Petition for Writ of Certiorari — Wilkes v. United States District Court
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r Supreme Court, U.S.
88-528 FILED
_ SUG 31 1988
JOSEPH F. SPANIOL, JR,
In Tye a
Supreme Court of the Unites States
October Term 11988
DONALD E. WILKES,
Petitioner.
—V.—
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Respondent.
PETITION FOR A WRIT OF
CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
William H. Maness, Esquire
801 Investors Building
118 West Adams Street
Jacksonville, Florida 32202
(904) 353-5786
ATTORNEY FOR PETITIONER
1. QUESTIONS FOR REVIEW
QNE: Whether this Court's Selling! decision
mandates that a Federal Court find a lawyer unfit to
practice as a precondition to enforcement of a State
Court disbarment - a finding which was not made, and
could not have been made, in Wilkes’ case.
TWO: Whether a Federal Court - consistent with
Selling, Theard,2 and Ruffalo? - has power to
disbar a Lawyer, derivatively, as in Wilkes’ case,4
notwithstanding that the Court, expressly, finds that the
two offenses, involved, are "not very serious” - that
they were committed, if at all, thirty years past - and
that, as to one of them, the Lawyer was convicted on a
charge neither made nor tried.
1 Selling v. Radford, 243 US 46 (1917).
2 Theard v. U.S., 354 US 278 (1957).
3 In Re Ruffalo, 390 US 544 (1968).
4
The distinction, if any, between indefinite suspension and
disbarment is verbal, largely, and the terms will be treated as
interchangeable, here. In Re Fleck, 419 F.2d 1040 (6th Cir.
1969) cert den 397 US 1074; In Re Abrams, 521 F.2d 1094
(3rd Cir. 1975) cert den 423 US 1038.
ii
THREE: Whether a Lawyer, as in Wilkes’ case, is
denied procedural due process, per Ruffalo, where a
Federal Court notices him to answer for offenses,
specified in a State Court disbarment judgment,
whereupon The Federal Court, without further notice,
finds that, as to one of the offenses, he was convicted
on a charge never made but upholds the conviction,
nonetheless, upon the basis of a revised theory.
EQUR: Whether Ruffalo, supra, enjoins that a
Federal Court, in a derivative disciplinary proceeding,
hear the charges and proofs, de novo, as a condition
upon enforcement of a State Court disbarment.
FIVE: Whether the constitutional standards,
articulated in Schware,> which control State Court
proceedings - having to do with admissions and
punishments of attorneys-operate, equally, in Federal
Court proceedings, of like nature, and therefore inhibit
exclusion, or expulsion, from a Federal Court Bar
except upon competent proof in the record sufficient to
5 Schware v. Bd. of Bar Examiners, 353 US 232
(1957).
iii
support a rational inference of unfitness-taking into
account the age and nature of any acts of misconduct,
charged - and the circumstances surrounding their
commission.
2. PARTIES TO THE PROCEEDING
The United States Attorney, Middle District of
Florida, Jacksonville, Division, though not named in
the caption, was appointed by The Court to succeed
an adversary party, Browning-Ferris Industries, Inc., in
prosecution of the proceeding against Wilkes.
A F NTENT
PAGE
QUESTIONS FOR REVIEW i
PARTIES TO THE PROCEEDING iii
TABLE OF AUTHORITIES iv
REFERENCE TO OPINIONS 1
STATEMENT OF JURISDICTIONAL
GROUNDS 2
STATUTES INVOLVED 2
iv
JURISDICTION OF THE DISTRICT
COURT 2
STATEMENT OF THE CASE 3
ARGUMENT 11
APPENDIX
PROOF OF SERVICE vi
TABLE OF AUTHORITIES
Abrams, In re, 521 F.2d 1094
(3rd Cir. 1975) cert den i
423 US 1038
Ashton, In re, 768 F.d 74
(3rd Cir. 1984) 20,21,24
Ass'n Bar City of New York v.
