Case: 22-11092 Document: 00516856505 Page: 1 Date Filed: 08/14/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
August 14, 2023
No. 22-11092
____________ Lyle W. Cayce
Clerk
In re David Finn,
Plaintiff—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:22-MC-22
______________________________
Before Smith, Higginson, and Willett, Circuit Judges.
Per Curiam:
After several instances of inappropriate behavior and twice failing to
show up for a client’s sentencing hearing, mostly due to a problem with
substance abuse, attorney David Finn was referred by a presiding judge to a
three-judge disciplinary panel of the U.S. District Court for the Northern
District of Texas. Following an investigation and hearing, the panel
sanctioned Finn by suspending him from practicing before that court for 12
months, with the option to reapply upon proof of sobriety during the period
of suspension. Finn appeals, arguing that a three-judge panel could not
sanction him because the rules say only that “[a] presiding judge” may take
disciplinary action. He also says the 12-month suspension is excessive.
We AFFIRM.
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No. 22-11092
I
In late March 2022, then-Chief Judge Barbara Lynn issued an order
convening a three-judge panel to review the conduct of attorney David Finn,
a member of the bar of the Northern District of Texas. Meanwhile, as
“emergency relief,” she also suspended Finn from practicing before the
court.1
What prompted Judge Lynn’s order was that Finn had twice failed to
appear for a sentencing of his client without notifying the court or client, and
he was unreachable both before and after the second missed hearing. Finn
quickly explained that he had a problem with substance abuse and that he had
checked himself into a rehab/detox center the day of the hearing.
In April 2022, a three-judge panel appointed Michael Heiskell to
investigate Finn’s conduct. On June 14, 2022, Heiskell submitted a 74-page
report, concluding that Finn had engaged in misconduct based on his failure
to appear at sentencing, as well as his disrespectful statements and conduct
toward several judges and court staff:
Finn interrupted and was rude toward Magistrate Judge Rene
Tolliver, including telling her to “watch yourself.”
Finn was disruptive in a plea hearing before Magistrate Judge Irma
Ramirez, and it was obvious that his client had not seen the indictment
before the plea.
Finn was “clearly intoxicated” in an appearance before Judge Ada
Brown, and he made an inappropriate race-based joke, used a swear
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1
On May 11, 2022, Judge Lynn relaxed her prior order to allow Finn to practice
before the court—but only with another attorney, Robert Webster, as co-lead counsel.
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word, and said she was “not qualified” to preside over the matter at
hand.
Finn missed the sentencing hearings with Judge Lynn.
Finn was not dressed professionally in an appearance with Judge
Karen Scholer and put on a jacket and tie only after some “pushback.”
Finn massaged a female court security officer’s shoulders and grabbed
her knee, and when she told him not to, he tried again anyway. He also
offensively touched another CSO and pretended to “swat the
backside” of a female probation officer.
Finn was intoxicated and got belligerent with a CSO, resisted his
instructions, and said to him, “I’m Irish, a boxer, and do I look afraid
of you.”
Heiskell noted that a prior, informal three-judge panel had already
confronted Finn about his behavior on June 25, 2020. Based on these events,
Heiskell concluded that Finn could not conduct litigation properly.
On July 19, 2022, based on the Heiskell Report, the three-judge panel
issued a show-cause order, directing Finn to show cause why he should not
be disciplined for violation of Local Criminal Rule 57.8(b). On August 9,
2022, the panel held an evidentiary hearing on the matter.
On October 25, 2022, the panel adopted the factual findings in the
Heiskell Report and found by clear and convincing evidence that Finn
violated Rule 57.8(b) because he committed misconduct unbecoming of the
Bar, failed to comply with court orders, engaged in unethical behavior, and
was unable to conduct litigation properly. As its sanction, the panel
“indefinitely suspended” Finn from the practice of law in the Northern
District of Texas, though it permitted him to reapply to resume his practice
“after one year of suspension” so long as he submitted “evidence of
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continued sobriety during the period of suspension as well as an assessment
by a duly licensed psychiatrist or psychologist reflecting that Mr. Finn is fit
to practice law.” Time spent appealing the order would not count toward
Finn’s one-year suspension.2
Finn appealed.
