did i did raise they said they were wrong but this was the finding that the court relied on and that the trial court relied on and this is not what the court of appeal seemed to i would say it's clearly wrong because you deny that you repeatedly directed profane and abusive language toward opposing attorneys of course i do i mean you talk rule that those items weren't going to be addressed because i was assaulted by a police officer who was provoking me who didn't show up at the hearing he got served but he didn't show up and so there were other circumstances that the trial court acknowledged and therefore she said i'm not interested in what mr  because these are ones thought he was the one that we had to come i had a conversation with and so but they still kind of brought that up but that was not something to be addressed because the officer didn't show up so the other items they have to court east is saying is there and then also asked to those two instances they were as the one with the email yes it was just email the reason why it was affected was because somebody else read it and they didn't want they didn't where they want to hear that and so he didn't want to he acted differently and he acted differently throughout because prior to that he was even he was rough in this is in the darkness and after that what he caught he w you know he referred to the judge in a favorable terms in his opinions he would be upset that other people but he would be upset with me i documented it just so there i have a i was sitting down did my testimony is i was sitting down when he was repealing interrupting me and at that time i had a voice impediment and so i had difficulty talking in here and he repeatedly talked to me and in a declaration just the other day out indicating how reasonable he had been throughout and i did say he ought to shut to grow up and i was sitting down he kept on doing it and so i stood up and i said don't interrupt he then said had interrupted him in the past and he was going to continue to interrupt and he uses hand to jab in his my hand and he said i saw him and he was going to get a martial smile went to get the marshal it was the most bizarre thing i've ever seen that is what happened and you know if you if you look at what he told officers he said i was i was upset i called him names and crowd up now i told him there was a videotape and so you know he was i think more reluctant to say the things that he subsequently s was he found out that there was no videotape also larson he's told the officers all i think all i heard was f and i did say well i was sitting discussion so then i started to leave was i got to the elevator the marshal came to actually question that's when miss fillmore first saw me so she first saw me after the incident and after the incident the officer i was going to be detained and after about thirty minutes in the detention as he was asking me questions and i was there soon because you know how do you want to seem like i was being detained and people walking by could really see it in notice a lot of people standing in it could really see and then  it was only when he told me that i will whine about having a business card and that after the marshal arrived and that's what the committee but that's not her testimony her testimony was that she heard you threaten mr z here and say words to mr z here and she saw you why is it that you are saying that she saw only things beginning when the officer arrived and second what's your evidence that the committing no new this new that she was testifying falsely so he ok first test her testimony is that when she first saw me i was with african american woman you threatening mistress here which she testified to is that she was i was face to face with somebody very close close enough to kill for six inches less than that now the only person that that was was  him go so that's who i was talking to when he saw he just got confused because if you if you think about it there were six officers there i was talking morris there was a colby and one other officer at least so there were several officers there and called we was the one who took my statement and wares was right near me and so there was no way i would be that close to them also he was sitting down not standing up alvarez was standing up miss gilmore you know giving had been as out just got confused as to who i was talking to another significant fact is that no police report indicates that me they don't even hanson for example he says he didn't see that it didn't happen he didn't see it all the officers didn't see this is a common type of thing is they're not saying it didn't you know once you realize what happened and you can see how the direct is the direct is when did you first where was mr haines when you song and she said he was staying with other people  and then she said more police officers k and you know more officers were already there but maybe more came so i objected to said when you hear with other people they knew it was later now this is how they know this is how i know you know it was later because in the petition they referred to two incidents the first one and then a later one where they said i was upset with mrs a or a second time so in the petition there's two but when they presented it they presented it as if it was just one and and the court on hearing it accepted it as if it was just one one incident  falsely they said no she didn't testify falsely because all he said was when she first saw me and that once i started talking to whomever was he says i hear more police officers came to see that can all be in the second stage because  ok so we have a few more minutes left ok here i've asked you the questions that i need needed answered appreciate that you're able to answer those