Because the case is under seal, we refer to all parties by

1

generic names or letters of the alphabet.

 

No. 95-1799

 

*

*

In re: ATTORNEY * Appeal from the United States

DISCIPLINE MATTER * District Court for the

* Eastern District of Missouri.

*

*

 

 Submitted: September 12, 1996

 Filed: October 24, 1996

 

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, and ROSS,

Circuit Judges.

 

FLOYD R. GIBSON, Circuit Judge.

On February 9, 1995, the United States District Court for the

Eastern District of Missouri ordered attorney P.S. ("appellant") to

1

surrender his license and relinquish his enrollment in the district court

following a similar disbarment by the Supreme Court of Missouri. On

appeal, appellant argues that the district court erred in imposing

discipline identical to that of the Supreme Court of Missouri because the

Missouri court made factual findings which were precluded under the

doctrine of collateral estoppel. Appellant also argues that the district

court abused its discretion when it reciprocally disbarred him because:

(1) the Missouri disbarment order was not supported by adequate proof; (2)

the established misconduct warranted substantially different discipline;

and (3) the imposition of identical discipline resulted in grave injustice.

For the reasons set forth below, we affirm the district court's judgment.
2

I. BACKGROUND

Appellant was a member of the bars of Illinois and Missouri.

Appellant represented a woman ("D.G.") in an Illinois divorce case in which

the custody of D.G.'s daughter was at issue. J.M., a witness for D.G.'s

spouse, testified that in October 1986, he and D.G. engaged in sexual

intercourse in a motel room in the presence of D.G.'s young daughter.

Surprised by the damaging testimony, appellant requested a recess to

discuss the matter with his client. Apparently unbeknownst to anyone, the

court reporter inadvertently left her tape recorder running. Appellant and

D.G. remained in the otherwise empty courtroom to discuss J.M.'s testimony.

During the recess, the following conversation between appellant and D.G.

was recorded:

APPELLANT: What about this business about the booze

though? What about the business about the [motel]? Did that

happen?

D.G.: Yeah, it happened.

APPELLANT: God-damn. What were you thinking about?

D.G: She was only three months -- I mean 18 months. I

couldn't leave him. I don't know. I don't know.

APPELLANT: You better deny this. Eighteen months old,

Jesus. (emphasis added)

D.G.: Well, she wasn't even 18 months in '86. She was

a little bitty baby. She was still in diapers. She was born

in '85, in '84, December of '84. In '85, she was about a year,

but I was not seeing him in '86 because right after the court

date, right after my court date, me and [D] still were talking,

and I did see him then.

APPELLANT: So, that didn't happen in October of '86?

D.G.: No, it wouldn't have been October.

APPELLANT: You better deny this, buddy. You better deny

it. What about the liquor situation? You told me you didn't

even drink. (emphasis added)
3

* * *

APPELLANT: Yeah, but I think the thing that hurts you is

taking the kid in the room and screwing with the kid in the

room. He said that you two had sex in the bed next to your

kid, your little kid that was in the other bed. You're going

to have to do something with it. (emphasis added)

D.G.: What can I do with it that won't make it seem like

I'm lying? (emphasis added)

APPELLANT: I don't know. That's up to you. It could be

your word against his. It's up to you. (emphasis added)

D.G.: Are you saying if I deny it then -- (emphasis

added)

APPELLANT: If you said it didn't happen, it didn't

happen. (emphasis added)

D.G.: I remember it happening in '86. It seemed to me

she was in diapers. She was little. I've left him so many

different times, except the first time I filed was in '85,

right? (emphasis added)

APPELLANT: Yeah, but think of your judgment like that,

screwing some guy in a motel room with your daughter in the

other bed next to you. She recognized her mother, didn't she?

D.G.: Well, she was little bitty. We're talking about

little. We're talking about pampers.

APPELLANT: Well, what are you going to say about that?

Are you going to deny that or not?

D.G.: I don't know.

APPELLANT: Hum?

D.G.: I don't know.

APPELLANT: Well, it's up to you. It's up to you. Well,

you're telling the truth when you say it didn't happen in '86.

Okay.

D.G.: I don't remember it happening in '86, no.

APPELLANT: This guy crucifies you.
4

D.G.: I know.

After the recess, D.G. testified to the following on direct examination:

APPELLANT: Okay. Now, in 1986, why -- what would

possess him to tell that you went to a motel with him, with

your daughter?

D.G.: I don't know.

APPELLANT: Did you think he was your friend?

D.G.: Yes.

APPELLANT: What was the situation with him when you met

[D] when you were separated? Were you going out with [J.M.]?