isserman, 271 F.2d 784
(2nd Cir, 1959) 14
Berkan, In re, 648 F.2d 1386
(1st Cir. 1981) 20,21
Bradley v. Fisher, 80 US (13 Wall)
335 (1872) 16
Brady v. Maryland, 373 US 83 (1963) 8,21
Braverman, In re, 549 F.2d 913
(4th Cir. 1976) 14
Burr, Ex parte, 22 US (9 Wheat)
529 (1824) 15,16
Comm. Prof. Ethics v. Johnson,
447 F.2d 169 (3rd Cir. 1971) 20
Dreier, In re, 258 F.2d 68
(3rd Cir. 1958) 14
Echeles, In re, 430 F.2d 347
(7th Cir. 1970) 14
Vv
Fieck, In re, 419 F.2d 1040 \
(6th Cir. 1969) cert den i,14
397 US 1074
Florida Bar v. Wilkes, 200 So.2d 4
177 (Fla, 1967)
Florida Bar v. Wilkes, 199 So.2d
472 (Fla, 1967) cert den 6
390 US 983
Fiorida Bar v. Wilkes, 179 So.2d
193 (Fla, 1965) 5
Frazier v. Heebe, 482 US
1987 22
Garland, Ex parte, 71 US
(4 Wall) 333 16
Gordon, In re, 640 F.2d 1143
(10th Cir. 1981) 22,24
Greer's Refuse Service and
Donald E. Wilkes v. Browning-
Ferris Industries, Inc.,
782 F.2d 918 (11th Cir. 1986) 8,9
MacNeil, In re, 266 F.2d 167
(ist Cir. 1959) 14
Mattox, In re, 758 F.2d 1362
(10th Cir. 1985) 20,21 ,24
People v. Finnegan, 182 NE 792
(Ill, 1932) 19
Phelps, In re, 637 F.2d 171
(10th Cir. 1981) 14,20,24
Robinson, Ex parte, 86 US
(19 Wall) 505 (1873) 17
Ruffalo, In re, 390 US 544 (1968) i,8,19,20
Sacher, In re, 347 US 388 (1954) 14
Schell, In re, 12 NYS 790
(NY, 1st Dept. 1890) 19
Schware v. Bd. Bar Examiners,
353 US 232 (1957) ii,23,24
PAGE
Selling v. Radford, 243 US i,11,12,13
46 (1917) 14,15,25
Snyder, In re, 472 US 634 (1985) 15
Theard v. U.S., 354 US 278 (1957) i,14,15,25
Thies, In re, 662 F.2d 771
(D.C. 1980) 14
Wilkes, In re, 494 F.2d 472
(5th Cir. 1974) 4,6,7
28 USC 1254 2
Middle District Rule 2.04(b) 2
3. REFERENCE TO OPINIONS
The Official Reports of Wilkes’ case are:
In Re Wilkes, 201 NYS 2d 524 (ist Dept, 1960);
Florida Bar v. Wilkes, 179 S. 2d 193 (FLA, 1965);
Florida Bar v. Wilkes, 199 S. 2d 472 (FLA, 1967)
cert den 390 US $83; Florida Bar v. Wilkes, 200 S.
2d 177 (FLA, 1967); In Re Wilkes, 494 F. 2d 472 (5th
Cir. 1974); Greer's Refuse Service and Donald
E. Wilkes v. Browning-Ferris Industries, Inc.,
782 F. 2d 918 (11th Cir, 1986); Greer's Refuse
Service and Donald E. Wilkes v. BFI, Inc., __
F.2d _s (11th Cir, 1988)
2
4. STATEMENT OF JURISDICTIONAL
GROUNDS |
The Judgment, below, was entered April 16, 1988.
A Petition for Rehearing, in banc, was denied June
6, 1988.
28 USC 1254 confers jurisdiction on This Court.
5. STATUTES INVOLVED
The due process clauses of The Federal
Constitution, as provided for in The Fifth and
Fourteenth Amendments, are involved together with
Local Rule 2.04(b), United States District Court, Middie
District of Florida. (App-110)
6. JURISDICTION OF THE DISTRICT
COURT
Jurisdiction in the Court of first instance was
invoked under Local Rule 2.04(b), supra.
3
7. STATEMENT OF THE CASE
New York Disbarment
March 4, 1959, The New York City Bar Association
charged Wilkes with three offenses viz (1)
communicating with an adversary party in violation of
Canon 9 (2) failure to return $600.00 to an adversary
party in breach of an escrow Agreement and (3)
misadvising a client as to the validity of a Mexican
divorce. (App-38, 54-56)
Charge 2 was preferred by an adversary party
whose written complaint, further, accused Wilkes of
anti-Semitism - an accusation which pervaded the
ensuring Grievance Committee Hearings.”
June 21, 1960, The First Department disbarred
Wilkes under an Order which, as to Charge 2,
6 The March 4th Notice was limited to Charges 1 and 2.
Charge 3 was served after the proceeding was in progress.
(App-39)
7 The adversary party wrote a series of follow-up letters to
the Grievance Committee republishing the anti-Semitism
invective and assailing him for many other villainies. The record
shows the Committee disavowed reliance upon such charges
but tried them, anyway. (App-56,69)
4
convicted him of an offense neither charged, nor tried,
i.e. that he had converted $600.00 of his client's funds,
201 NYS 2d 524.
Florida Suspension
In 1963, The Florida Bar began a derivative
proceeding based upon the New York Judgment.®
Wilkes defended, arguing, among other things, that
the offenses charged were minor - that, as to charge 2,
he had been convicted on a charge not made - that
none of them was supported by the evidence - that the
proceeding was unfair for The Committee was more
concerned with whether he was an anti-Semite than a
professional delinquent, etc.9
6 The Fiorida Bar refused to accept his annual dues, thus,
effectively, suspending him, pendente lite, though such
action, at the time, was not authorized by The Integration Rule.
Wilkes moved The Supreme Court to compel acceptance.
