United States Court of Appeals,

Eleventh Circuit.

No. 95-4230

Non-Argument Calendar.

In the Matter of William A. CALVO, III, Petitioner.

July 24, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 94-09-ATTY) Norman C. Roettger, Jr.,

Chief Judge.

Before TJOFLAT, Chief Judge, and HATCHETT and CARNES, Circuit

Judges.

PER CURIAM:

William A. Calvo, III, appeals the district court's order that

disbarred him from practicing law in the Southern District of

Florida. In disbarring Calvo, the district court relied upon the

Florida Supreme Court's disbarment of him. That reliance was

improper, Calvo contends, because the proceedings that resulted in

his state court disbarment were constitutionally deficient. For

the reasons discussed below, we affirm the district court's order.

I. BACKGROUND

In 1988, a federal district court granted the Securities and

Exchange Commission's ("SEC") motion for an injunction prohibiting

Calvo from violating the federal securities laws. SEC v. Elec.

Warehouse, Inc., 689 F.Supp. 53 (D.Conn.1988), aff'd, 891 F.2d 457

(2d Cir.1989), cert. denied, 496 U.S. 942, 110 S.Ct. 3228, 110

L.Ed.2d 674 (1990). The court found that Calvo had directly

violated the Securities and Exchange Act of 1934 (the "Securities

Act") and its related rules, and also that Calvo had aided and

abetted others in violating the Securities Act and its rules. As
a result, the SEC suspended Calvo from appearing or practicing

before it for two years. In re Calvo, SEC Admin.Proc. No. 3-7038.

Thereafter, the Florida Bar instituted disciplinary

proceedings against Calvo, based upon his having committed

securities fraud. An evidentiary hearing was held, after which the

Florida Bar referee recommended that Calvo be disbarred. Calvo

challenged that recommendation before the Florida Supreme Court on

several grounds, all of which that court rejected; it ordered

Calvo disbarred. The Florida Bar v. Calvo, 630 So.2d 548

(Fla.1993), cert. denied, --- U.S. ----, 115 S.Ct. 58, 130 L.Ed.2d

16 (1994). Calvo filed a petition for writ of certiorari in the

United States Supreme Court, which was denied.

In 1994, the federal district court entered an order directing

Calvo to show cause within thirty days "why the imposition of the

identical discipline by this court would be unwarranted and the

reasons therefor." In his response to that order, Calvo alleged

numerous constitutional defects in the Florida state court

proceedings, and requested an evidentiary hearing before the

district court. Calvo attached several documents to his response,

including: (1) a forty-six page "certified narrative" written by

Calvo regarding the Florida proceedings, (2) copies of the briefs

that both parties filed before the Florida Supreme Court, (3) a

copy of the Florida Supreme Court's decision, (4) a copy of the

SEC's decision, and (5) Calvo's motion for rehearing before the

Florida Supreme Court. The district court declined to conduct a

hearing, and, in 1995, pursuant to its local rules of disciplinary

enforcement, ordered that Calvo be disbarred from practice before
it. See S.D.Fla. Rules Governing Attorney Discipline, Rule V.E.

Calvo appeals that order.

II. DISCUSSION

A.

 We must first decide whether we have jurisdiction over

Calvo's appeal. The jurisdictional question focuses on whether

there is a case or controversy under Article III of the United

States Constitution. In supplemental briefs filed in this Court,

both Calvo and the government contend that we have jurisdiction.

We agree. Although neither the Supreme Court nor this Court has

ever expressly held that we have jurisdiction over an appeal from

a district court's disbarment order, there is an abundance of

authority from the Supreme Court and this Court that strongly

suggests that we do.

First, the Supreme Court explicitly has held that state court

bar admissions and bar disciplinary decisions present "cases or

controversies" under Article III. In In re Summers, 325 U.S. 561,

568, 65 S.Ct. 1307, 1312, 89 L.Ed. 1795 (1945), the Supreme Court

held that it had jurisdiction to review a state supreme court's

denial of admission to that state bar because that denial involved

a case or controversy. The Court stated:

Where relief is thus sought in a state court against the

action of a committee, appointed to advise the court, and the

court takes cognizance of the complaint without requiring the

appearance of the committee or its members, we think the

consideration of the petition by the Supreme Court, the body

which has authority itself by its own act to give the relief

sought, makes the proceeding adversary in the sense of a true

case or controversy.

Id. at 567-68, 65 S.Ct. at 1311-12. The Court emphasized that

"[t]he form of the proceeding is not significant. It is the nature
and effect which is controlling." Id. at 567, 65 S.Ct. at 1311.

