No. 94-2012 In The Supreme Court of The United States OCTOBER TERM, 1995 DAVID B. JACOBS, PETITIONER v. GRIEVANCE COMMITTEE FOR THE EASTERN DISTRICT OF NEW YORK ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION DREW S. DAYS, III Solicitor General FRANK W. HUNGER Assistant Attorney General MICHAEL JAY SINGER JOHN P. SCHNITKER Attorneys Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the court of appeals erred in affirming the district court's suspension of petitioner from practice before the district court. I ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Opinions below . . . .1 Jurisdiction . . . . 1 Statement . . . . 2 Argument . . . . 6 Conclusion . . . . 17 TABLE OF AUTHORITIES Cases: Anonymous Attorneys, In re v. Bar Ass`n of Erie County, 362 N.E. 2d 592 (N.Y. 1977) . . . .12-13 Atlantic Coast Line R.R. v. Brotherhood of Locomo- tive Eng'rs, 398 U.S. 281 (1970) . . . . 7 Bithoney, In re, 486 F.2d 319 (lst Cir. 1973) . . . .11 Chicago, B. & Q. R.R. v. McGuire, 219 U.S. 549 (1911). . . .11 Coffelt V. Shell, 577 F.2d 30 (8th Cir. 1978) . . . . 9 Curry v. Del Priore, 941 F.2d 730 (9th Cir. 1991) . . . . 9 Daley, In re, 549 F.2d 469 (7th Cir.), cert. denied, 434 U.S. 829 (1977) . . . . 12 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) . . . . 7 Erie County Water Authority v. Western N. Y. Water Co., 107 N.E.2d 479 (N.Y.), cert. denied, 344 U.S. 892 (1952) . . . . 10 Florida Bar v. Went For It, Inc., No. 94-226 (June 21, 1995) . . . .9 Gair v. Peck, 160 N.E.2d 43 (N.Y. 1959), cert. denied, 361 U.S. 374 (1960) . . . .10 Getty v. Reedj 547 F.2d 971 (6th Cir. 1977) . . . .8 Goldman v. State Bar, 570 P.2d 463 (Cal. 1977) . . . .13 Gordon, In re, 640 F.2d 1143 (lOth Cir. 1981) . . . . 8 Greene v. Greene, 436 N.E.2d 496 (N.Y. 1982) . . . . 11 Hsserman, In re, 345 U.S. 286 (1953) . . . . 8, 9, 15 Zacobs, In re: 619 N.E.2d 647 (N.Y. 1993) . . . . 2, 4, 7 594 N. N.Y.S.2d 794 (App. Div. 1993) . . . .3 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued Jafree, In re, 759 F.2d 604 (7th Cir. 1985) . . . . Mathews v. Eldridge, 424 U.S. 319 (1976) . . . . 6 Minneapolis & St. L. R.R. v. Bombolis, 241 U.S. 211 (1916) . . . . Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) . . . . Nichols v. United States, 114 S. Ct. 1921 (1994) . . . . People ex rel. Karlin v Culkin, 162 N.E. 487 (N.Y. 1928) . . . . Pfeifer v. Sentry Insurance, 745 F. Supp. 1434 (E.D. Wis. 1990) . . . . Reinstatement of Leaf In re, 41 F.3d 281 (7th Cir. 1994). Rosenthal, In re, 854 F.2d 1187 (9th Cir. 1988) . . . .7, 8 Rosenthal v. Justices of the Supreme Court of Cali- fornia, 910 F.2d 561 (9th Cir. 1990), cert. denied, 498 U.S. 1087 (1991) . . . . Selling v. Radford, 243 U.S. 46 (1917) . . . . 5, 7, 8, Sexton v. Arkansas Supreme Court Comm. on Pro- fessional Conduct, 730 F. Supp. 285 (W.D. Ark. 1990).. Snyder, In re, 472 U.S. 634 (1985) . . . . 9, Theard v. United States, 354 U.S. 278 (1957) . . . . United States v. Certain Real Property & Premises, 954 F.2d 29 (2d Cir.), cert. denied, 113 S. Ct. 55 (1992). United States v. Tucker, 404 U.S. 443 (1972) . . . .13 United States v. Zucker, 161 U.S. 475 (1896) . . . . Wall, Ex parte, 107 U.S. 265 (1882) . . . . 13, 15 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) . . . .10 Williams v. New York, 337 U.S. 241 (1949) . . . . Witte v. United States, 115 S. Ct. 2199 (1995) . . . . Wunschel Law Firm, P.C. v. Clabaugh, 291 N.W.2d 331 (Iowa 1980) . . . . Constitution, statutes and rules: U.S. Const.: Amend. V . . . . 5 Amend. VI . . . . 5, 12, 13 ---------------------------------------- Page Break ---------------------------------------- v Constitution, statutes and rules-Continued Amend. VII . . . . 5, 12, 17 Amend. VIII . . . . 6, 12, 14, 17 28 U.S.C. 1257(a) . . . . 2 28 U. S.C. 2403(b) . . . . 2 N.Y. Jud. Law (McKinney 1983): I 90 (Supp. 1995) . . . . 2 90(2) . . . .9, 10 474 . . . . 10 Sup. Ct. R. 13.1 . . . .2 E.D.N.Y.R.: I Rule 4 . . . .2, 6, 15 Rule 4(a) . . . . 4 Rule 4(d) . . . . 4, 9 Rule 4(g) . . . . 4, 8 Rule 4(i) . . . . 15, 16 Y. Code of Professional Responsibility (22 N. Y. C.R.R. 1200.11 (McKinney SUPP. 1995)): DR 2-106 . . . . 3, 11 DR 2-106(A) . . . . 