United States Court of Appeals

For the First Circuit

No. 06-8033

IN RE: MALCOLM J. BARACH,

Respondent.

ON SHOW-CAUSE ORDER FOR RECIPROCAL DISCIPLINE

Before

 Torruella, Selya, and Boudin, Circuit Judges.

Malcolm J. Barach pro se.

August 28, 2008
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Per Curiam. On August 31, 2006, the Massachusetts

Supreme Judicial Court (SJC), acting upon and upholding findings

and conclusions reached by a Board of Bar Overseers hearing

committee and an appeals panel, see Mass. S.J.C. R. 4:01 § 8(4),

ordered the respondent attorney Malcolm J. Barach suspended from

the practice of law for a period of two years. According to that

court's order, the respondent had (with respect to three unrelated

clients) "failed to keep or maintain adequate records of client

accounts, failed to return unearned client fees, charged 'clearly

excessive' fees, for work he did not perform, falsified time

records, and made intentional misrepresentations to bar counsel."

Following receipt of official notice of the respondent's

suspension, this court issued an order to show cause why the

respondent should not be reciprocally disciplined. See Fed. R.

App. P. 46(b)(2). The respondent filed an opposition and sought to

appear in person. See Fed. R. App. P. 46(c). We held a nonevidentiary hearing on July 30, 2008. We now impose reciprocal

discipline and suspend the respondent from practice before this

court.

The framework for reciprocal disciplinary proceedings is

familiar. A member of this court's bar who "has been suspended or

disbarred from practice in any other court" is subject to

reciprocal discipline. Fed. R. App. P. 46(b)(1)(A). Upon

receiving official notice that another court has imposed such
The burden of submitting the record of the state proceedings 1

is on the respondent. See In re Williams, 398 F.3d at 119. Should

the respondent default on this responsibility, the court may assume

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discipline, see 1st Cir. R. Att'y Discip. Enf. (Discip. R.) II.A,

a disciplinary panel is named, see Discip. R. II.B, V.A., and the

respondent attorney is ordered to show cause why substantially

similar discipline should not be imposed, Discip. R. II.B.2. If

the respondent files a reply within the allotted period, the panel

must consider whether he or she has demonstrated extenuating

circumstances sufficient to warrant action different than that

taken by the original court. Discip. R. II.C.

When, as now, disciplinary sanctions have been imposed by

a state court, we lack jurisdiction in a federal disciplinary

proceeding to vacate or modify the state court's imposed

discipline. See In re Williams, 398 F.3d 116, 118 (1st Cir. 2005)

(per curiam). By the same token, we ordinarily treat the state

court's factual findings with a high degree of respect in

reciprocal disciplinary proceedings. Id.

Withal, the judgment of the state court as to the type

and kind of discipline is not conclusive for federal disciplinary

purposes. In re Ruffalo, 390 U.S. 544, 547 (1968). A federal

court remains free to make its own judgment as to the federal

discipline to be imposed. See In re Williams, 398 F.3d at 118. To

accomplish this task, the federal court should fully consider the

state record. Selling v. Radford, 243 U.S. 46, 51 (1917). 1
that the record supports the state court's findings. See id. at

120 n.1.

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This does not mean, however, that a reciprocal discipline

proceeding is in any sense a de novo proceeding. "As a general

rule, discipline similar to that imposed in the state court will be

imposed in a reciprocal proceeding." In re Williams, 398 F.3d at

119. An exception may be made only in the event that we discern

from the state record "(i) a deprivation of procedural due process

(usually defined as a want of notice or opportunity to be heard),

(ii) an infirmity of proof of misconduct such as would give rise to

a clear conviction on our part that we could not consistently with

our duty accept as final the [state court's] ultimate conclusion,

or (iii) the existence of some other serious impediment to

acceptance of the state court's conclusion." Id. (citation and

internal quotation marks omitted). The essence of this paradigm

has been memorialized in Disciplinary Rule II.C, which provides

that in reciprocal disciplinary matters the panel should impose

substantially the same discipline as was imposed by the original

court unless it is persuaded:

1. that the procedure used by the other court

was so lacking in notice or opportunity to be

heard as to constitute a deprivation of due

process; or

2. that there was such an infirmity of proof

establishing the misconduct as to give rise to

the clear conviction that this Court could

not, consistent with its duty, accept as final

the conclusion on that subject; or
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3. that the imposition of substantially

similar discipline by this Court would result

in grave injustice; or

4. that the misconduct established is deemed

by the Court to warrant different discipline.