D.G.: No, I wasn't.

APPELLANT You dumped him for [D]?

D.G.: No, I wasn't dating anyone.

APPELLANT: You weren't dating anyone?

D.G.: No.

APPELLANT: Do you ever -- under oath now, do you ever

remember going to a motel with your daughter with [J.M.]?

(emphasis added)

D.G.: No. (emphasis added)

APPELLANT: That's a lie, isn't it?

D.G.: Yes.

APPELLANT: What would possess him to tell that?

D.G.: I don't know . . . .

The following exchange occurred on cross-examination of D.G.:

OPPOSING COUNSEL: And, you were saying that this

relationship just ended at your marriage?
5

D.G.: I did.

OPPOSING COUNSEL: Okay. And, everything that he is

saying after that about any sort of relationship is totally

fabricated?

D.G.: I wouldn't say fabricated, no. We did talk.

OPPOSING COUNSEL: You did go out?

D.G.: After my separation . . . when I filed for my

divorce.

OPPOSING COUNSEL: But, you did go out?

D.G.: We went riding. We went shopping.

OPPOSING COUNSEL: This was all platonic?

D.G.: Yes.

OPPOSING COUNSEL: So everything he said today was just

fabricated --

APPELLANT: Objection, some of it wasn't fabricated. The

motel incident she said was fabricated. (emphasis added)

OPPOSING COUNSEL: Everything relating to a sexual nature

after 1984 was fabricated, correct?

D.G.: Yes.

The recorded colloquy between appellant and D.G. and the testimony

that followed formed the basis for criminal and disciplinary proceedings

against appellant. The State of Illinois filed charges against appellant

for perjury and subornation of perjury. Following a non-jury trial, he was

acquitted. A hearing panel for the Disciplinary Commission of the Illinois

Bar concluded that appellant violated several disciplinary rules and

recommended that the Supreme Court of Illinois suspend him from practice

for two years. Appellant consented to the panel's report and

recommendation, and the Supreme Court of Illinois suspended appellant for

a two-year period beginning September 29, 1992. On October 15, 1992, the

chief disciplinary counsel of Missouri
 In re Storment, 873 S.W.2d 227, 231 (Mo. 1994). 2

 In re Storment, No. 4:94MC00143 (E.D. Mo. Feb. 9, 1995). 3

6

commenced a disciplinary proceeding against appellant under Missouri

Supreme Court Rule 5.19, which allows the Court to discipline attorneys

based on disciplinary adjudications of other jurisdictions, provided the

attorney is given an opportunity to show cause why the Supreme Court of

Missouri should not impose similar discipline. In a decision entered March

22, 1994, the Supreme Court of Missouri disbarred appellant. 

2

On June 20, 1994, the United States District Court for the Eastern

District of Missouri, pursuant to Local Rule 2(I), issued an order

directing appellant to show cause in writing within thirty days why the

district court should not impose discipline identical to that imposed by

the Supreme Court of Missouri. On July 11, 1994, appellant filed a reply

entitled "Show Cause" Application. The "Show Cause" Application requested

that the district court suspend appellant for two years in accordance with

the decision of the Supreme Court of Illinois, rather than disbar him in

accordance with the Missouri discipline. The district court denied this

request and entered an order disbarring appellant from the United States

District Court for the Eastern District of Missouri.3

II. DISCUSSION

The first issue on appeal is whether the district court erred when

it reciprocally imposed discipline based on the Supreme Court of Missouri's

disbarment order. Appellant contends that the Supreme Court of Missouri

was collaterally estopped from reviewing the nature of appellant's intent

when he asked the following question on direct examination:

APPELLANT: Do you ever -- under oath now, do you ever remember

going to a motel with your daughter with [J.M.]?
Similarly, an acquittal of criminal charges does not ba 4

disciplinary action based on underlying conduct in Missouri. In re

Sympson

7

(emphasis added)

No. (emphasis added)

ellant, Judge Riley stated

that "[t]he question 

whether something happened or did not happen." State v. Storment

CF-1001, slip op. at 4 (St. Clair County Circuit Court June 24, 1991)

However, d

answer [D.G.] had never been to a motel with

her his recess consultation, [appellant] knew

this was not true." , 873 S.W.2d at 230. According to appellant,

 question was not intended

to e

factual d

discipline based on the Supreme Court of Missour

with appellant's contention.