3 DR 2-106(B)(1)-(8) . . . .3 N.Y. Sup. Ct. App. Div. R. 691.10 . . . .10 ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 No. 94-2012 DAVID B. JACOBS, PETITIONER v. GRIEVANCE COMMITTEE FOR THE EASTERN DISTRICT OF NEW YORK ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. Al- A17) is reported at 44 F.3d 84. The decision of the Grievance Committee of the district court (Pet. App. A19), and the opinion of the committee of attorneys appointed to advise the Grievance Committee (Pet. App. A20-A36) are unreported. JURISDICTION The judgment of the court of appeals was entered on December 23, 1994. A petition for rehearing was denied on March 10, 1995. Pet. App. A18. The petition (1) ---------------------------------------- Page Break ---------------------------------------- 2 for a writ of certiorari was filed on June 8, 1995. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1 ).1 STATEMENT 1. a. Petitioner is an attorney currently suspended from practice before the courts of the State of New York. Based upon a complaint from a former client, Patricia Warmhold, in 1990, the Grievance Committee for the Tenth Judicial District of the Appellate Division of the New York State Supreme Court, Second Department, charged petitioner with five counts of professional misconduct. Two counts ___________________(footnotes) 1 Petitioner also invokes 28 U.S.C. 1257(a) and 24030-0. Pet. 3. Section 1257(a) authorizes review by writ of certiorari of "[flinal judgments or decrees rendered by the highest court of a State * * *_ where the validity of a statute of any State is drawn into question on the ground of its being repugnant to the Constitution * * * of the United States." petitioner con tends that Section 1257(a) provides a basis for jurisdiction here because his petition draws into question the validity of Rule 4 of the General Rules of the United States District Court for the Eastern District_ of New York, and Section 90 of the Judiciary Law of the State of New York (McKinney 1983 & Supp. 1995). Pet. 3. Rule 4 of the district court's local rules, however, is not a "statute of any State" within this provision. Wh]ile Section 90 of the New York Judiciary Law is such a statute, the final judgment of the New York courts upholding petitioner's sus- pension from the practice of law was entered on July 6, 1993. In re Jacobs, 619 N.E.2d 647 (N.Y. 1993). The 90 days within which a petition for review of that decision might have been filed has expired. See Sup. Ct. R. 13.1. Section 2403(b) does not contain an affirmative grant of jurisdiction, but provides for notification of the appropriate state Attorney General in cases where "the constitutionality of any statute of that State affecting the public interest is drawn in question." 28 U.S.C. 2403(b). ---------------------------------------- Page Break ---------------------------------------- 3 alleged that petitioner charged Warmhold excessive fees, in violation of disciplinary rule (DR) 2-106 of the New York Code of Professional Responsibility? Two counts alleged that petitioner improperly secured from Warmhold, and filed with the Clerk of Nassau County, two confessions of judgment for legal fees. In each instance, petitioner "failed to first provide [Warmhold] with a complete and full explanation of the character, effect, and purpose of the confession of judgment." Pet, App. A23-A24. A fifth count charged that petitioner improperly attempted to limit his malpractice liability to Warmhold. See id. at A3, A24. b. In July, 1990, the Appellate Division authorized the Grievance Committee to begin disciplinary pro- ceedings against petitioner and, in May, 1991, it appointed a special referee to hear evidence and to make a report. Pet. App. A3, A43, A45-A46. The referee held five hearings between June and November, 1991, at which both Warmhold and peti- tioner testified. Id. at A3. In June, 1992, the referee sustained the charges of misconduct and, on March 8, 1993, the Appellate Division, on application of the Grievance Committee, upheld that report. Id. at A3, A21-A27; In re Jacobs, 594 N.Y.S.2d 794 (1993). The Appellate Division suspended petitioner from the practice of law for a period of three years beginning on April 12, 1993, and directed him to vacate the ___________________(footnotes) 2 DR 2-106 of the New York Code of Professional Re- sponsibility (subsequently codified as Title 22 of the New York Code, Rules & Regulations) prohibits a lawyer from "enter[ing] into an agreement for, charging,] or collecting] an illegal or excessive fee" and sets forth various factors used to determine whether the fee is "excessive." DR 2-106(A) and (B)(1)-(8), 22 N.Y.C.R.R. 31200,11. ---------------------------------------- Page Break ---------------------------------------- 5 attorney based upon state discipline "unless the member of the bar concerned establishes by clear and convincing evidence" that the state disciplinary pro- ceeding