(App-76) His Motion was pigeonhoied, for four years, until
denied, as moot, on June 8, 1967, a month after The Court's
formal suspension order was entered, April 19, 1967. Wiikes
v. The Florida Bar, 200 S. 2d 177.
9 in Re Wilkes, 494 F.2d 474 (5th Cir. 1974).
5
At a Referee's hearing, The Florida Bar introduced
a pamphlet having to do with a lecture Wilkes had
given on Existentialism.
The pamphlet had the effect intended.
The Referee was inflamed.
His Report recommended sustention of all charges
and disbarment - to which recommendation he
Superadded a ferocious denunciation of Wilkes for
intellectual and religious crimes, that is; that he was
not a church-goer and believed in Existentialism - a
philosophy "wholly repugnant to the reputable practice
of the law" which "motivated" his misconduct and
rendered him unfit.1°
The Florida Bar's Board of Governors adopted The
Report, in toto.
The Florida Supreme Court reversed and
remanded for reconsideration before the same
Referee despite Wilkes' Motion that he be
disqualified.11
10 Florida Bar v. Wilkes, 179 S.2d p. 200-201.
11 Ibid.
6
Without further hearings, a second Report was
published recommending that the Charge 1 and
Charge 2 convictions be ratified - that Charge 3 be
dismissed - and that disbarment, for five years, be
ordered. 12
The Board of Governors entered Judgment,
accordingly, and The Supreme Court affirmed but for
modification of the sanction to provide for indefinite
suspension “until such time as...(Wilkes) shall
demonstrate...he has rehabilitated himself
and...should be reinstated..."15
Wilkes has not applied for reinstatement.'4
hern Distr in
January 23, 1950, Wilkes was admitted in The
Southern District of Florida and, subsequently, was
grandfathered into The Middle District.
12 Florida Bar v. Wilkes, 199 So.2d 473.
13 Ibid.
14 494 F.2d 472.
In 1971, he sought to file a “Motion To Confirm
Credentials” in The Middle District but on the advice of
Chief Judge McRae, now deceased, withdrew the
tender and brought on the Motion in The Southern
District - assured that the outcome, there, would be
recognized in both Districts. (App-75)
The Motion was dismissed but The Fifth Circuit
reversed, ordered Wilkes reinstated, pendente lite,
and remanded for a hearing, de novo on the State
Court charges.'5
A Grievance Committee studied the New York and
Florida records'® and, applying a de novo standard of
review, submitted a hundred page Report, December
30, 1977, finding that "...there now exists no present
basis for holding...Wilkes disqualified to practice law
for Federal in thi Shad
15 494 F.2d 476-477.
16 Live testimony, including Wilkes’, was taken, also.
17 The Report was ordered sealed for reasons unknown
though Wilkes speculates that publication would have
embarrassed The State Bar Authorities, most especially, New
York's for allowing the proceeding, there, to be used as a
forum to try Wilkes for suspected anti-Semitism. Wilkes has
8
The Southern District, in banc, August 10, 1978
confirmed Wilkes’ Credentials. (App-100-109)
le Distri
December 15, 1983, Browning-Ferris, Inc., an
adversary party in an antitrust action, moved to
disqualify and suspend Wilkes, in The Middle District,
based upon his 1967 Florida Bar suspension.'®
He submitted a copy of The Southern District's
1978 Order and pointed out that Judge McRae had
vouched that the adjudication, there, would control in
The Middle District, as well. (App-90-96)
Nevertheless, a Three Judge Panel convened and
ordered him stricken, peremptorily. (App-77-87)
been denied access to the Report but was able to arrange for
The Southern District to offer to make it available to The Middle
District Pane!. The offer was declined. 782 F.2d p. 2127 n 2.
The Report is exculpatory. A disbarment proceeding is quasi-
criminal. In Re Ruffalo, supra, The Panel's action, thus
trespassed the spirit, if not the letter, of Brady. Brady v.
Maryland, 373 US 83. Certainly, it evinced a studied
disregard for truthfinding - the talismanic search which Federal
pent are obliged to encourage in all controversies in their
main.
18 782 F.2d 2126.
9
The Eleventh Circuit, invoking the Fifth Circuit's
prior Wilkes decision, as controlling precedent,'9
reversed.20
Wilkes was allowed, on remand, to file a
"Memorandum Seeking To Show Why (...He) Should
Not Be Suspended." (App-33-72)
December 23, 1986, The Panel suspended him,
again, under an Order finding and concluding:
That his plea - that he did not take a client's funds -
was well-founded - and, further, he was correct in
asserting such a charge had never been made or
tried; (App-23)
That, actually, Charge 2 was preferred by an
adversary party who complained that Wilkes had
refused to return $600.00 deposited with him in return
for promised dismissal of a bastardy action and
issuance of a general release; (App-29-31)
19 Ibid.
ru The Middle District Panel, on remand, declined to reinstate
Wilkes, pendente lite, but yielded in the aftermath of a
Mandamus proceeding.