The Unite

shall be given in each State to the . . . judicial Proceedings of ever

other State." C . art. IV, § 1. Thus, the Constitution required

the Supreme Court of Missouri to give the Illinois "judgment [of acquittal]

 least the res judicata which the judgment would be accorded in

[Illinois]." Durfee v. Duke d

under Illinois law th

attorney d

upon In re Ettinger, 538 N.E.2d 1152

1160 (Ill In re Browning, 179 N.E.2d 14, 17-18 (Ill

1962)). In , the Supreme Court of Illinois distinguished criminal

proceedings from those which are
8

disciplinary in nature:

The rationale underlying this rule is the differing purposes of

criminal as opposed to disciplinary proceedings. While the

purpose of a criminal prosecution is to punish the wrongdoer,

the purpose of a disciplinary proceeding is to determine

whether an individual is a proper person to be permitted to

practice law. . . . Additionally, the burden of proof in the

two proceedings is different. In a criminal prosecution,

charges must be established beyond a reasonable doubt; in a

disciplinary proceeding charges need be proved by clear and

convincing evidence. In this respect, evidence deemed

insufficient to convict an attorney on criminal charges may be

sufficient to show a deviation from required standards of

professional conduct, warranting disciplinary action.

Ettinger, 538 N.E.2d at 1160 (citations omitted). In appellant's criminal

case, the prosecution was required to prove beyond a reasonable doubt that

appellant's conduct amounted to subornation of perjury. However, in

appellant's Missouri disciplinary proceeding his violation of the Missouri

Rules of Professional Conduct only had to be established by a preponderance

of the evidence. In re Littleton, 719 S.W.2d 772, 775 (Mo. 1986). Because

Missouri courts need give to the judgment only the res judicata effect

given by other Illinois courts, the Supreme Court of Missouri was not

prevented from considering the conduct underlying the Illinois acquittal.

Durfee, 375 U.S. at 109. Just as the differing burdens of proof would have

enabled the Illinois disciplinary tribunal to examine the conduct

underlying appellant's criminal proceedings, Ettinger, 538 N.E.2d at 1160,

the differing burdens of proof allowed the Supreme Court of Missouri to

make an independent consideration of whether appellant's conduct violated

the Missouri Rules of Professional Conduct. Id. Therefore, the Supreme

Court of Missouri was not collaterally estopped from considering what

appellant's intent was when he asked D.G. if she remembered going to a

motel with J.M. Consequently, the district court did not commit error when

it imposed discipline based on the
Supreme Court of Missouri's disbarment order.

The nd issue on appeal is whether the district court committed

when it recognized the Supreme Court of Missouri's disciplinar

action by imposing reciprocal discipline. When reviewing a distric

court's disciplinary order, we will reverse 

of disc In re Olkon, 795 F.2d 1379, 1381 (8th Cir

1986); , 577 F.2d 30, 32 (8th Cir. 1978). The district

 disbarred appellant under Local Rule 2(I)(4), which at the tim

provided:

(4) s

Cou shall impose the identical discipline unless the

pondent-attorney demonstrates, or this Court finds, tha

upon the n

another jurisdiction is predicated it clearly appears:

 so lacking in notice or

opportunity to be heard as to constitut

due process; or

(b) f

establishing

conviction that this court could not, consistent with its

 as final the conclusion on that subject; or

(c) that the imposition of the same discipline by

(d) that the misconduct established is deemed b

this Court to warrant substantially different discipline.

Missouri t

contends that the district court's failure to in

and (d) of Rule 2(I)(4) amounted to an abuse of discretion. We disagree.

h] a lawyer is admitted into a federal court by way of 

state court, he is not automatically sent out of the federal court by the

 route." , 354 U.S. 278, 281 (1957). Each
10

discipline members of its bar. Id. ("[T]he federal judiciary . . .

have autonomous control over the conduct of their officers . . . .");

Harlan v. Lewis, 982 F.2d 1255, 1259 (8th Cir.) ("The existence in the

federal courts of an inherent [disciplinary] power necessary to the

exercise of all others is firmly established.") (citation and quotation

omitted), cert. denied, 510 U.S. 828 (1993); In re Rhodes, 370 F.2d 411,

413 (8th Cir.) ("Any court which has the power to admit attorneys to

practice has the authority to disbar or discipline attorneys for

unprofessional conduct.") (citations omitted), cert. denied, 386 U.S. 999

(1967). While state court disciplinary action is "'not conclusively

binding on the federal courts,'" federal courts must give a high level of

respect to state court disbarment proceedings. In re Randall, 640 F.2d

898, 901 (8th Cir.) (quoting Theard, 354 U.S. at 282), cert. denied, 454

U.S. 880 (1981). Thus, a district court, when determining whether to

discipline a member of its bar consistent with a state disciplinary

adjudication, may impose reciprocal discipline unless, after an independent

consideration of the record, the court finds (1) a deprivation of due

process; (2) a lack of adequate proof establishing misconduct; or (3) that

the imposition of reciprocal discipline would result in grave injustice.

