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854 F.2d 1187

Docket No. 87-8236.

In re Rosenthal

Ninth Circuit Court of Appeals

Argued and Submitted June 13, 1988.

Decided Aug. 19, 1988.

Ninth Circuit Court of Appeals · decided 1988-08-19

1 counsel of record

Key passage — most relied on by later courts

“... one or all of the following conditions should appear: 1. That the state procedure from want of notice or opportunity to be heard was wanting in due process; 2. that there was such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not consistently with our duty accept as final the conclusion on that subject; or 3. that 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 the principles of right and justice, we were constrained so to do.”

quoted by 2 later decisions, including In the Matter of Gerald Lee Walker, Esq., 700 F. Supp. 100 - Matter of Sassower

“some other grave reason exist[s] that should prevent the court from recognizing the state court's determination.”

quoted by 2 later decisions, including No. 02-15113, No. 02-15113

Relies on District of Columbia Court of Appeals v. Feldman · Theard v. United States · Selling v. Radford

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1988-08-19

How this case has been cited

Cited by 29 later decisions — most recently November 2017 · most notably In Re: Robert B Surrick, Rosenthal v. Justices of the Supreme Court of California (1990)

14 federal appellate · 1 state decisions

1101988199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Jerome Rosenthal, Los Angeles, Cal., for respondent.

¶2*1188Before SCHROEDER and WIGGINS, Circuit Judges, and STEPHENS,* District Judge.

¶4PER CURIAM:

¶5This court issued an order to show cause why Jerome Rosenthal should not be disbarred from the practice of law in this court following his disbarment from the Supreme Court of California.1 A motions panel then granted Rosenthal’s request under Fed.R.App.P. 46(b) for a hearing.

¶6A determination of disbarment by a state court is not conclusively binding on the federal courts. Theard v. United States, 354 U.S. 278, 282, 77 S.Ct. 1274, 1276-77, 1 L.Ed.2d 1342 (1956). Nevertheless, the state court determination is entitled to great deference and recognition absent the following conditions: (1) the state procedure did not provide adequate notice and an opportunity to be heard; (2) the proof of facts establishing the “want of fair private and professional character” were so infirm that the court should not accept the state court’s decision; or (3) some other grave reason existed that should prevent the court from recognizing the state court’s determination. Selling v. Radford, 243 U.S. 46, 51, 37 S.Ct. 377, 379, 61 L.Ed. 585 (1916).

¶7Under Selling, the federal court must make “an intrinsic consideration of the state record” to determine whether one of the above conditions is present. See id.The question arises, however, what “intrinsic consideration” is due? Here, in essence, Rosenthal seeks collaterally to attack in this court a final judicial decision of the highest court of California. He invites this court, in the context of an original disciplinary proceeding, to review de novo the state’s findings of fact. Although this court must examine the record to determine whether any of the Selling infirmities exist, see, e.g., Mackay v. Nesbett, 412 F.2d 846 (9th Cir.1969), the court must accord a presumption of correctness to the state court factual findings. Otherwise, the court would be drawn into an extensive inquiry requiring it to sit in review of a California Supreme Court judgment. This the court is without jurisdiction to do; review of that nature may be obtained only in the United States Supreme Court. See D. C. Court of Appeals v. Feldman, 460 U.S. 462, 485-86, 103 S.Ct. 1303, 1316-17, 75 L.Ed.2d 206 (1982).

¶8The only justification Rosenthal offers for this court not to disbar him is alleged procedural infirmities in the California state disbarment proceedings and allegedly erroneous factual findings upon which the disbarment was based. Upon examination of the record2 we cannot say that Rosenthal was not accorded adequate notice and an opportunity to be heard. Moreover, he has not shown that the factual findings of the California tribunals were unsupported by the evidence. Instead, he offers only his own unsupported, concluso-ry version of the facts. Accordingly, we should recognize the California Supreme Court’s determination of disbarment.

¶9Jerome B. Rosenthal is hereby disbarred from the practice of law before this court.

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