10
That The New York Court "simply _misspoke in
ri ‘client' ". (App-23)
That the other charge - having to do with Canon 9 -
"stems from a letter he wrote on October 1, 1958 to the
defendant who was then represented by counsel, in a
personal injury action in which Wilkes represented the
Plaintiff"; (App-31)
That "In all fairness”, the charges involved
".Offenses...(that) are just not very serious"; (App-30)
That, nonetheless, he would be suspended “until
he has gained reinstatement by the Florida Bar..."2'
(App-31)
That "If he has been punished enough - and that
r r- ni
| f ri for
reinstatement.” (App-28)
No finding was made as to Wilkes’ fitness, vel non.
21 The Order purging Wilkes, in The Middle District, states
that he is not a "member of any organized Bar." (App-30) He is
in good standing in The Southern District and in The Eleventh
Circuit both of which concluded his fitness is unimpaired.
11
8. ARGUMENT
Question One: Fitness Factor
The Court of Appeals affirmed under an Opinion
which, passing over any mention of the minor nature of
his offenses, as found by The District Court, declared
that "an independent determination whether Wilkes
was fit to practice law" was not required - that the
“obvious implication of our mandate,” on first Appeal,
was that such a requirement could be dispensed with
unless “the record revealed...infirmities identified in
Selling."
The Court's dialectics circumvents Selling in the
name of Selling.22
22 Wilkes has come to think that disciplinary proceedings are
a kind of Gulag Archipelago, American-Style, and that
Professional Canons are not unlike Article 58 of The Soviet
Criminal Code of 1926 - an Article which, with its fourteen
Sections, in Solzhenitzyn's words, has an “all-encompassing
embrace” guaranteeing that “no step, thought, action or lack of
action . . . (can) not be punished” - not “so much through the
exact terms of its sections as in their extended dialectical
interpretations.” Alexander Solzhenitsyn, The Gulag
Archipelago, p. 60 Harper & Row. A point, made again and
again, by Solzhenitsyn, is that, once targeted for prosecution,
an accused learned that his guilt, or innocence, of specific
offenses - was irrelevant - that the aim was to compel his
submission - that his alleged crimes were of no concer to the
authorities but any show of independent will was - and that he
was made to understand he would be caught in the toils of
12
Nevertheless, Wilkes’ Appeal, plainly, was
disposed of on a ground which poses direct conflict
with Selling's strictures, the chief of which are:
That, in a derivative disbarment proceeding, a
Federal Court's overriding concern must be to
determine for itself, whether the “necessary effect of
the ...(State Court) action...nhas been to absolutely
destroy the condition of fair private and professional
character, without the possession of which there could
be no possible right to continue to..." practice. 243 US
50
That, accordingly, a State Court disbarment should
not be recognized, derivatively, where intrinsic
consideration of the record discloses “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 that...the
Article 58, for life, or, as long as, he resisted. That is the
message Wilkes got from The Panel's Order of Suspension,
December 23, 1986, and The Court of Appeal's affirmance,
behind an “extended dialectical interpretation” of Selling.
13
conclusion on that subject" should not be accepted as
"final"; 243 US 51
That a Federal Court should be mindful, in such an
investigation, that a determination to disbar, or not,
"must depend upon the character of the acts of
misconduct and wrong relied upon, of the place of
their commission and the nature of the proof relied
upon to established their existence.” 243 US 48-49
Selling, clearly, impressed a duty upon The
District Court to determine, independently, whether the
State Court charges and proofs operated to
"destroy...(Wilkes') fair personal and professional
character” taking into account the "character of the acts
of misconduct” charged, the time and circumstance of
their commission and “the nature of the proof relied
upon to establish their existence.”
In dispensing with such a determination, in Wilkes’
case, The Court of Appeals treated Selling as a mere
ceremonial barrier to automatic enforcement of his
14
State Court disbarment - satisfied by a polite, but idle,
show of compliance.23
The decision conflicts with Selling, supra, and
Theard, supra, and the decisions of the several sister
Courts of Appeals which have spoken to the
question.24
Question Two: Arbitrary and Excessive
Punishment
The Eleventh Circuit, here, opaquely, but
effectively, held that a District Court Panel was
empowered to enforce a State Court disbarment
23 The District Court's first Order, candidly, avowed a
persuasion in favor of automatic enforcement, saying: that
"the premise of Wilkes’ position is that . . . (This) Court should
.. . determine for itself his fitness to practice before it without
regard to his current suspension in this state” - that, however,
his position was not to be countenanced for “to do so would
engage this Court in . . . discipline practices contrary to those
... dictated by practicality and comity and would take this
Court down a path it does not wish to follow.” (App-84)
24 In Re Thies, 662 F.2d 774 (D.C. Cir.1980); In Re
Fleck, supra, fn 4; In Re Dreler, 258 F.2d 68 (3rd Cir. 1958)
Matter of Phelps, 637 F.2d 171 (10th Cir. 1981); Ass'n
Bar City of New York v. Isserman, 271 F.2d 784 (2nd
Cir. 1959); in Re Braverman, 549 F.2d 913 (4th Cir. 1976);
in Re Echeles, 430 F.2d 347 (7th Cir. 1970); In Re
MacNeill, 266 F.2d 167 (ist Cir. 1959); See, too, In Re
Sacher, 347 US 388 (1954).
