## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1883

___________ In the Matter of: * Gwen G. Caranchini, * Appeal from the United States * District Court for the Western Respondent/Appellant. * District of Missouri. * *

__________ Submitted: September 22, 1998 Filed: November 4, 1998

___________ Before BEAM, LAY, and LOKEN, Circuit Judges.

___________ BEAM, Circuit Judge. Attorney Gwen Caranchini appeals from the district court's order of disbarment. The district court di sbarred Caranchini in reciprocal disciplinary proceedings initiated af ter she was disbarred by the Missouri Supreme Court. See In re Caranchini , 95 6 S.W.2d 910, 920 (Mo. 1997) (en banc), cert. denied , 118 S. Ct. 2347 (1998). O n appeal sh e argues that the district court's order of disbarment violated the Doubl e Jeop ardy Clause because the same conduct had already resulted in sanctions

. Fu rthermore, she argues that the district court denied her due process because n o hearing was held to relitigate the previously sanctioned conduct. For the reasons set forth below, we affirm the district court.

I. BACKGROUNDThe doctrine of offensive non-mutual collate ral estoppel permits "a litigant who 1 was not a party to a prior judgment [to] use that judgment 'offensively' to prevent a defendant from relitigating issues resolved in the earlier proce eding." Parklane Hosiery Co. v. Sho re , 439 U.S. 322, 326 (1979). The Missouri Supreme Court applied thi s doctrine to Caranchini using a four step approach: 1) the identity of the issues involved in the prior adjudication and th e pr esent action, 2) whether the prior judgment was on the merits, 3 ) "whether the party against whom collateral estoppel is asserted was a -2- Attorn ey Gwen Caranchini was sanctioned under Federal Rule of Civi l Proced ure 11 [Rule 11] once in 1989, twice in 1990, and once again in 1992. Th e sanctions we re imposed in four separate federal court cases originating in the District of Kansa s and the Western District of Missouri. Caranchini's conduct that led to the sanctio ns included, inter alia , filing suit before making a reasonable inquiry, an d knowingly relying on a falsely manufactured document . In the process, Caranchini has paid in excess of $89,500 i n sanctions. The sanctions were affirmed by this court and b y the United States Court of Appeals for the Tenth Circuit. Full explanations of the sanction s can be found in Pope v. Federal Express Corp. , 49 F.3d 1327 (8th Cir

. 1995), Wh ite v. General Motors Corp. , 977 F.2d 499 (10th Cir. 1992), Perkins v

. Ge neral Motors Corp. , 965 F.2d 597 (8th Cir. 1992), and Platt v. Jack Coope r Transport, Co. , 959 F.2d 91 (8th Cir. 1992). On January 4, 1993, the Office of Chief Disciplinary Counsel of Missouri sought to dis cipline Caranchini based on the federally sanctioned conduct. After a hearing , findings were made and an information seeking disciplinary action was filed in th e Mi ssouri Supreme Court in January 1995. The matter was then referred to a specia l master.

The s pecial master held a hearing and reviewed all the federally sanctione d conduct. By reason of the doctrine of offensive non-mutual collateral estoppel, the 1party or in privity with a party to the prior adjudication," and 4) whether

the party had a full and fair opportunity in the prior adjudication to litigate the issue for which collateral estoppel is asserted.
In re Caranchini , 956 S.W.2d at 912- 13 (quoting Oates v. Safeco Ins. Co. of America , 583 S.W.2d 713, 719 (Mo. 1979) (en banc)). D uring the adversarial hearing, Caranchini elicited favorable testimony o f 2 clients, attorneys, and law clerks. The evidence and testimony noted her eighteen years of legal practice, her dedication, and the suffe ring, both financial and physical, that she has endured as a result of the federal sanctions. -3- spe cial master did not allow Caranchini to relitigate the facts or law relating to th e san ctioned conduct. The special master examined the sanctioned behavior only t o determine if it violated the Missouri Rules of Professio nal Conduct. During the special
mas ter's hearing, Caranchini was also given the opportunity to present mitigatin g eviden ce. On April 23, 1997, the special master issued findings that detaile d

2 numerous violations of the Missouri Rules of Professional Conduct. The recommended punishment was a reprimand. The Missouri Supreme Court reviewed the f ederally sanctioned conduct and the mitigating evidence de novo. Like the special master, it applied the doctrine o f offensive non-mutual collateral estoppel to preclu de relitigation of the facts established in the f ederal court sanctions. The Missouri Supreme Court found that "the record in this case clearly establishes that [Caranchini ] intentionally submitted a false document, in tentionally made false statements, and intentionally withheld material information." In re Caranchini , 956 S.W.2d at 919. Caranchini was then unanimously disbarred on December 23, 1997.