suffers from an "infirmity of proof of misconduct" or "was so lacking in notice or oppor- tunity to be heard as to constitute a deprivation of due process;' or that imposition of discipline would result in "grave injustice." Pet. App. A15. See Selling v. Radford, 243 U.S. 46 (1917). b. The advisory panel met with petitioner on several occasions to determine whether an evi- dentiary hearing would be necessary to permit petitioner to demonstrate either a constitutional infirmity in the state proceedings or a grave injustice from federal discipline. Pet. App. A30-A35. The panel concluded that an evidentiary hearing was not necessary, that petitioner "was afforded a fair hearing before the [New York] [r]eferee, and that there [were] no constitutional infirmities" in the state proceedings. Id. at A35-A36. Petitioner sought orders from Chief Judge Platt to enjoin enforcement of the state suspension order and to require the advisory panel to hold an evidentiary hearing. Both requests were denied. Id. at A4, A31. On January 31, 1994, the district court's Grievance Committee unanimously adopted the opinion of the advisory panel and suspended petitioner from practice before the district court "during the period of his suspension" by the New York courts. Id. at A5, A19, c. The court of appeals affirmed. Pet. App. A1-A17. Concluding that it had jurisdiction over the appeal (id. at A5-A7), the court agreed with the Grievance Committee that "the state proceeding was fair and free of federal constitutional infirmity" (id. at A8). It rejected petitioner's claims of Fifth, Sixth, Seventh ---------------------------------------- Page Break ---------------------------------------- 6 and Eighth Amendment violations as based either on the "groundless assertion that an attorney subject to a state disciplinary proceeding enjoys the full panoply of federal constitutional protections that apply to a criminal prosecution" or on the "equally flawed assertions]" that the Seventh Amendment applies to state as well as federal actions and that petitioner was entitled to a jury trial with respect to the reasonableness of his fee. Id, at A8-A9. The court also rejected petitioner's procedural challenges to the federal court suspension. The court concluded that petitioner was not entitled to be served with the complaint triggering the federal disciplinary proceedings; that he had received adequate notice of the charges against him; and that the advisory panel's decision not to conduct an evidentiary hearing vio- lated neither due process nor district court Rule 4. Pet. App. A1O-A13 (citing Mathews v. Eldridge, 424 U.S. 319,335 (1976)). On March 10, 1995, the court denied a petition for rehearing with suggestion of rehearing in bane. Pet. App. A18. ARGUMENT Petitioner argues that the state disciplinary proceeding is void for lack of subject-matter juris- diction and that it violated a number of his consti- tutional rights. Petitioner also asserts procedural and substantive challenges to the Rule 4 procedure under which the federal Grievance Committee sus- pended him on the basis of the state court's order. 1. Petitioner contends that the "[f]ederal [c]ourts have the power to review State. Court disciplinary proceedings] and decisions" (Pet. 29). Throughout his petition, petitioner makes various constitutional ---------------------------------------- Page Break ---------------------------------------- 7 and procedural challenges to his suspension by the New York authorities. The issue before the court of appeals, however, was the validity of the federal district court's decision to suspend petitioner. The constitutionality and procedural integrity of the state proceedings are relevant only insofar as they may affect the federal district court's decision to rely on the state court's disciplinary proceedings 5 Suspension by a federal court does not auto- matically flow from suspension by a state court. See Theard v. United States, 354 U.S. 278, 281 (1957). Nevertheless, in Selling v. Radford, 243 U.S. 46, 50 (1917), this Court, noting that its "duty [was] not to review the action of the state court of last resort," held that "wrongful personal and professional con- duct, wherever committed, operates everywhere and must in the nature of things furnish adequate reason in every jurisdiction for taking away the right to continue to be a member of the Bar in good standing." Id, at 49. Based upon such considerations, the Court held that a federal court is entitled to rely upon a ___________________(footnotes) 5 The decision of the New York authorities suspending petitioner became final on July 6, 1993, when the New York Court of Appeals denied petitioner's application for permission to appeal. In re ,Jacobs, 619 N.E.2d 647. Petitioner did not seek review of that decision by this Court. See note 1, supra. The federal district court issued an order to show cause why petitioner should not be suspended from practicing before that court in light of the state court suspension, initiated disciplinary proceedings of its own, and suspended petitioner for a period of three years. "[L]ower federal courts possess no power whatever to sit in direct review of state court decisions." Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 296 (1970). See also District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); In re Rosenthal, 854 F.2d 1187, 1188 (9th Cir. 1988). ---------------------------------------- Page Break ---------------------------------------- 8 State's determination of an attorney's fitness to practice unless, from an intrinsic consideration of the state record, one or all of the following conditions should appear: 1. That the state procedure from want of notice or opportunist y to be heard, was wanting in due process; 2. that there was such an infirmity of proof as to facts found * * * 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 exist[s] * * * not to dis- bar * * * under principles of right and justice. Id. at 51. Under Selling, federal courts "will, in the absence of some grave reason to the contrary, follow the finding of the state" disciplinary authorities. In re Isserman, 345 U.S. 286, 288 (1953); Theard v. United States, 354 U.S. at 282 (state determination "brings title deeds of high respect"); In re Reinstatement of Leaf 41 F.3d 281,284 (7th Cir. 1994); In re Rosenthal, 854 F.2d 1187, 1188 (9th Cir. 1988)6 The provisions of Rule 4(g) applied by the district court in this case track the considerations set forth in Selling. See Pet. App. A15. Thus, the burden was on petitioner to ___________________(footnotes) 6 The two cases relied upon by petitioner as establishing the authority of federal courts to "review State Court discip- linary proceeding[s]" acknowledge the controlling standard established by Selling. See Pet. 29 (citing In re Gordon, 640 F.2d 1143, 1146-1150 (lOth Cir. 1981)); Getty v. Reed, 547 F.2d 971, 977 (6th Cir. 1977) ("relief from state disbarment proceedings can only be had in unusual and limited circumstances-and then only upon proof of federal constitutional violation"; citing Theard). ---------------------------------------- Page Break ---------------------------------------- 9 demonstrate "good cause" why the district court erred in relying on the New York court's decision to suspend him. In re Isserman, 345 U.S. at 289. Be- cause petitioner failed to make such a showing, the federal district court was entitled to rely on the State's disciplinary decision. Local Rule 4(d). 2. a. Petitioner claims that the federal court may not suspend him from practice because the state disciplinary proceedings were "void for want of subject matter jurisdiction." Petitioner argues that any action in which an attorney's fee is at issue is a suit at common law and, consequent] y, petitioner is entitled to a trial by jury. He contends that the reasonableness of his fee therefore cannot be the subject of a state disciplinary proceeding. Pet. 9-15. "Courts have long recognized an inherent au- thority" over the conduct of attorneys who practice before them, which authority "derives from the lawyer's role as an officer of the court which granted admission." In re Snyder, 472 U.S. 634, 643 (1985). See also Florida Bar v. Went For It, Inc., No. 94226 (June 21, 1995), slip op. 7, 17 (substantial state in- terest in regulating the conduct of state-licensed lawyers). Based upon that inherent authority, courts have also held that they have authority to protect a client from excessive legal fees. See, e.g., Curry v. Del Priore, 941 F.2d 730, 731-732 (9th Cir. 1991) (citing Coffelt v. Shell, 577 F.2d 30,32 (8th Cir. 1978)); Pfeifer v. Sentry Insurance, 745 F. Supp. 1434, 1443 (E.D. Wis. 1990); Wunschel Law Firm, P.C. v. Cla- baugh, 291 N.W.2d 331,334 (Iowa 1980). New York, by statute, has vested the authority over attorney discipline in the Appellate Division of the State Supreme Court. N.Y. Jud. Law 90(2) (Mc- Kinney 1983) Pet. App. A49. The New York Court of ---------------------------------------- Page Break ---------------------------------------- 10 Appeals has recognized that