15
which, The Panel admitted, predicated nonserious
offenses committed, if at all, thirty years, ago.
The decision conflicts, specifically, with Theard,
supra and Selling, supra - which ordain that a
Federal Court must not genuflect to a State Court
disbarment - that "Disbarment being the very serious
business it is..." 354 US 282- must not be decreed,
derivatively, for minor offenses. 243 US 50-51.
Indeed, whether in original or derivative
proceedings, Federal Courts "admit and suspend
attorneys as an exercise of their inherent power"25
applying Federal standards2® - and the decision, in
Wilkes’ case, conflicts with a rule of law, governing
disbarments, enshrined in generations of This Court's
decisions, from Burr,27 decided in 1824, to Snyder,28
decided in 1985.
®
In Re Snyder, 472 US 634, p. 645 n. 6.
26 Ibid.
27 __—«&Ex Parte Burr, 9 Wheat 529.
28 in Re Snyder, supra, fn 25.
16
This Court, for example, has admonished:
That “the profession of an attorney is of great
importance to an individual..." and the “right to
exercise it ought not to be lightly or capriciously taken
from him” - but, contrariwise, should be treated with
"great moderation” and "great caution."29
That an Attorney's office is not held as “a matter of
grace or favor... a mere indulgence, revocable at the
pleasure of the courts” - but is *...a right of which he
can only be deprived...for moral or professional
delinquency.”3°
That “removal from the Bar should...never be
decreed where any punishment less severe...would
accomplish the end desired."3'
That the "power to disbar...can only be exercised
where there has been such conduct...as shows...(an
29 Ex Parte Burr, supra.
30 Ex Parte Gariand, 71 US (4 Wall) 33.
31 Bradley v. Fisher, 80 US (13 Wall) 335 (1872).
17
attorney) to be unfit to be...(a member) of the
profession."32
This Court, nor any Federal Court, other than The
Eleventh Circuit, in Wilkes’ case, has ever tolerated a
Lawyer's excommunication for offenses, concededly,
antique in time and "just not very serious” in nature.
The conflict is plain.
The question is important.
Question Three: Denial of Procedural Due Process
The Charge 2, made in New York, was that Wilkes
refused to return $600.00 to an adversary party
deposited pursuant to a letter agreement, written by
the party's attorney, the terms of which purported to
obligate Wilkes to dismiss a bastardy action and
deliver a general release from his client.
The charge on which he was convicted, as recited
in The New York Court's disbarment, was that he had
misappropriated the funds from his client. (App-23)
32 Ex Parte Robinson, 86 US (19 Wall) 505 (1873).
18
Before The Middle District Panel, Wilkes argued
that his conviction on such an unmade, untried charge
denied him procedural due process within the reach of
Ruffalo.
The Panel, while admitting the New York Court
"misspoke in referring to a client's funds” (App-23) did
not disturb the conviction-reasoning that it should be
revised to conform to the charge, actually, made -
although The Court sidestepped finding that the
evidence supported even that charge. (App-29-30)
The Court of Appeals confessed, too, that "the New
York Court's reference to a client's funds...was...not the
best choice of words” - but opined Wilkes
"cannot...seriously claim he was trie¢ on an unnoticed
charge” - in that he was noticed for converting “funds
transmitted to him in escrow by an opposing lawyer” -
and the “record contains evidence that would support
the conclusion that...(he) engaged in the misconduct
charged."33
33 The Court of Appeals, obviously, did not inspect the
record which shows Charge 2, as made, was not proven - that
the alleged escrow agreement was a fiction. (App-29) The
19
The District Court and The Court of Appeals, then,
did not dispute that, without revision, Wilkes' Charge 2
conviction, as specified in the State Court disbarment,
would not survive Ruffalo scrutiny since he had no
notice, at all, that he was to be put on trial for taking a
client's funds.
Both Courts, however, were oblivious of any
Ruffalo problem created by sustaining the conviction,
as revised, notwithstanding that the end result was,
merely, a reverse replay of the State Court scenario,
that is; The District Court summoned him to defend
, against a charge of taking a client's funds, but, without
further notice, convicted him of taking an adversary
party's funds.
Ruffalo forbids Federal Court recognition of a
professional sanction based upon acts not specifically
Court overlooked, too, that Charge 2 did not state cognizable
misconduct. Disputes between lawyers and adversary parties
are litigated and resolved in “ordinary” legal procedures,” not
before disciplinary bodies. Wilkes' Charge 2 prosecution was
unprecedented. People v. Finnegan, 182 NE 792 (ill,
1932); In Re Schell, 12 NYS 790 (NY, 1st Dep, 1980).