On January 14, 1998 the United States District Court for the Western Distric t of Missouri issued an order to show cause why Caranchini should not also be disbarred in federal court. The district court found that "the misconduct determined by theSee Randall v. Reynoldson , 640 F.2d 898, 901 (8th Cir. 1981). Court s, whether 3 state or federal, have inherent authority to suspend or disbar attorneys admitted t o practice before them. "The court's control over a lawyer's professional life derives from [their] relat ion to the responsibilities of a court." Theard v. United States , 354 U.S

. 278, 281 (1957). Attorneys are represen tatives of the court and the authority to disbar is necessary to protect the public. See id. The Missouri Supreme Court exercised its authority and unanimously disbarred Caranchini. -4- Missouri Supreme Court has been conclusively establishe d." In re Caranchini , No. 98- 174-D (W.D. Mo. Mar. 12, 1998) (en ba nc order disbarring Caranchini). The district court then deferred to the findings and judgment of the Missouri Supreme Court an d unanimously disbarred Caranchini. She now appeals.

II. DISCUSSION Caranchini first argues that disbarment by the district court constitutes a violation of the Double Jeopardy Clause. Second, she argues that her due process rights were violated by the district court's disciplinary proceedings. Caranchini also argues that the state disbarment proceedings similarly violated her double jeopardy and due process rights. Howe ver, we are without jurisdiction to review the Missouri Supreme Court's judgment o f disbarment. All of Caranchini's other arguments have been carefull y 3 reviewed and lack sufficient merit to be discussed.

A. Double Jeopardy Caranchini argues that her disbarment violates do uble jeopardy because Rule 11 sanctions were previously imposed on the same condu ct. Caranchini contends that she has been sub

ject to multiple punishments for the same offense in violation of th e Doub le Jeopardy Clause. See U.S. Const. amend. V; North Carolina v. Pearce , 395 U.S. 711, 717 (1969), overruled o n other grounds by Alabama v. Smith , 490 U.S. 794 (1989). Although disbarment may be considered punishment "in common parlance,"-5-

Hudson v . United States , 118 S. Ct. 488, 493 (1997) (quotation sources omitted), we find that attorney discipline, including sanctions and disbarment, is not "punishment" for purposes of the Double Jeopardy Clause.

Other courts have c onsidered this issue and have similarly concluded that there is no double jeopardy. See Mississippi State Bar v. Young , 509 So. 2d 210, 214 n.1 (Miss. 1987) ("Most states which have addressed the matte r have held that disciplinary proceedings are not so criminal in nature as to evoke double jeopardy protections."); see also In re Caranchini , 956 S .W.2d at 914-15 (holding that disbarment proceedings do not violate double jeopardy ); cf. Hudson , 118 S. Ct. at 496 (holding that sanctions and professional disbarment of bank off icers did not create a double jeopardy obstacle for cri minal indictments). Attorney discipline, including sanctions and disbarment, is not "punishment" for

purposes of double jeopardy. See In re Brown , 906 P.2d 1184, 1191 (Cal. 1995); Colorado v. Marmon , 903 P.2d 651, 655 (Colo. 1995) (en banc)

. Instead, attorney discipline is designed to protect the public and is therefore remedial in nature. See Theard , 354 U.S. at 281 (stating that disbarment is a necessary power to protect the public).

We are p ersuaded on this issue by the practical reasoning in Office of th e Disciplinary Counsel v. Campbell , 345 A.2d 616, 621 (Pa . 1975). The Campbell court stat es that, "[i]f disciplinary actions were viewed, for constitutional purposes, a s placing an individual in j eopardy, an attorney who was convicted of a crime could not be disba rred for that crime. . . . the state would be compelled to have in its midst a n uncensured attorney who is a convicted criminal." Id.

B. Due Process

Caranch ini next argues that her due process rights were violated because th e district cou rt did not grant her a hearing to dispute the facts established in earlie r litigation. The facts were proved in Rule 11 sanction proceedings. The sanctioned-6-

conduct w as then the foundation for the Missouri Supreme Court's disciplinar y judgment. Th e federal district court, in turn, deferred to the findings and judgment of the Missouri Supreme Court and disbarred Caranchini. Caranchini argues that in her case, due process requires that each court hold a hearing to relitigate the sanctione d conduct de novo, an d that each court issue its own findings of fact and conclusions of law. Notwithstanding Caranchini' s urging to review the sanctioned conduct de novo, federal courts generally defer to state court findings in disbarment proceedings an d typical ly impose the identical discipline. See In re Hoare , No. 97-2005, 1998 W L 350 885, at *3 (8th Cir. July 2, 1998). Although disbarment by state courts does no t automatically res ult in disbarment in the federal courts, "high respect" is given "to the judgment of the state court in its disbarment proceedings." Randall v. Reynoldson , 640 F.2d 898, 901 (8th Cir. 1981).