Discip. R. II.C.

When all is said and done, the respondent attorney must

carry the burden of proof, by clear and convincing evidence, that

the imposition of substantially similar discipline is unwarranted.

In re Williams, 398 F.3d at 119; In re Surrick, 338 F.3d 224, 232

(3d Cir. 2003). This usually presents an uphill climb: we have

recognized that, "[g]iven the limited nature of our inquiry, the

norm will be for this court to impose discipline which is

substantially similar to that imposed by the state court." In re

Williams, 398 F.3d at 119.

Against this backdrop, we turn to the matter at hand.

All the bases have been touched. The customary show-cause order

issued. The respondent attorney filed a reply and submitted the

record of the state proceedings. He then requested and received a

hearing, and proceeded to argue eloquently in his own defense. 

We have examined the respondent's proffer and mulled his

contentions. Despite the wide-ranging nature of his attack, the

only argument that requires discussion is his claim that the

Commonwealth denied him due process by setting the bar for proof of

misconduct too low. We proceed immediately to that claim.
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Massachusetts places the burden of proving misconduct on

Bar Counsel in attorney disciplinary proceedings, but authorizes

findings of misconduct to be made on the basis of a preponderance

of the evidence. Mass. R. B.B.O. § 3.28. This is a minority rule;

most jurisdictions require clear and convincing evidence in such

proceedings. See, e.g., In re Thyden, 877 A.2d 129, 137 (D.C.

2005); Statewide Griev. Comm. v. Presnick, 575 A.2d 210, 215 (Conn.

1990); La. State Bar Ass'n v. Edwins, 329 So. 2d 437, 441-42 (La.

1976); Bar Ass'n v. Marshall, 307 A.2d 677, 681 (Md. 1973). The

respondent alleges that the Commonwealth's choice is

constitutionally prohibited, that is, before the Commonwealth could

suspend his license to practice law, it was constitutionally

required to prove the grounds for the suspension by no less than

clear and convincing evidence. This lowering of the bar, he

argues, rendered the state court proceedings fundamentally unfair

and, thus, violated his due process rights.

Admittedly, the Due Process Clause applies to

disciplinary proceedings. See, e.g., In re Franco, 410 F.3d 39, 40

(1st Cir. 2005); In re Cordova-González, 996 F.2d 1334, 1336 (1st

Cir. 1993). But the Due Process Clause does not demand that a

state devise an ideal set of procedures for attorney discipline.

It suffices to satisfy due process if a state adopts procedures

that collectively ensure the fundamental fairness of the

disciplinary proceedings. See Newman v. Burgin, 930 F.2d 955, 961
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(1st Cir. 1991). In other words, the Due Process Clause imposes a

floor below which a state cannot descend, not a level of perfection

that a state must achieve.

We understand the importance of a lawyer's right to

practice law and agree that, once granted, that right cannot be

taken away in an arbitrary or capricious manner. Yet the Due

Process Clause is flexible, and reasonable minds can differ as to

the need for elevated levels of proof in particular situations.

Viewed in this light, the use of a preponderance of the evidence

standard in bar disciplinary proceedings does not offend due

process. After all, many types of important property rights

typically rest, in contested proceedings, on proof by preponderant

evidence. See, e.g., Vigilantes, Inc. v. U.S. Dep't of Labor, 968

F.2d 1412, 1416 (1st Cir. 1992) (dealing with debarment from

federal procurement); Appeal of Regenesis Corp., 937 A.2d 279, 284

(N.H. 2007) (dealing with revocation of a solid waste permit);

Eidson v. State Dep't of Licensing, 32 P.3d 1039, 1044 (Wash. Ct.

App. 2001) (dealing with revocation of a real estate appraiser's

license). Moreover, other jurisdictions besides Massachusetts use

a preponderance standard in attorney disciplinary matters. See,

e.g., In re Robson, 575 P.2d 771, 776 (Alaska 1978); In re Crane,

255 N.W.2d 624, 627 (Mich. 1977); Weems v. Supreme Ct. Comm. on

Prof'l Conduct, 523 S.W.2d 900, 904 (Ark. 1975). Although there is

something to be said on policy grounds for requiring a more sturdy
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quantum of proof, the use of a preponderance standard is not so

arbitrary or irrational as to render state disciplinary proceedings

that use it fundamentally unfair. See In re Friedman, 51 F.3d 20,

22 (2d Cir. 1995).

The respondent claims that the case law demands a

different outcome. In support, he cites three decisions. None of

them stands for the view of the Constitution that he espouses.