Indeed, here, the adversary party sued Wilkes for conversion
and lost. (App-59)
20
noticed before the proceeding was commenced. 390
US 551
Aftfirmance of Wilkes' Charge 2 conviction, patently,
conflicts with Ruffalo and decisions of The First
Circuit, in Berkan,34 The Third Circuit, in Johnson,35
and Ashton,36 and The Tenth Circuit, in Phelps?’
and Mattox.?®
Question Four: Entitlement to De Novo Hearing
The Southern District in banc, heard the State
Court charges, de novo, in the proceeding, there, a
decade ago, obedient to The Fifth Circuit's decision in
Wilkes 1.39
34 In Re Berkan, 648 F.2d 1368 (1st Cir. 1981).
35 Committee Professional! Ethics v. Johnson, 447
F.2d 169 (1971).
36 In Re Ashton, 768 F.2d 74 (1984).
37 in Re Phelps, 637 F.2d 171 (1981).
38 Matter of Mattox, 758 F.2d 1362 (1985).
39 Wilkes’ case has been reviewed three times by Federal!
Courts of Appeal - once by The Fifth Circuit, in 1974, and twice
by The Eleventh, in 1986 and 1988. Hereafter, according to
chronology, they will be cited as Wilkes |, Wilkes Ili, and
Wilkes Ill.
21
Furthermore, The Eleventh Circuit, in Wilkes ll,
cited Wilkes I as ruling precedent - and quoted the
passage from Judge Wisdom's Opinion directing “that
the district court...hold a hearing (in effect a de novo
hearing) to conduct...an inquiry" - 782 F.2d 2126 - to
: verify, vel non, the trustworthiness of the “grounds
relied on by the New York and Florida courts." 782
F.2d 2126
On remand of Wilkes Il, he, accordingly, moved
for such a hearing in The Middle District (App-74-75) -
in reaction to which an Order was entered denying the
relief prayed for and making plain The Panel would
hear no evidence, at all, favorable to Wilkes - or, in
The Order's words, no “evidence...with respect to the
causes of Wilkes’ suspension by The Supreme Court
of Florida or with respect to rehabilitative or
exculpatory matters."49 (App-74-75)
40 Whether Brady, 373 US 83, will be extended to
disciplinary proceedings is debatable. But Wilkes submits it is
beyond debate that the Order resonated an implacable, rather
than a judicial, attitude toward him which disabled The District
Court Panel to decide his fate, fairly, on the merits. In Re
Ashton, supra, p. 80-81; In Re Mattox, supra, p..1368; In
Re Berkan, supra.
22
The Court of Appeals affirmed, explaining that
Wilkes had misunderstood the Opinion in Wilkes Il -
that he should not have read it to mean what it,
literally, said, as to de novo review.
What cannot be gainsaid, is that The Court's
decision, in Wilkes Ill, conflicts with This Court's
decision in Ruffalo as well as the decisions of The
Fifth Circuit, in Wilkes 1, and The Tenth Circuit, in
Gordon‘' and Phelps, supra.
The Courts of Appeal are divided in their
interpretations of the scope of review Selling and
Ruffalo, in tandem, prescribe in derivative
proceedings to discipline Lawyers.
Exercise of This Court's supervisory power is
appropriate and needed.42
Question Five: Schware's Application To Federal
Courts
41 In Re Gordon, 640 F.2d 1143 p. 1146-47 (10th Cir.
1981).
42 Frazier v. Heebe, 482 US (1987).
23
Wilkes argued, below:
That the constitutional commandments of
Schware43 apply in Federal, as well as State Court,
Proceedings to admit and expel Lawyers; (App-5-
36,47)
That such commandments, thus, should be
deemed to asylum him against expulsion, in The
Middle District, except upon the basis of evidence in
the record which "rationally justifies a finding that (he
is) unfit to practice law." 353 US 246.
That the only evidence, before The Panel, bearing
on his fitness, or not, was that twenty-nine years ago a
New York Court convicted and disbarred him for
commission of three minor offenses the most
noteworthy of which was neither charged not tried -
that twenty-two years, ago, The Florida Supreme
Court, derivatively, convicted and Suspended him on
two of the charges - that ten years, ago, The Southern
District - after de novo review of the State Court
4 Schware v. State Bd. of Bar Examiners, supra.
24
charges and proofs - found him fit to practice, there -
that four years, ago, he was deemed qualified and
admitted to The Eleventh Circuit's Bar.
That, unarguably, such evidence precluded a
rational conclusion of unfitness.
The Court did not address, explicitly, but,
necessarily, decided Wilkes’ argument, adversely -
resulting in conflict with decisions of The Third Circuit,
in Ashton, supra, and The Tenth Circuit, in Mattox,
supra, holding Schware regnant in Federal Court
proceedings.
The question is ripe for settlement.
