Greer's Refuse Service, Inc., and Donald E. Wilkes v. Browning-Ferris Industries of Delaware, Browning-Ferris Industries of Florida
Docket: 87-3060
Court: Court of Appeals for the Eleventh Circuit; June 6, 1988; Federal Appellate Court
The United States Court of Appeals, Eleventh Circuit, affirmed the suspension of attorney Donald E. Wilkes from practicing in the Middle District of Florida. Wilkes, a member of the Florida Bar since 1950 and the New York Bar since 1953, was disbarred in New York in 1960 due to professional misconduct. Following his disbarment, the Florida Bar initiated disciplinary proceedings against him in 1963, which initially led to a recommendation for permanent disbarment. However, the Florida Supreme Court found that the referee had not properly evaluated the charges and remanded the case for further examination. On remand, the referee determined that two charges were unsubstantiated, recommending a five-year disbarment instead. The Florida Supreme Court ultimately decided that Wilkes should be suspended until he could demonstrate rehabilitation, a decision Wilkes has never challenged, citing a principle that seeking reinstatement would imply guilt regarding the New York charges. In 1983, Wilkes was disqualified from representing a plaintiff in a case in the Middle District due to his continued suspension in Florida, leading to the district court's decision to suspend him from further practice.
The court reversed the district court's decision regarding Wilkes' suspension under Local Rule 2.04(b), emphasizing that the district court must conduct an intrinsic evaluation of the records from the state proceedings in New York and Florida before imposing suspension. Citing precedents from Selling v. Radford and others, the court outlined that a federal court could exclude an attorney based on state disbarment unless specific due process violations or significant proof infirmities were present. Upon remand, the district court reviewed the relevant records and found no infirmities, thus reinstating Wilkes' suspension while noting that he could seek reinstatement to the federal bar if reinstated to the Florida Bar. Wilkes contested this process, asserting he deserved a trial de novo regarding his fitness to practice; however, this interpretation misrepresented the appellate mandate. The court clarified that federal district courts have the authority to set rules for attorney conduct and that the Middle District’s rules, which condition admission on state bar status, are valid. Wilkes' admission to the Middle District was based on his standing in the Florida Bar, making the Florida suspension the basis for his federal suspension. Therefore, the district court was correctly directed to examine the underlying records for any infirmities as outlined in Selling.
If no infirmities are found in the Florida suspension, the district court can use it as a basis to suspend Wilkes from practice in the Middle District. If infirmities are identified under the Selling standard, the court must independently assess Wilkes' fitness to practice law. The district court adhered to the mandate by reviewing the Florida suspension record and found no infirmities. The court's order to suspend Wilkes was consistent with Local Rule 2.04(b), and it stated that Wilkes could be reinstated upon regaining his Florida Bar status.
Wilkes' claim for a de novo trial on his fitness to practice was dismissed. The court also examined records from both the Florida suspension and the New York disbarment, as the former was based on the latter. Wilkes contended that the New York disbarment was constitutionally flawed, arguing he was not properly notified of a charge regarding the misappropriation of escrowed funds. The New York proceedings indicated he had notice and an opportunity to respond, and evidence suggested he engaged in misconduct.
Although the disbarment order incorrectly referred to the funds as "client's funds" instead of "escrowed funds," the court found that this language did not constitute a lack of notice for due process. Wilkes was adequately informed of the misappropriation charge, leading to the conclusion that his disbarment was valid. The court ultimately rejected Wilkes' argument regarding the noticed charge.
The district court's suspension of Wilkes under Local Rule 2.04(b) was upheld, with the court correctly interpreting the mandate in Greer's. There was no error found regarding the disciplinary records' integrity, which lacked the issues identified in Selling. The court affirmed the suspension, noting three specific charges against Wilkes: misappropriation of client funds, improper communication with a represented party, and assisting a client in obtaining a void divorce. Additionally, Wilkes failed to appear at the disbarment proceeding and seemingly abandoned his practice, suggesting another charge of misconduct. The referee determined that two charges from the New York disbarment order were unsupported by the record.
Local Rule 2.04(b) stipulates that suspension or disbarment by the Florida Supreme Court or any competent jurisdiction results in automatic suspension from practice in the district court, although attorneys may petition for relief. Wilkes is recognized as a member in good standing of the Southern District federal bar; however, his previous success there does not influence the current case, as each court independently determines its bar membership policies. Local Rules also specify that only members in good standing of The Florida Bar can gain general admission to the district court bar, and Wilkes has not claimed membership in any U.S. district court bar outside Florida. Relevant statutes provide courts authority to establish and amend their rules.
The Supreme Court possesses the authority to use its supervisory power to ensure local rules align with principles of justice, as demonstrated in Frazier v. Heebe, where a local rule barring Louisiana Bar members from district court admission based solely on residency or office location was deemed irrational and invalidated. The Court noted that while state bar membership can be a reasonable requirement for admission, the specific rule in question was not justified as a means of ensuring attorney competence.
In the context of Wilkes' case, the district court appropriately focused on the New York record related solely to the first two charges leading to his Florida suspension. Wilkes raised additional claims against his disbarment and suspension, but the court deemed these unworthy of further discussion. He argued that the long passage of time—thirty years since his misconduct—should exempt him from suspension based on the precedent set in Theard v. United States, where an attorney's suspension was overturned due to the significant delay between the misconduct and the disbarment.
However, the court distinguished Wilkes' situation from Theard, noting that his disciplinary actions were initiated within a year of the misconduct, with the Florida suspension following three years after the New York disbarment. Consequently, there was no concern regarding stale evidence in Wilkes' case. Additionally, unlike the attorney in Theard, there was no indication that Wilkes was suffering from a debilitating mental illness at the time of his misconduct.