The respondent's most loudly bruited authority is the

decision in In re Medrano, 956 F.2d 101 (5th Cir. 1992). There,

the Fifth Circuit held that a federal district court had applied

the wrong standard in a disbarment proceeding. Id. at 102. The

decision does not implicate constitutional principles but, rather,

hinges on the fact that disciplinary proceedings in federal courts

in the Fifth Circuit require findings based on clear and convincing

evidence — a standard that the district court did not apply. See

id. at 102.

The second case relied on by the respondent is Koden v.

U.S. Department of Justice, 564 F.2d 228 (7th Cir. 1977). That

case involved an attorney's year-long suspension from practice

before the Immigration and Naturalization Service and the Board of

Immigration Appeals. A federal district court upheld the

suspension and the lawyer appealed. He neither advanced a

constitutional argument nor challenged the quantum of proof needed

to buttress the suspension; indeed, the only mention of clear and
The agencies adopted the clear and convincing evidence 2

standard on policy grounds, reasoning that "more than a mere

preponderance of the evidence should be required to deprive an

attorney of his right to practice his profession." Koden, 564 F.2d

at 235. 

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convincing evidence in the opinion is the Seventh Circuit's

acknowledgment of the standard applied by the agencies. Id. at 2

235. The adoption of such a standard by an administrative agency

is a far cry from a declaration that such a standard is

constitutionally required.

The last case in the respondent's trilogy is Collins

Securities Corp. v. SEC, 562 F.2d 820 (D.C. Cir. 1977). The court

there held that the SEC erred in applying a preponderance standard

rather than a clear and convincing evidence standard in revoking

various securities industry privileges (e.g., broker-dealer

registrations). Id. at 821. While the court, which vacated the

revocations, plainly favored a standard requiring the use of clear

and convincing evidence in connection with the levying of severe

civil sanctions, its choice of that standard was couched as a

matter of policy applicable to federal administrative proceedings,

not as a matter of constitutional law. See id. at 823-25. 

That ends this aspect of the matter. Refined to bare

essence, the respondent's argument raises policy concerns, not

constitutional concerns. But states are sovereigns, and the range

of policy choices allowed to them by our federal system in general

and the Due Process Clause in particular is wide. And where, as
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here, the courts of a state have made a constitutionally

permissible choice of a standard of proof, it is not the place of

a federal court in a reciprocal disciplinary proceeding to

substitute its judgment for that of the state. That is true even

if we, writing on a pristine page, might have chosen some other

standard. Cf. Rodríquez-Díaz v. Sierra-Martínez, 853 F.2d 1027,

1031 n.4 (1st Cir. 1988) (concluding that federal court must

respect Puerto Rico's policy choice as to age of majority).

Accordingly, we must reject the respondent's constitutional

challenge to the use of a preponderance standard here.

The respondent's other arguments need not detain us. A

proceeding designed to weigh the advisability of reciprocal

discipline is not a vehicle for retrying the original disciplinary

proceeding. See In re Williams, 398 F.3d at 119. Nor is it a

vehicle either for the correction of garden-variety errors or for

the revisiting of judgment calls. See In re Bird, 353 F.3d 636,

637-38 (8th Cir. 2003); In re Chipley, 448 F.2d 1234, 1235 (4th

Cir. 1971).

In this instance, the respondent's other claims are

unremarkable. They challenge such things as alleged evidentiary

errors (e.g., the hearing committee's decision to accept an

affidavit from an expert witness and, concomitantly, to exclude the

expert's live testimony), alleged procedural bevues (e.g., the

denial of a motion for recusal), alleged misinterpretations of
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state law (e.g., the rejection of a res judicata defense), and the

like. We have carefully reviewed the state record and doubt that

any of these challenges have merit. More importantly, the putative

errors do not suggest any deprivation of due process, any

meaningful infirmity in the Commonwealth's proof, or any serious

reason why we should hesitate to accept the state court's

conclusions. In short, we see nothing sufficiently egregious to

warrant setting aside the presumption of regularity that attends

our review.

We need go no further. Cause not having been shown, we

impose upon the respondent attorney reciprocal discipline

commensurate to that imposed by the SJC. Accordingly, attorney

Malcolm J. Barach is hereby suspended from the practice of law

before this court. That suspension shall run concurrent with the

suspension previously imposed by the SJC, see Discip. R. VII.A, and

he shall be eligible to apply for reinstatement at the end of his

state suspension.

So Ordered.