CONCLUSION
The Middle District rubberstamped Wilkes’ State
Court disbarment,44 without a finding of unfitness -
indeed, under an Order containing recitals which,
paradoxically, were tantamount to a finding that he is
fit.
44 In Re Phelps, supra, p. 176; In Re Gordon, supra, p.
1146-1147.
25
The Court of Appeals’ allowance of such action
conflicts with Selling and Theard and "so far
departed from the accepted and usual course of
judicial proceedings" as to plead for correction under
the Aegis of This Court's Supervisory power.
Wilkes’ Petition, also, presents other important
Federal law questions which, invariably, confront
Federal Courts called upon to inquire into the
enforceability, or not, of State Court punishments of
Lawyers - questions The Courts of Appeal have not
been able to agree upon, yielding a Balkanized state
of affairs This Court should settle.
Above all, Federal Courts in The Eleventh Circuit,
and everywhere, should be reminded that the power to
disbar, even in derivative proceedings, must not be
used in terrorem, but should be reserved for exercise,
where necessary, as a measured response to grave
misconduct subversive of character and fitness - that
disbarment for non-serious offenses, always, is
inappropriate and abusive - that Lawyers are not to
26
Federal Courts “like flies to wanton boys...who
kill...(them) for their sport.”
Wilkes prays for Certiorari.
pacthaly submitted,
When, HN. mMancu—
William H. Maness, Esquire
801 Investors Building
118 West Adams Street
Jacksonville, Fiorida 32202
(904) 353-5786
ATTORNEY FOR PETITIONER
TABLE OF CONTENTS
EXHIBIT I, Order Denying Petition
For Rehearing 1
EXHIBIT II, Eleventh Circuit Court of
re Opinion Of April
26, 1988
EXHIBIT I], U.S. District Court
Memorandum Opinion of
December 23, 1986 ‘
1
EXHIBIT IV, Memorandum Seeking To
Show Cause Why Wilkes
Should Not Be Suspended “.
EXHIBIT V, U.S. District Court Order
Of June 19, 1986 am
EXHIBIT VI, U.S. District Court
Memorandum Opinion Of
April 9, 1985 77
EXHIBIT VII, ‘U.S. District Court
Order Establishing A
Three Judge Pane 88
EXHIBIT VIII, Memorandum in Opposition
To BFI’s Motion To
Suspend And Disqualify 90
EXHIBIT IX, Motion To Suspend and
Disqualify Plaintiff's
Counsel 97
EXHIBIT X,
EXHIBIT XI,
EXHIBIT XIl,
EXHIBIT XII,
Proof of Service
Order Granting Petitioner
Donald Wilkes’ Petition
To Confirm Credentials
Middle District,Local
Rule 2.04(b)
Amendment V
Amendment XIV
100
110
112
113
114
1
EXHIBIT I
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
NO.87-3060
GREER’S REFUSE SERVICE, INC. Plaintiff,
and
DONALD E. WILKES, Appellant,
versus
BROWNING-FERRIS INDUSTRIES of Delaware,
BROWNING-FERRIS INDUSTRIES of Florida,
Defendants-appellees.
Appeal from the United States
District Court for the
Middle District of Florida
(Opinion __ 4/26/88 _, 11 Cir., 1988,
F.2d__). (June 6, 1988)
Before TJOFLAT and KRAVITCH, Circuit Judges and
TUTTLE, Senior Circuit Judge.
PER CURIAM:
( ) The Petition(s) for Rehearing of the appellant are
DENIED and no member of this panel nor other Judge
in regular active service on the Court having requested
that the Court be polled on rehearing in banc (Rule 35,
Federal Rules of Appellate Procedure; Eleventh Circuit
Rule 35-5), the Suggestions(s) of Rehearing in Banc are
DENIED.
3
EXHIBIT I
GREER’S REFUSE SERV. v.
BROWNING-FERRIS INDUSTRIES
GREER’S REFUSE SERVICE,
INC., Plaintiff,
and
Donald E. Wilkes, Appellant,
Vv.
BROWNING-FERRIS INDUSTRIES OF
DELAWARE, Browning-Ferris Industries
of Florida, Defendants-Appellees.
No. 87-3060.
United States Court of Appeals,
Eleventh Circuit
April 26, 1988.
Appeal from the United States District Court for the
Middle District of Florida.
Before TJOFLAT and KRAVITCH, Circuit Judges, and
TUTTLE, Senior Circuit Judge.
TJOFLAT, Circuit Judge:
In this case, the United States District Court for
the Middle District of Florida, acting pursuant to its
4
rules, suspended attorney Donald E. Wilkes from further
practice in the Middle District. We affirm.
I.
Wilkes was admitted to the Florida Bar in 1950. Upon
becoming a member of that bar, he was admitted to
practice in the United States District Court for the
Southern District of Florida. Subsequently when the
Middle District of Florida was created, he was admitted
to practice in that district as well.! In 1953, he
became a member of the New York Bar.