the Appellate Division has exclusive jurisdiction over matters of pro- fessional misconduct, Erie County Water Authority v. Western N. Y. Water Co.. 107 N.E.2d 479, 4.80-481, cert. denied, 344 U.S. 892 (1952), and has held that the Appellate Division's authority extends to legal fees charged by members of the New York Bar, Gair v. Peck, 160 N.E.2d 43, 51, 53 (1959) (The idea is frivolous that disciplinary power over attorneys is unrelated to the exaction of excessive fees."), cert. denied, 361 U.S. 374 (1960). Petitioner's contention that the Appellate Division lacked jurisdiction to determine whether he charged an excessive fee in violation of the New York Code of Professional Responsibility is consequently without merit.7 b. Petitioner also claims that Section 90(2) of the New York State Judiciary Law and Section 691.10 of the Rules of the Appellate Division are unconsti- tutional as applied to petitioner because they violate his "right to contract" with clients. Pet. 12-15. Under those provisions, petitioner is permitted only quantum meruit for his past services. This Court has long recognized that "freedom of contract is a qualified and not an absolute right," and does not provide "immunity from reasonable regu- lations and prohibitions imposed in the interests of the community." West Coast Hotel Co. v. Parrisk, 300 ___________________(footnotes) 7 Petitioner also errs in claiming that Section 474 of the New York Judiciary Law insulates his fee contract from disciplinary examination. Pet. 15. Section 474 provides that the right of an attorney and client to enter into a fee agree- ment "is not restrained by law," N.Y. Jud. Law 474 (McKin- ney 1983). The New York Court of Appeals rejected a similar contention in Gair v. Peck, 160 N.E.2d at 53. ---------------------------------------- Page Break ---------------------------------------- 11 U.S. 379,392 (1937) (quoting Chicago, B. & Q. R.R. v. McGuire, 219 U.S. 549, 567 (1911)). That is partic- ularly true of attorneys, who are subject to a "com- plex code of behavior" arising from their obligations, not only to their clients, but also to the system of justice. In re Snyder, 472 U.S. at 644 (quoting In re Bithoney, 486 F.2d 319, 324 (lst Cir. 1973)). As this Court has recognized: "Membership in the bar is a privilege burdened with conditions." [An attorney is] received into that ancient fellowship for something more than private gain. He [becomes] an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice. In re Snyder, 472 US. at 644 (quoting People ex rel. Karlin v. Culkin, 162 N.E. 487, 489 (N.Y. 1928)). "Freedom of contract" therefore does not insulate petitioner's conduct from disciplinary examination by the New York authorities. c. Petitioner claims that he has been suspended without a showing that he violated any statute, law, rule, regulation or "recognized or codified standard," in violation of due process. Pet. 27-29. The Appellate Division concluded that petitioner violated the pro- hibition against an "excessive fee" under the specific standards set forth in DR 2-106 of the New York Code of Professional Responsibility and that he obtained confessions of judgment and a release of liability from his client without properly informing her of the consequences of executing those documents. See, e.g., Greene v. Greene, 436 N.E.2d 496, 500 (N.Y. 1982) (client must be "fully and fairly informed of the consequences"). In accord with Selling, the federal district court properly followed that determination in ---------------------------------------- Page Break ---------------------------------------- 12 the absence of any showing by petitioner of any infirmity of proof, want of due process or other "grave reason" why he should not be suspended from practice. d. Petitioner argues that the state proceedings violated his rights under the Sixth (Pet. 22-25), Seventh (Pet. 19) and Eighth Amendments (Pet. 25- 26), as well as his right to due process (Pet. 24-25). 