Similarly, in District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), the

Court held that a District of Columbia Court of Appeals order

rejecting an application for admission to the District of Columbia

bar was judicial in nature, thus making applicable the doctrine

that bars federal district court review of state court decisions.

The Court stated that "the proceedings before the District of

Columbia Court of Appeals involved a "judicial inquiry' in which

the court was called upon to investigate, declare, and enforce

"liabilities as they [stood] on present or past facts and under

laws supposed already to exist.' " Id. at 479, 103 S.Ct. at 1313

(alteration in original) (quoting Prentis v. Atlantic Coast Line

Co., 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908)); cf.

In re Palmisano, 70 F.3d 483 (7th Cir.1995) (stating that Feldman

"supplies the essential analysis" as to whether federal courts of

appeals have jurisdiction over district court disciplinary

actions).

Summers and Feldman are instructive in the present case, and

inform us that bar admissions, bar disciplinary actions, and

disbarments are essentially judicial in nature and thus present a

case or controversy under Article III. See Summers, 325 U.S. at

566-67, 65 S.Ct. at 1311 (1945) ("A case arises, within the meaning

of the Constitution, when any question respecting the Constitution,

treatise or laws of the United States has assumed "such a form that

the judicial power is capable of acting on it.' ").

It matters not that this case involves the disbarment of an
attorney instead of the denial of admission to a bar, or that this

case involves a federal bar rather than a state bar. The district

court's actions were as judicial in nature as those of the state

supreme court in Summers. Prior to ordering Calvo disbarred, the

district court judges met and considered Calvo's response to the

order to show cause. The district court had before it Calvo's

forty-six page description of the state court proceedings, various

briefs and memoranda he had filed in the state court proceedings,

a copy of the SEC's decision, a copy of the Florida Supreme Court's

decision, and a copy of Calvo's petition for writ of certiorari to

the United States Supreme Court.

That the district court did not conduct a hearing regarding

Calvo's disbarment does not mean it lacked jurisdiction. See,

e.g., Summers, 325 U.S. at 566-69, 65 S.Ct. at 1311-12 (assuming

jurisdiction over appeal from denial of admission even though no

hearing was held). Our jurisdictional inquiry concerns "the nature

and effect" of the proceeding, rather than its form. See id. at

567, 65 S.Ct. at 1311. Because the "nature and effect" of the

district court proceeding was to curtail Calvo's ability to

practice law in the district court, and because we are capable of

acting on Calvo's appeal, the district court's decision to disbar

him is justiciable under Article III. See, e.g., Ex Parte Burr, 22

U.S. (9 Wheat.) 529, 530, 6 L.Ed. 152 (1824) ("the profession of an

attorney is of great importance to an individual, and the

prosperity of his whole life may depend on its exercise").

Second, in addition to the Supreme Court cases that explicitly

hold that the Court has jurisdiction over appeals from state bar
admission and disciplinary decisions, the Supreme Court and this

Court have reviewed federal court bar admission and disciplinary

decisions on a number of occasions, which suggests that

jurisdiction over these types of appeals is proper despite the lack

of explicit holdings to that effect. In In re Snyder, 472 U.S.

634, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985), the Supreme Court

reviewed an order of the Eighth Circuit Court of Appeals suspending

an attorney for six months from practice in all courts of the

Eighth Circuit. The Court reversed the disbarment order on the

merits, stating that the facts, even as the district court

understood them, did "not support a finding of contemptuous or

contumacious conduct, or a finding that [the] lawyer is "not

presently fit to practice law in the federal courts.' " Id. at

647, 105 S.Ct. at 2882. The Court did not specifically address the

jurisdictional issue, and thus the case does not provide an

explicit holding on that issue. Even so, the fact that the Supreme

Court reviewed the order on the merits, without questioning its

jurisdiction, strongly suggests that it believed its jurisdiction

to be proper. See also In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222,

20 L.Ed.2d 117 (1968) (reversing disbarment from Sixth Circuit

without discussion of jurisdiction); Theard v. United States, 354

U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957) (remanding

disbarment from federal district court without discussion of

jurisdiction).

Similarly, this Court has reviewed numerous district court

orders regarding bar disciplinary matters. In Greer's Refuse

Serv., Inc. v. Browning-Ferris Indus., 843 F.2d 443 (11th Cir.),
 1

Wilkes III was preceded by In re Wilkes, 494 F.2d 472 (5th

Cir.1974) ("Wilkes I ") and Greer's Refuse Serv., Inc. v.