Selling v. Radford, 243 U.S. 46, 51 (1917); Randall, 640 F.2d at 901.

Local Rule 2(I)(4)(d) additionally requires the district court to break

from the state court's order when the misconduct "warrant[s] substantially

different discipline."

A. Adequate Proof to Establish Misconduct

Appellant contends that the recorded colloquy between him and his

client merely demonstrated "the sort of questioning of a client and venting

of emotions" one would normally exhibit when confronted with surprising and

damaging testimony. To the contrary, it is not normal or acceptable for

an attorney to counsel his client to deny damaging testimony without regard

for its truth or falsity. Appellant's first question of D.G. was whether

the incident at the
11

motel occurred. D.G.'s immediate response was, "Yeah, it happened." After

brief attempt to defend her actions to her attorney, appellan

responded, "You better deny this." When appellant counseled his client to

 the damaging testimony, he had no reason to believe the incident at

ed by the Supreme Court of

Missouri, appellant c

of Missouri Rule of Professional Conduct 3.4(b). , 873 S.W.2d at

230.

, during direct testimony of D.G., the following questionin

transpired: 

APPELLANT Do you ever -- under oath now ever

ember going to a motel with your daughter with [J.M.]

(emphasis added)

D.G.: (emphasis added)

In the recorded conve

immediately prior to this line of 

implied ever taken place. There was 

substantial amount of confusion about when 

a denial of its occurrence. 

that "[t]he question and the answer were designed to prove that [D.G.] had

 been to a motel with her daughter and [J.M.] From his reces

consultation, [appellant] knew this was not true." Accordingly, the

Supreme Id. at 231. There wa

adequate if not overwhelming proof of appellant's misconduct. Therefore,

district court did not abuse its discretion in refusing to invoke loca

rule 2(I)(4)(b).

B. Misconduct Warranting Substantially Different Discipline
12

nt discipline than that imposed by the Supreme Court

of First, appellant argues that the factual

findings of the court were precluded by the doctrine of collateral estoppel

 were insubstantial. We discussed and rejected this reasoning above.

cond, appellant asserts that his disbarment is inconsistent wit

the discipline imposed in , 825 S.W.2d 847 (Mo. 1992),

rney misconduct case. The Supreme Court of Missouri

no doubt reviewed both of these cases carefully and found that one

 warranted a six-month suspension, Id.

another attorney's conduct warranted disbarment. , 873 S.W.2d at

231. a state's highest court considers

many rs and "must be given considerable leeway in meting out the

tions imposed." , 640 F.2d at 904. In appellant's case,

was within the appropriate range of sanctions, and "[w]e are no

in a position, nor authorized, to second-guess the highest state court on

Id. 

lly, appellant urges that the district court should hav

disciplined appellant based on Illinois' two-year suspension, rather than

 disbarment. First, we reiterate that each court which admits

 to its bar has the power to discipline those members as it sees

Theard, 354 U.S Harlan, 982 F.2d at 1259; , 370 F.2d

at The district court was not required to follow the disciplinary

ois or Missouri. However, based on the notification

of disbarment by the 

an order e

ide discipline. It was well within the district court's inherent

 to discipline appellant based on Missouri's disbarment order.

, the district court in the present case did not abuse it

discretion in entering judgment consistent with the Missouri disbarment as
13

C. Grave Injustice

Appellant argues that the district court abused its discretion when

it failed to recognize that a grave injustice would result from its failure

to depart from Missouri's disbarment order. We disagree. Appellant did

not conduct himself in accordance with the rules of the profession and was

disbarred from the Supreme Court of Missouri and the United States District

Court for the Eastern District of Missouri as a result. The district court

did not abuse its discretion in failing to find grave injustice.

III. CONCLUSION

The doctrine of collateral estoppel did not preclude the Supreme

Court of Missouri from considering the conduct underlying appellant's

criminal proceeding, and the district court did not abuse its discretion

when it imposed discipline identical to that imposed by the Supreme Court

of Missouri. Accordingly, we affirm the district court's disbarment order.

At this point, we suggest that appellant's best course of action would be

to petition the Supreme Court of Missouri for readmission to the Missouri

Bar based on his readmission to the Illinois Bar. What the Missouri

Supreme Court would do in this scenario is entirely within its discretion.

AFFIRMED.

A true copy.

Attest:

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