8 The Sixth Amendment, by its terms, applies only "in ** * criminal prosecutions]." United States v. Zucker, 161 U.S. 475, 481 (1896); United States v. Certain Real Property & Premises, 954 F.2d 29, 35 (2d Cir.), cert. denied, 113 S. Ct. 55 (1992). An attorney disciplinary proceeding is not a criminal prosecution to which the Sixth Amendment applies. Rosenthal v. Justices of the Supreme Court of California, 910 F.2d 561, 564-565 (9th Cir. 1990), cert. denied, 498 U.S. 1087 (1991); In re Daley, 549 F.2d 469, 474-477 & n.6 (7th Cir.), cert. denied, 434 U.S. 829 (1977); In re Anonymous Attorneys v. Bar Ass'n of 8 Petitioner's claims (Pet. 22-25) pertaining to alleged errors committed during the state disciplinary proceedings do not constitute violations of due process. See Selling v. Radford, 243 U.S. at 51. With respect to the testimony of Dominick Pelle, counsel for complainant's husband, petitioner failed to pursue with the Appellate Division the referee's denial of his request that Pelle be subpoenaed for the state court proceedings. See Pet. 21-22; Pet. App. A32-A33. Petitioner also failed to question the complainant regarding a tape- recorded conversation between them about legal fees, despite the fact that the transcript of the tape was available to petitioner during the hearing before the referee. Pet. 22-23; Pet. App. A31-A32. Finally, petitioner failed to demonstrate how "evidence of collateral acts" involving his representation of complainant in criminal proceedings unfairly led to his suspension. Pet. 23-24. ---------------------------------------- Page Break ---------------------------------------- 13 Erie County, 362 N.E.2d 592, 595 (N.Y. 1977); Goldman v. State Bar, 570 P.2d 463,468 (Cal. 1977). Petitioner claims that he was improperly denied a jury trial in the state proceeding. However, the Seventh Amendment does not apply to state court proceedings. Minneapolis & St. L.R.R. v. Bombolis, 241 U.S. 211,217 (1916). See Ex pate Wall, 107 U.S. 265,288 (1882). Petitioner complains that the Appellate Division improperly considered three prior incidents of discipline in ordering his three-year suspension from practice. Pet. 24-25; Pet. App. A26. Contrary to petitioner's assertion that the consideration of prior disciplinary action constituted "an attempt by the Grievance Committee to further charge the petitioner in this proceeding with prior acts" (Pet. 24), the Appellate Division considered prior disciplinary action only in the context of the appropriate disciplinary sanction. Pet. App. A26. The court did not err in taking petitioner's previous misconduct into account for that purpose. Even in a criminal proceeding, a court's consideration of a defendant's prior convictions in connection with imposition of sentence does not violate due process. See Williams v. New York, 337 U.S. 241,245-247, 250- 251 (1949); Nichols v. United States, 114 S. Ct, 1921, 1927-1928 (1994) (courts may consider defendant's past criminal behavior in imposing sentence even if no conviction resulted from that behavior). Indeed, this Court has recently reaffirmed the long-standing rule that "a sentencing judge `may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.'" Witte v. United States, 115 S. Ct. 2199, 2205 (1995) (quoting United ---------------------------------------- Page Break ---------------------------------------- 14 States v. Tucker, 404 U.S. 443,446 (1972)). Considera- tion of prior disciplinary sanctions in determining the sanction to be imposed in a civil disciplinary context is clearly constitutionally permissible. Petitioner also claims that the Appellate Division's consideration of his record of prior discipline violates due process because he did not receive notice that those acts "would. be a consideration_ in determining the sanction or punishment." Pet. 25. In determining the appropriate measure of discipline, the Appellate Division took into consideration a 1986 Letter of Reprimand, a 1986 Letter of Caution, and a 1990 Letter of Admonition. Pet. App. A26. Petitioner has not claimed that he was not the subject of those disciplinary actions, nor has he claimed that those disciplinary letters were not, in fact, issued. Peti- tioner therefore could not have been prejudiced by the Appellate Division's consideration of those letters? Petitioner argues that his suspension from prac- tice (and the resulting loss of employment and in- come) constitutes, cruel and unusual punishment in violation of the Eighth Amendment. Pet. 25-26, 28. Suspension from practice, however, is not punishment to which that Amendment would apply. Rather, it is remedial and serves the "purpose of preserving the courts of justice from the official ministration of 9 Petitioner has cited Sexton v. Arkansas Supreme Court Comm. on Professional Conduct, 730 F'. Supp. 285 (W.D. Ark. 1990), a case holding that due process required that the "plaintiff be given notice of facts that the prosecutor believes are relevant to fixing punishment, so that he may offer proof that those facts are untrue." Id. at 287. The Sexton court also held, however, that any error associated with fixing punishment in that case was rendered harmless because the facts considered by the committee on. professional conduct were true. Ibid. ---------------------------------------- Page Break ---------------------------------------- 15 persons unfit to practice in them." Ex parte Wall, 107 U.S. at 288-289; see In re Isseman, 345 U.S. at 289. 