so i want to give you just an opportunity if there's anything that you feel like you have to say now that's not necessarily in response to my questions i'll give you ten minutes or so to wrap it up ok well  you don't have to i mean i've read i've read all your papers well you know in in in the you know the misrepresentation i think the the the incident that the let's even leave her out just larson and say here both testified at that evidentiary hearing that that they felt that you were assaulting so here right there well that's their testimony which i wasn't an again there is a credibility issue in credibility issues are decided f certainly judgment and that's what this was and that's one of the reasons why there is a violation of the due process because e this is a better case is the subsequent case and the court what they what they what they ruled is that there were other things but under r specific facts that the court decided and those are the facts in the petition none of the things that have to be this time in because for example the court statement from the ear and larsen is false also with and over time that will come out particularly with regard larsen because he stated that he sent a letter to his carrier about what happened in that letter may prove helpful because you know at the time when i thought it was a video if they see it they subsequently did  i was chased them all around the corner there will be clearly falls so they didn't say that then nobody said i chased anybody in the police report he didn't stay this way he goes back to his to his office and he has the officer who works with the city police and if in cases he then says i was chasing them around i was he says i spit in his face you know slavin spin his face i was c it wasn't he didn't indicate that it was only when he went back to the to the office where he talked with miss harper report in another jurisdiction unless it's a felony and a person can't go back there this wasn't a felony he listed it as a felony so he could report it and he didn't to a party young white female attorney in his view later that's pause he states this in order to vilify demonize and polarize opposing attorneys as mrs harper encourages her deputies to do and that's according to her supervisors so far you know finally the kills somebody who a prisoner who he took out of jail and went to with a mob and lynched this case is not that type of case  and i think that to to to discipline me particularly to disbar me would be a grave injustice there is nothing in the district court the november nineteenth hearing on it so there was no hearing on the twentieth judge contests had a hearing at that hearing just c said bring any matters in discovery matters to him so now any reasonable tourney would pull would have believed that there was no motion p or nineteenth the letter there was file on november eleventh i didn't respond to and that was because the judge contrary it vacated the date and if there was any questions about it judge james vacated today and just to clarify after the twentieth judge kateri said anything back to me difficulties complying with and i we would have to that would be difficult to do there were issues with the client where compliance would not have been  helpful there in the end it became even more problematic once i discovered that there was a false police report against me the client was subject to police action and we were going to we were going to go back with with the type of order that he had we need to get it verified something that we had to have something done but the court when it when he heard the matter dismissed it so based on the order which was not responded to we believe that the court we could have got some some  example would have been he would have wanted to go and that would oppose difficulty also if the if the reason why he wanted to arrest record was for damages so you know not liability if anything we're going to damage it but the for him for to go back with that type of open ended discussion particular based on how they have operated would pose problems and you know we objected and on appeal we believe the court would have reversed that  because it was made with out an opportunity to respond and in violation because the court had taken it off calendar so we had just a reinstatement you can petition for reinstatement and what i hope to do what a plan to do is to present a new evidence to the court to see if the court will reconsider her or her decision because there are some new facts that have thought and when i say that the committee in its brief states miss carr that miss fillmore never claimed she saw the initial conference so they state that in their brief so it is indisputable that she didn't see what the court and the committee suggested that she with me i mean i was with the clerk so she couldn't seen what happened earlier and so one of the problems that i had based on she clearly didn't see it and the court saying she wasn't interested in what happened after the detention and that's when mr aris came in i didn't address that in the original i because it was obviously she didn't see it and the committee didn't try to correct it and on appeal what they argue is not so much that she saw it but whatever already made that point and we're out of time so i'm going to review all the matters that you've presented i'm going to consider all the points you made here today and then i'm going to prepare a report and ranking them the proper disposition of research recall matter that important recommendation will be served on you and you have an opportunity to follow whatever response you deem appropriate earlier that was continue fairly i just got word today that that has been vacated and you know so i'm not quite sure when that's going to