### Bec ause the case is under seal, we refer to all parties b y 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

Befor e 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 Easte rn District of Missouri ordered attorney P.S. ("appellant") t o 1 surrender his license and relinquish his enrollment in the district court foll owing a similar disbarment by the Supreme Court of Missouri. O n appeal , appellant argues that the district court erred in imposin g discipline identical to that of the Supreme Court of Missouri because the Missou ri court made factual findings which were precluded under th e doctrine of collatera l estoppel. Appellant also argues that the district court abused its discretion when it reciprocally disbarred him because : (1) the Missouri disbarment order was not suppor ted 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 f orth 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 whic h the custody of D.G.'s daughter was at issue. J.M., a witness for D.G.'s spouse, te stified that in October 1986, he and D.G. engaged in sexua l intercours e in a motel room in the presence of D.G.'s young daughter
. Surpri sed by the damaging testimony, appellant requested a recess t o discuss the matter with his client. Apparently unbeknownst to anyone, the court reporter inadvertently left her tape recorder running. Appellant an d 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 booz e 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.
APPELL ANT: You better deny this. Eighteen months old , Jesus. (emphasis added) D.G .: Well, she wasn't even 18 months in '86. She wa s a little bitty baby. She was still in diapers. She was born in '85, in '84, December of '84. In '85, she was a bout 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 w ere 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 th e kid in the room and screwing with the kid in th e room. He said that you two had sex in the bed next to you r 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.: A re you saying if I deny it then -- (emphasi s added)
APPELL ANT: If you said it didn't happen, it didn' t happen. (emphasis added) D.G .: I remember it happening in '86. It seemed to m e she w as in diapers. She was little. I've left him so man y diff erent times, except the first time I filed was in '85 , right? (emphasis added)
APPELL ANT: Yeah, but think of your judgment like that , sc rewing some guy in a motel room with your daughter in th e other bed next to you. She recognized her mother, didn't she? D.G.: Well, she was little bitty. We're talking abou t little. We're talking about pampers.
APPEL LANT: 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 woul d possess h im to tell that you went to a motel with him, wit h 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 eve r rem ember 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 thi s relationship just ended at your marriage?

### 5 D.G.: I did. OPPOSI NG COUNSEL: Okay. And, everything that he i s say ing after that about any sort of relationship is totall y 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. OPPOSI NG COUNSEL: So everything he said today was jus t 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 testimon y that followed formed the basis for criminal and disciplinary proceedings against appellant. T he State of Illinois filed charges against appellant for perjury and subornation of perjury. Following a non-jury trial, he wa s acquitted. A hearing panel for the Disciplinary Commission of the Illinoi s Ba r concluded that appellant violated several disciplinary rules an d recommended that the Supreme Court of Illinois suspend him from practice for two years. Appellant consented to the panel's report an d recommendation, and t he Supreme Court of Illinois suspended appellant for a two-year period beg inning 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 co mmenced a disciplinary proceeding against appellant under Missour i Sup reme Court Rule 5.19, which allows the Court to discipline attorney s based on disciplinary adjudications of other jurisdictions, provided the attorney is given an opportunity to show cause why the Supreme Court o f Missouri should not impose similar discipline. In a decision entered Marc h 22, 1994, the Supreme Court of Missouri disbarred appellant. 2

On June 20, 1994, the United States District Court for the Easter n District of Missouri, pursuant to Local Rule 2(I), issued an orde r directing appellant to show cause in writing within thirty days why th e 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 Ca use" Application requested that the district court suspend appellant for tw o 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 fir st issue on appeal is whether the district court erred whe n it reciprocally imposed discipline based on the Supreme Court of Missouri' s disbarment order. Appellant contends that the Supreme Court of Missouri was collaterally esto pped 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 e ver remember going to a motel with your daughter with [J.M.] ?