Browning-Ferris Indus., 782 F.2d 918, 920 (11th Cir.1986)

("Wilkes II "), cert. denied, 488 U.S. 967, 109 S.Ct. 493, 102

L.Ed.2d 530 (1988). 

cert. denied, 488 U.S. 967, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988)

("Wilkes III "),1 we affirmed the district court's suspension of an

attorney from practicing before it. Although Wilkes III, like

Snyder, did not explicitly address the jurisdictional question, our

review of the merits in that case suggests that we believed our

jurisdiction to be proper. See also In re Finkelstein, 901 F.2d

1560 (11th Cir.1990) (reversing the district court's order to

suspend an attorney for six months from practicing in that

district, without discussion of jurisdiction); In re Dawson, 609

F.2d 1139 (5th Cir.1980) (affirming the en banc order of the

district court, which had suspended an attorney from practice

before that district, without discussion of jurisdiction).

Two other courts of appeals recently have expressly held that

jurisdiction exists to decide an appeal of a federal disbarment

order. In re Palmisano, 70 F.3d 483, 484-85 (7th Cir.1995), cert.

denied, --- U.S. ----, 116 S.Ct. 1854, --- L.Ed.2d ---- (1996), and

In re Jacobs, 44 F.3d 84, 87-88 (2d Cir.1994), cert. denied, ---

U.S. ----, 116 S.Ct. 73, 133 L.Ed.2d 33 (1995), both presented

cases almost identical to the present one. In those cases, the

Seventh and Second Circuits, respectively, explicitly held that

courts of appeals have jurisdiction over appeals of federal

district court disbarment orders. But see Brooks v. Laws, 208 F.2d

18, 22-30 (D.C.Cir.1953) (holding that court of appeals lacks

jurisdiction over appeal from district court disbarment order).
These cases lead to one conclusion: Calvo's appeal presents

a justiciable "case or controversy." The Second Circuit aptly

summarized this jurisdictional issue in In re Jacobs—a case which

raised issues identical to this case:

The Supreme Court and circuit courts appear to have

concluded that while regulation of attorney behavior should

remain primarily within the discretion of each district court,

it is contrary to fundamental notions of fairness to close off

all avenues of review, even if only for the most glaring

irregularities.

44 F.3d at 88.

B.

 Having held that this appeal is properly before us, we must

decide whether the district court's order to disbar Calvo was

proper. The Supreme Court has held that "disbarment by federal

courts does not automatically flow from disbarment by state

courts." Theard v. United States, 354 U.S. 278, 282, 77 S.Ct.

1274, 1276, 1 L.Ed.2d 1342 (1957). Even so, a state court

disbarment should be accorded federal effect, unless it appears

from an "intrinsic consideration" of the state record that: (1)

the state proceeding lacked due process; (2) the proof in the

state proceeding was so infirm "as to give rise to a clear

conviction on our part that we could not, consistently with our

duty, accept as final the conclusion" of the state court; or (3)

"some other grave reason existed which should convince us that to

allow the natural consequences of the judgment to have their effect

would conflict with the duty which rests upon us not to disbar

except upon the conviction that, under principles of right and

justice, we were constrained so to do." Selling v. Radford, 243

U.S. 46, 51, 37 S.Ct. 377, 379, 61 L.Ed. 585 (1917); see also
 2

Calvo made several other arguments in his response, all of

which we reject without further discussion. 

S.D.Fla. Rules Governing Attorney Discipline, Rule V.E. (requiring

Selling-based analysis in disbarment actions).

 The burden is on the disbarred attorney to show good cause

why he should not be disbarred, and the district court is not

required "to conduct a de novo trial in the first instance of [the

attorney's] fitness to practice law." Wilkes III, 843 F.2d at 447.

Instead, it must determine whether "the record underlying the

predicate state disbarment ... reveal[s] the kind of infirmities

identified in Selling." Id. We review a district court's

disbarment order only for abuse of discretion. E.g., In re

Gouiran, 58 F.3d 54, 56 (2d Cir.1995) ("[W]e review the district

court's order disbarring [an attorney] for clear abuse of

discretion.").