In the context of federal court disbarment proceedings, narrow review of state court findin gs is permitted. The district court deferred to the findings of the Missouri Supreme Court and disbarred Caranchini. We review the district court's disciplinary order for abuse of discretion. See Hoare , 1998 WL 350885, at *3.

Federal courts will not defer to state court disciplinary findings and judgments when independent review of the state record reveals: 1) a state proced ure that lacks due pr ocess because of failure to provide notice or an opportunity to be heard, 2) a n "infirmity of proof," or 3) some other "grave reason" why deference should not b e given. See Randall , 640 F.2d at 901-02 (quotations omitted). Caranchini argues that the fe deral courts should not defer in her case since the state procedures violated due process. S he contends that due process was lacking because she was not given a n opportunity to relitigate the federally sanctioned conduct. In making its findings, the Missouri Supreme Court did not provide a hear ing to relitigate the sanctioned conduct, but applied, as indicated, the doctrine of offensive non-mutual collateral estoppel to-7-

preclude relitigating issues determined by a prior valid judgm ent. See In re Caranchini , 956 S.W.2d at 912-13.

Caranchini had already received a hearing and full opportunity to litigate th e san ctioned conduct in federal court. The Missouri Supreme Court also provide d Caranchini with notice and an opportunity to be heard, wherein she was permitted to prese nt mitigating evidence, on the issue of whether the federally sanctioned conduct violate d the Missouri Rules of Professional Conduct. We find that due process wa s satisfied in Caranchini's case. Cf. Randall , 640 F.2d at 902 (finding no due proces s violation when collateral estoppel applied to factual basis for disbarm ent). Due process does not require relitigation of valid prior judgments.

We find that no due process violation, "infirmity of proof," or "grave reason " exists such that the district court should not defer to the state court findings. Absent one of these cond itions, we will not engage in the kind of independent determinations of fact and l aw that Caranchini seeks. Therefore, the district court did not abuse it s discretion by deferring to the state court findings and judgment.

C. Reinstatement Proceedings

Mr. Justice Frankfurter commented that "[a] proceeding for disbarment of a lawyer is always painful." Theard , 354 U.S. at 279. Caranchini's case is certainly no different. With this in mind, we note that subsequent efforts by Caranchini might prove fruitful. We are c ognizant that the Missouri Supreme Court permits the reinstatement of disbarred attorneys at an appropriate time. "[A]ny attorney or counselor at la w r e moved from practice . . . on application to the supreme court . . . may be reinstated as such attorney or counselor at law, in the discretion of the court, at any time after one year from the date of such judgment of removal or suspension." Mo. Rev. Stat. § 484.270.-8-

This is not a hollow remedy since the Missouri Supreme Court has ofte n provided for leave to apply for reinstatement within a certain number of years. See , e.g., In re McMullin , 370 S.W.2d 151, 156 (Mo. 1963) (en banc); In re Foley , 36 4 S.W.2d 1, 9 (Mo. 1963) (en banc). In the event that application for reinstatement i s made consistent with the applicable requirements, we are confident that the Missouri Su preme Court's careful review will show whether Caranchini has changed he r fundamental approach to the practice of law and has embraced the professionalism and civility required of all representatives of the court. Our review of the record leads us to believe that such change may have occurred or be in the process of occurring as a consequence of the punishmen t she has been meted. We are confident that the federal courts would likely follow any reinstatement determination made by the Missour i Supreme Cou rt. However, Caranchini's professional misfortune should not cloud the legal analysis.

III. CONCLUSION Althoug h it may seem to Caranchini as though a snowball has precipitated a n avalanche in this case, it is incumbent upon courts to maintain integrity, professionalism and civility among its practitioners. The Missouri Supreme Court an d the federal courts entrusted Caranchini with the right to represent others before their tribunals. Court s cannot allow a blizzard of unethical conduct to sweep across an unsuspecting public. We are not u nsympathetic to the pleas of Caranchini, especially in light of th e circumstances of her case, including the evidence presented in support of he r rehabilitation, but this judgment reflects the protection of the public and not th e unmitigated concerns of an individual.

We recognize the many payments which Caranchini has now made in terms of moneta ry sanctions, professional service, and genuine contrition. The idea tha t integrity , professionalism and civility should supplant "win at all cost" strategies ha s surely been a long lesson for Caranchini and should serve a s a caution to every member-9-

of the bar in this Circuit. Although the law compels us to affirm the district court, the record, along with Missouri's proced ure for reinstatement, suggests that the future may lead to her rehabilitation.

The district court's order of disbarment is affirmed.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.