II
District courts have authority to discipline attorneys pursuant to their
local rules. In re Goode, 821 F.3d 553, 557 (5th Cir. 2016) (citing
28 U.S.C.
§ 2071(a)). We have appellate jurisdiction to review such disciplinary orders
under
28 U.S.C. § 1291. In re Andry,
921 F.3d 211, 213 n.4 (5th Cir. 2019).
“Sanctions imposed against an attorney by a district court are
reviewed for abuse of discretion.” United States v. Brown, 72 F.3d 25, 28 (5th
Cir. 1995) (citing Chambers v. NASCO, Inc.,
501 U.S. 32 (1991)). “That
discretion is abused if the ruling is based on an ‘erroneous view of the law or
on a clearly erroneous assessment of the evidence.’”
Id. (quoting Chaves v.
M/V Medina Star,
47 F.3d 153, 156 (5th Cir. 1995)).
III
Finn does not contest that his conduct was sanctionable, but he makes
two arguments on appeal. First, he says it was unlawful for a three-judge panel
to discipline him, because the local rules do not provide for a disciplinary
panel (they authorize any presiding judge to discipline members of the bar).
Second, he argues that the 1-year suspension for violating Rule 57.8(b) is
excessive. Neither of these arguments is convincing.
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2
Pending this appeal, the panel left intact Judge Lynn’s amended emergency order,
allowing Finn to practice so long as Webster serves as co-lead counsel.
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A
Finn’s first challenge implicates due process. “It is well-settled that
federal district courts are bound by their own disciplinary rules when
proceeding against attorneys for violation of ethical standards.” Matter of
Thalheim, 853 F.2d 383, 386 (5th Cir. 1988). “When a court undertakes to
sanction an attorney for violating court rules, it is incumbent upon the
sanctioning court to observe scrupulously its own rules of disciplinary
procedure.”
Id. at 390. “Because attorney suspension is a quasi-criminal
punishment in character, any disciplinary rules used to impose this sanction
on attorneys must be strictly construed resolving ambiguities in favor of the
person charged.” Brown,
72 F.3d at 29. Strict construction applies even to
procedural rules. Thalheim,
853 F.2d at 388. Again, this is a matter of due
process.
Id.
Here, the Northern District’s local rules neither permit nor prohibit
the use of a three-judge disciplinary panel in cases such as Finn’s:
b. Grounds for Disciplinary Action. A presiding judge, after
giving opportunity to show cause to the contrary, may take any
appropriate disciplinary action against a member of the bar for:
1. conduct unbecoming a member of the bar;
2. failure to comply with any rule or order of this court;
3. unethical behavior;
4. inability to conduct litigation properly;
5. conviction by any court of a felony or crime involving
dishonesty or false statement; or
6. having been publicly or privately disciplined by any
court, bar, court agency or committee.
N.D. Tex. Local Crim. R. 57.8(b). On its face, the rule says only that
“[a] presiding judge” may impose disciplinary action. Id. And where the
court intends to utilize a three-judge panel for disciplinary matters, it has said
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so explicitly. See, e.g., N.D. Tex. Local Crim. R. 57.8(h)(3) (reciprocal
disciplinary matters).
Finn argues that only individual “presiding judge[s]” can suspend
him from practice before the court. In his view, each district-court judge must
make his or her own determination as to whether he may practice before that
particular judge. In support, he relies on the plain text of Rule 57.8(b) and the
rule of strict construction.
Whatever merit Finn’s argument may have in the abstract,3 we have
no valid basis for vacating the panel’s disciplinary order here because Finn
has suffered no prejudice as a result of having three judges hear his case
instead of just one. “[P]roof of prejudice is generally a necessary . . . element
of a due process claim.” United States v. Lovasco, 431 U.S. 783, 790 (1977).
