Commercial Litigation and Arbitration

Fed.R.App.P. 46 — “Conduct Unbecoming a Member of the Bar” — ABA Standards for Imposing Discipline — Recklessness (Good Quote)

From In re Girardi (Franco v. Dow Chem. Co.), 2010 U.S. App. LEXIS 14292 (9th Cir. July 13, 2010):

"A member of the court's bar is subject to suspension or disbarment by the court if the member ... is guilty of conduct unbecoming a member of the court's bar." Fed. R. App. P. 46(b)(1)(B); see Gadda v. Ashcroft, 377 F.3d 934, 947 (9th Cir. 2004) (listing examples of "conduct unbecoming"). Furthermore, the court "may discipline an attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule." Fed. R. App. P. 46(c). A court need not find intentional conduct to discipline an attorney for conduct unbecoming a member of the bar pursuant to Federal Rule of Appellate Procedure 46; lack of diligence that impairs the deliberations of the court is sufficient. See Gadda, 377 F.3d at 947.

"Conduct unbecoming a member of the court's bar" means "conduct contrary to professional standards that shows an unfitness to discharge continuing obligations to clients or the courts, or conduct inimical to the administration of justice." In re Snyder, 472 U.S. 634, 645, 105 S. Ct. 2874, 86 L. Ed. 2d 504 (1985)***. In addition to case law and applicable court rules, the court may consider codes of professional conduct in determining whether an attorney's conduct falls below the standards of the profession. See In re Snyder, 472 U.S. at 645, 646 n.7 (referring to state rules of professional conduct, and the American Bar Association's ("ABA") Model Rules of Professional Conduct and Model Code of Professional Responsibility).

Here, the conduct identified in the order to show cause clearly constitutes "conduct unbecoming a member of the court's bar," because it violates the ABA's Model Rules as well as California rules of professional conduct. ***

In assessing the appropriateness of a particular disciplinary sanction, this court may consider, although it is not bound by, the ABA's Standards for Imposing Lawyer Sanctions, which were promulgated to aid enforcement of the ABA's Model Rules of Professional Conduct. See United States v. Swanson, 943 F.2d 1070, 1076 (9th Cir. 1991); see also ABA Joint Comm. on Prof'l Standards, Standards for Imposing Lawyer Sanctions (1984, rev. 1992), available at ("Standards"). Under these standards, a court should generally consider: (a) the duty violated; (b) the lawyer's mental state; (c) the actual or potential injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors. See Standards § 3.0. The Standards also set out various forms of suggested discipline based on the type of misconduct involved. See id. §§ 4.0-8.4. ***

On the record before us, the conduct of the various Respondents falls somewhere between Standards § 6.12 and § 6.13. As Judge Tashima explained in assessing sanctions under 28 U.S.C. § 1927, all of the Respondents were reckless in failing to verify the truth of the statements made to this court about the Notary Affidavit and the Judgment it purported to represent. The ABA Standards do not, however, recognize the mental state of "recklessness." Standards § 6.12 applies where there is actual knowledge that false statements and documents have been submitted to the court, while Standards § 6.13 applies where the submission of false statements or documents (and the failure to take remedial action) is the product of negligence.

[Footnote 4] "Recklessness," of course, may have different meanings in different contexts. See, e.g., Prescod v. AMR, Inc., 383 F.3d 861, 870 (9th Cir. 2004) (per curiam) (applying California tort law identifying recklessness where "the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow"); Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1568-69 (9th Cir. 1990) (en banc) (defining the "recklessness" that constitutes the scienter necessary for a violation of securities law as conduct "involving not merely simple, or even inexcusable negligence, but an extreme departure from the standards of ordinary care, and which presents a danger of misleading buyers or sellers that is either known to the defendant or is so obvious that the actor must have been aware of it") (quotation omitted). In the instant context, recklessness might be defined as a departure from ordinary standards of care that disregards a known or obvious risk of material misrepresentation.

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