### Simi larly, 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 distinguis hed criminal proceedings from those which are

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disciplinary in nature:

The rationale underlying this rule is the differingpurposes of criminal as opposed to disciplinary proceedings. While th e purpose of a criminal prosecution is to punish the wrongdoer, th e purpose of a disciplinary proceeding is to determin e whether an individual is a proper person to be permitted t o practice law. . . . Additionally, the burden of proof in the two pro ceedings is different. In a criminal prosecution , cha rges must be established beyond a reasonable doubt; in a disciplinary proceeding charges need be proved by clear an d con vincing evidence. In this respect, evidence deeme d insufficient to convict an attorney on criminal charges may be suffici ent to show a deviation from required standards o f 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 beyo nd a reasonable doubt that appell ant's conduct amounted to subornation of perjury. However, i n appellant's Missouri disciplinary proceeding his violation of the Missouri Rules of Professional Conduct only had to be established by a preponderanc e of the evidence. In re Littleton , 719 S.W.2d 772, 775 (Mo. 1986). Becaus e Misso uri courts need give to the judgment only the res judicata effec t given by o ther Illinois courts, the Supreme Court of Missouri was no t prevented from consid ering the conduct underlying the Illinois acquittal. Durfee , 375 U.S. at 109. Just as the differing burdens of proof would hav e ena bled the Illinois disciplinary tribunal to examine the conduc t underlying appellant's criminal proceedings, Ett inger , 538 N.E.2d at 1160, the differing burdens of proof allowed the Supreme Court of Missouri t o make an independent c onsideration 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 wha t 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 whe n it imposed discipline based on theSupreme Court of Missouri's disbarment order.

The nd issue on appeal is whether the district court committe d 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 distric t d isbarred appellant under Local Rule 2(I)(4), which at the tim provided:
(4) s Cou shall impose the identical discipline unless th e pondent-attorneydemonstrates, 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, c onsistent 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 dif ferent discipline.

Misso uri 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 no t automatically sent out of the federal court by the
rou te." , 354 U.S. 278, 281 (1957). Eac h

### 10

discipline members of its bar. Id. ("[T]he federal judiciary . .
. hav e autonomous control over the conduct of their officers . . . .") ; Harlan v. Lewis , 982 F.2d 1255, 1259 (8th Cir.) ("The existence in th e federa l courts of an inherent [disciplinary] power necessary to th e exerci se of all others is firmly established.") (citation and quotatio n omitted), cert. denied , 510 U.S. 828 (1993); In re Rhodes , 370 F.2d 411, 413 (8 th Cir.) ("Any court which has the power to admit attorneys t o practi ce has the authority to disbar or discipline attorneys fo r unprofessional conduc t.") (citations omitted), cert. denied , 386 U.S. 999 (1967)
. While state court disciplinary action is "'not conclusivel y binding on the federa l courts,'" federal courts must give a high level of respect to state court disbarment proceedings. In re Randall , 640 F.2 d 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 t o discipline a member of its bar consistent with a state disciplinar y adjudication, may impose reciprocal discipline unless, after an independen t considerat ion of the record, the court finds (1) a deprivation of du e process; (2) a lack of adequate proof establishi ng misconduct; or (3) that the imposition of reciprocal discipline would result in grave injustice. Sel ling 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 brea k 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 hi s client merely demonstrated "the sort of questioning of a client and ventin g of emotions" one would normally exhibit when confronted with surprising an d damaging testimony. To the contrary, it is not normal or acceptable for
an attorney to counsel his client to deny damaging testimony without regar d for its truth or fals ity. 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." Afte r

brief attempt to defend her actions to her attorney, appellan responded, "You better deny this." When appella nt 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 P rofessional 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 eve r ember going to a motel with your daughter with [J.M.] (emphasis added) D.G.: (emphasis added)

In the recorded conve immediatelyprior 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 designe d to prove that [D.G.] had been to a motel with her daughter and [J.M.] From his reces consultation, [appell ant] 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 estoppe l 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 on e warranted a six-month suspension, Id. another attorney's co nduct 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 th e 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 au thorized, 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 see s Theard , 354 U.S Harlan , 982 F.2d at 1259; , 370 F.2d at The district court was not required to follow the disciplinar y 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 inheren t 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 failur e 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 Distric t Court for the Eastern District of Missouri as a result. The district cour t did not abuse its discretion in failing to find grave injustice.

III. CONCLUSION

The doctrine of collateral estoppel did not preclude the Suprem e Court o f Missouri from considering the conduct underlying appellant' s criminal proceeding, and the district court did not abuse its discretion when it imposed disci pline identical to that imposed by the Supreme Court of Missouri. Accordingly, we affirm the district court's disbarment order
. At this point, we sug gest that appellant's best course of action would be to petition the Supre me Court of Missouri for readmission to the Missouri Bar ba sed on his readmission to the Illinois Bar. What the Missour i Supreme Court would do in this scenario is entir ely within its discretion.

AFFIRMED.
A true copy.

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