On more than one occasion, our sister circuits have held that disciplined
attorneys’ inability to show prejudice is fatal to their appeals. See, e.g., In re
Demetriades,
58 F.4th 37, 49 (2d Cir. 2023); In re Klayman,
991 F.3d 1289,
1295 (D.C. Cir. 2021); In re Harper,
725 F.3d 1253, 1258 (10th Cir. 2013); cf.
Thalheim,
853 F.2d at 394 (Smith, J., dissenting) (suggesting that an
attorney’s inability to claim prejudice or detrimental reliance on a
disciplinary rule should bar his due-process claim).
Here, any single judge could have suspended Finn from practicing in
the Northern District. See N.D. Tex. Local Crim. R. 57.8(b) (“any
_____________________
3
This opinion should not be understood to reflect a preference for three-judge
panels over prompt intercession by individual district judges, as through notice of civil
contempt hearings, when attorney disciplinary proceedings are called for. Many
professional misconduct circumstances are dealt with best when they are dealt with
promptly either with a referral to the Bar or in the focused context of a failure to comply
with a court order, according to settled civil contempt caselaw. See, e.g., United States v.
Woodberry, 405 F. App’x 840 (5th Cir. 2010) (civil contempt affirmed as to attorney’s
failure to appear for client’s sentencing).
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appropriate disciplinary action”). Finn suffered no prejudice from having
three such judges presiding over his disciplinary matter and unanimously
agreeing to sanction him—at the request of a fourth judge (Judge Lynn), no
less. Indeed, he was given more protections than those afforded under the
Local Criminal Rules. His due-process challenge therefore must fail.
B
Finn’s second argument is that the 12-month suspension is too harsh.
“Sanctions must be chosen to employ the least possible power to the end
proposed. In other words, the sanctioning court must use the least restrictive
sanction necessary to deter the inappropriate behavior.” In re First City
Bancorporation of Tex. Inc., 282 F.3d 864, 867 (5th Cir. 2002) (internal
quotation marks and citations omitted). Finn suggests that a less restrictive
but still effective sanction would be to appoint a monitor (at Finn’s expense)
to keep tabs on his sobriety while allowing him to continue his practice before
the court.
But the district court did not abuse its discretion. The court did try a
less severe option. An informal panel of judges privately reprimanded him in
June 2020. That lesser sanction did not work. The court was thus justified in
imposing a harsher sanction like the suspension. See id. (holding that a
bankruptcy court did not abuse its discretion in imposing a $25,000 sanction
when counsel ignored the court’s prior oral and written warnings not to
engage in personal attacks). Moreover, the sanction here is appropriately
tailored to Finn’s unique situation: his inability to practice law stemmed from
his alcohol abuse, so the court ordered him not to practice until he is able to
demonstrate sustained sobriety for one year.
Finn protests that 12 months is too long. He argues that his case is not
as bad as that in Adams, where an attorney was suspended only 6 months even
though she lied, disobeyed orders, and did not acknowledge her wrongdoing.
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In re Adams, No. 3:20-MC-008-M, 2020 WL 4922330, at *20 (N.D. Tex.
Aug. 20, 2020). Unlike Adams, Finn says, here he just has a problem with
alcohol abuse and is otherwise a great attorney (when sober, of course). We
remain unconvinced. Adams was not a substance-abuse case and is therefore
a weak comparison at best. More importantly, the district court here
considered that a lesser, non-suspension sanction had not deterred Finn from
reverting to his old ways. The panel also considered that Finn’s conduct had
persisted for some time and that he was not remorseful for his conduct.
Under these circumstances, we discern no abuse of discretion.
AFFIRMED. It is ORDERED that this case be unsealed. The
Clerk’s Office is directed to unseal the case.
8