 In his response to the district court's order to show cause,

Calvo raised several arguments concerning alleged defects in the

Florida disbarment proceeding, including: (1) lack of notice that

the charges could lead to disbarment; (2) lack of proof of

misconduct because of (a) improper introduction of judgments of the

SEC and the District Court for the District of Connecticut, (b)

improper introduction of hearsay testimony, and (c) lack of

credibility of witnesses; (3) deprivation of right to counsel;

and (4) intervening change in the law.2

None of Calvo's arguments identify any of the three types of

infirmities that Selling identified. The first prong of Selling

concerns due process, which is narrowly defined, in this context,
as "want of notice or opportunity to be heard." Selling, 243 U.S.

at 51, 37 S.Ct. at 379. Calvo's challenges to the state court

proceeding, as argued in his response to the order to show cause,

do not raise that type of concern. His only challenge that even

remotely deals with the type of due process concerns that would

fall under the first prong of Selling is his contention that he

received inadequate notice of the Florida Bar's charges against

him, because he was not informed in advance of the hearing that he

might be disbarred. However, the published Florida Standards for

Imposing Lawyer Sanctions, Standard 5.11(f), expressly state that

disbarment is appropriate when "a lawyer engages in any other

intentional conduct involving dishonesty, fraud, deceit, or

misrepresentation that seriously adversely reflects on the lawyer's

fitness to practice." Calvo certainly knew about his misconduct,

which the SEC had found to be in direct violation of the Securities

Act and its rules, before the hearing, and should have known about

the Florida Standards. Accordingly, his due process contention is

without merit.

 Under the second prong of Selling, which concerns the

sufficiency of the state court's proof, Calvo argues that the

Florida proceedings suffered from an infirmity of proof because the

referee permitted hearsay testimony, considered the judgments in

the SEC actions, and allowed the testimony of witnesses who lacked

credibility. Disbarment proceedings are not criminal proceedings,

and relaxed rules of evidence apply. For example, in The Florida

Bar v. Vannier, 498 So.2d 896, 898 (Fla.1986), the Florida Supreme

Court held that, "[i]n bar discipline cases, hearsay is admissible
and there is no right to confront witnesses face to face. The

referee is not barred by technical rules of evidence." We cannot

say that the district court erred in finding that there was such a

lack of proof in the state disbarment proceeding as to bar the

federal court from giving federal effect to the state court's

order.

Under the third prong of Selling, which considers whether

disbarment is improper "under the principles of right and justice,"

Calvo makes several contentions. First, he contends that he was

deprived of counsel at the disbarment hearing, and that that

constitutes the type of "grave reason" that should have convinced

the district court not to follow the state court's conclusion.

Calvo argues that he was deprived of his right to counsel because

the Florida Bar referee disqualified one of his attorneys, after

that attorney was designated as a potential rebuttal witness for

the Florida Bar. Even if true, that allegation does not amount to

the type of grave injustice to which the third prong of Selling

refers. Calvo concedes that he was represented by another

attorney; he was not without counsel at the hearing. And even if

he had not been represented, Calvo fails to demonstrate that he had

a right to counsel at the hearing. See, e.g., Lassiter v. Dep't of

Social Servs., 452 U.S. 18, 25, 101 S.Ct. 2153, 2158, 68 L.Ed.2d

640 (1981) (stating that right to appointed counsel "has been

recognized to exist only where the litigant may lose his physical

liberty if he loses the litigation").

 Second, Calvo contends that the district court should not

have followed Florida's disbarment order, because there was an
intervening change in the law regarding securities fraud, which

came after Florida disbarred Calvo and before the district court

disbarred him. He argues that the Supreme Court's decision in

Cent. Bank v. First Interstate Bank, 511 U.S. 164, 114 S.Ct. 1439,

128 L.Ed.2d 119 (1994), eradicated the predicate liability on which

his Florida disbarment was based, because that decision held that

the Securities Act would not support a private civil lawsuit for

aiding and abetting. Be that as it may, Calvo still violated the

Securities Act, as the SEC held. Moreover, the district court's

disbarment order was based upon its overall conclusion that Calvo

had "engag[ed] in conduct that adversely reflect[ed] on his fitness

to practice law," Fla.Disciplinary Rule 1-102(A)(6). Neither that

standard, nor disbarment generally, requires that the attorney have

committed an act subjecting him to civil or criminal liability.

III. CONCLUSION

We conclude that this appeal is justiciable because the

district court's disbarment order constitutes a case or controversy

under Article III. Although "disbarment by federal courts does not

automatically flow from disbarment by state courts," Theard, 354

U.S. at 282, 77 S.Ct. at 1276, Calvo has failed to convince us that

the district court should not have given federal effect to the

state court's disbarment order. Accordingly, we AFFIRM the

district court's order.