3. Petitioner's argument that the federal district court committed procedural errors in suspending him from practice is without merit. a. Petitioner claims that the federal district court did not notify him of the charges against him or provide him an opportunity to be heard in response to those charges. Pet. 16-17, 20-21. As the court of appeals noted, however, the district court's show- cause order to petitioner appended a copy of the. March 8, 1993 Opinion and Order of the Appellate Division, which "clearly sets out the charges" against petitioner. Pet. App. Al 1; see id. at A21-A27. Unquestionably, that notice was "of such nature as reasonably to convey the required information.') Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,314 (1950). b. Petitioner also claims that he was never served with "the Complaint" that would trigger the federal disciplinary proceedings, as required by Rule 4(i) of the district court's rules. Pet. 17, 20. As the court of appeals noted, however, Rule 4 does not require that a copy of the complaint be served on petitioner. Pet. App. A1O-A11. In this case, the "complaint" was the certified copy of the Opinion and Order of the Appellate Division suspending petitioner. The federal court forwarded a copy of that Order to petitioner along with the federal court's show-cause order. Id. at All. Neither the Constitution nor the dis- trict court's rules require additional notice of the charges to petitioner. Id. at Al 1, A16. c. Petitioner claims, Pet. 10, 16-17, that he was entitled to a de novo evidentiary hearing prior to ---------------------------------------- Page Break ---------------------------------------- 16 the imposition of discipline by the federal court. Following Selling, however, courts have generally held that attorneys are not entitled to a de novo evidentiary hearing before a federal court following state discipline consistent with due process. In re Rosenthal, 854 F.2d at 1188; In re Jafree, 759 F.2d 604, 605 n.1, 607 n.4 (7th Cir. 1985). Nor, as the court of appeals correctly noted, does Rule 4(i) require a full evidentiary hearing. See Pet. App. All, A16. In addition, contrary to his assertion that he has been afforded no "opportunity to be heard," petitioner had several meetings as well as a "formal hearing" before the advisory panel, during which the panel gave petitioner opportunities to demonstrate that an evidentiary hearing would be necessary to reveal an infirmity of proof, a want of due process in the state proceedings, or a risk of grave injustice from sus- pending petitioner on the basis of his state sus- pension. Id. at A13, A30-A31. Those federal proceedings also fully comported with any requirement of due process under the Fifth Amendment. See Ex parte Wall, 107 U.S. at 288-289. The court of appeals properly analyzed the relevant public and private interests involved under Mathews v. Eldridge, 424 U.S. 319, 335 (1976), and correctly held that the denial of a full federal evidentiary hearing did not violate petitioner's due process rights, given the low risk of an erroneous deprivation of petitioner's interest in practicing law and the important public interest in not expending judicial resources on a federal proceeding that would largely duplicate the prior state proceeding. Pet. App. A12- A13. d. Finally, petitioner contends that the federal proceedings violated his right to confrontation and ---------------------------------------- Page Break ---------------------------------------- 17 cross-examination under the Sixth Amendment (Pet. 21-22), his right to a jury trial in violation of the Seventh Amendment (Pet. 16, 19), and the Eighth Amendment's prohibition of cruel and unusual punish- ment (Pet. 28). As noted above, the Sixth Amendment applies only to criminal proceedings. A disciplinary proceeding is not a suit at common law and does not come within the purview of the Seventh Amendment. Nor does suspension from the practice of law con- stitute punishment within the meaning of the Eighth Amendment. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. DREW S. DAYS, III Solicitor General FRANK W. HUNGER Assistant Attorney General MICHAEL JAY SINGER JOHN P. SCHNITKER Attorneys AUGUST 1995