In 1960, Wilkes was disbarred in New York based on
four charges of professional misconduct. In re Wilkes,
11 A.D.2d 35, 201 N.Y.S.2d 524 (1960).2 In
1. The Middle District of Florida was carved from the Southern
District in 1962. Wilkes, as a member of the Southern District
bar, was grandfathered into the bar for the Middle District.
2. The court’s opinion listed three charges: “converting and
misappropriating [a] client’s funds, communicating directly with
a party represented by counsel in an attempt to negotiate a
settlement, and misadvising and assisting a client to obtain a
void Mexican divorce.” Wilkes, 11 A.D.2d at 35, 201 N.Y.S.2d at
524-25. The court also remarked that Wilkes had failed to
appear in the disbarment proceeding and had apparently
abandoned his law practice. We interpret this remark as
referring to a fourth charge of professional misconduct.
5
1963, on the basis of the New York disbarment, the
Florida Bar initiated its own disciplinary proceedings
against Wilkes. The referee assigned to the matter
recommended that Wilkes be permanently disbarred, or,
in the alternative, suspended until such time as the New
York disbarment was vacated. On review, the Supreme
Court of Florida held that the referee had erroneously
given undue weight to the New york disbarment and had
failed to consider whether the record of the New York
proceedings supported the charges on which the
disbarment was based. The supreme court therefore
remanded the case to the referee, ordering him to
conduct an independent examination of the record
underlying the New York disbarment. Florida Bar v.
Wilkes, 179 So.2d 193 (Fla. 1965).
On remand, the referee gave independent
consideration to the New York record and concluded
that two of the four charges upon which Wilkes’
disbarment had been based were not supported by the
Ser ere eee ve eee
6
record.> In light of this conclusion, the referee
rescinded his earlier recommendation that Wilkes be
permanently disbarred for a period of five years. The
Supreme Court of Florida agreed with the referee’s
assessment of the New York disbarment record, but
disagreed with the referee’s recommendation regarding
the appropriate sanction. Apparently believing that
disbarment for five years was unduly harsh, the supreme
court ordered that Wilkes be suspended from practice in
Florida "until such time as he shail demonstrate to the
Florida Bar and to this court that he has rehabilitated
himself and that he should be reinstated to practice law
in this state." Florida Bar v. Wilkes, 199 So.2d 472, 473
(Fla. 1967), cert.denied, 390 U.S. 983, 88 S.Ct. 1104, 19
L.Ed.2d 1280 (1968).
Wilkes has never sought reinstatement to the Florida
Bar, and therefore remains suspended from the practice
of Law in Florida to this day. He refuses as a matter
3. The referee found that the third and fourth charges mentioned
in the New York disbarment order, see supra note 2, were not
supported by the record.
-
of principle to seek reinstatement to that bar;
he believes that to do so would constitute a tacit
admission of guilt as to the charges upon which the
New York disbarment was based, and he is unwilling to
make such an admission.
In September 1983, Wilkes appeared as counsel of
record for a plaintiff in a case before the United States
District Court for the Middle District of Florida. The
defendants in the case moved the district court,
pursuant to Local Rule 2.04 (b),4 to disqualify Wilkes
from serving as plaintiff's counsel and to suspend Wilkes
from further practice in the Middle District. After
examining the two opinions of the Supreme Court of
Florida relating to Wilkes’ suspension in Florida, a
three-judge panel of the district court granted the
4. Rule 2.04(b) provides that "[w]henever it appears to the Court
that any member of its bar . . . has been disbarred or suspended
from practice by the Supreme Court of Florida, or by any other
Court of competent jurisdiction, . . . such disbarment [or]
suspension ... shall... operate an automatic suspension of
such attorney’s right to practice in this Court.” The rule
permits the attorney to file a petition with the district court
seeking relief from the automatic suspension.
8
motion. On appeal, this court reversed. We held
that the district court, before it could suspend Wilkes
pursuant to Local Rule 2.04(b), was required "to give
intrinsic consideration to the records underlying the
state proceedings against Wilkes in New York and
Florida." Greer’s Refuse Servs., Inc. v. Browning-Ferris
Indus., 782 F.2d 918, 923 (11th Cir. 1986).> In so
5. We noted in Greer’s that Wilkes is recognized as a member in
good standing of the federal bar for the Southern District of
Florida. In 1971, Wilkes filed a “Motion to Confirm
Credentials” in the United States District Court for the
Southern District of Florida. The court denied the motion,
basing its decision on the fact that Wilkes had been suspended
from the Florida bar. On appeal, the Fifth Circuit reversed and
remanded, ordering the district court to conduct an intrinsic
examination of the records underlying the Florida suspension.
In re Wilkes, 494 F.2d 472 (Sth Cir. 1974). On remand, the
district court granted Wilkes’ Motion to Confirm Credentials.
As we emphasized in Greer’s, Wilkes’ success in the Sothern
District has no bearing on the merits of the present case:
Every indication . . . is that the order of the Southern
District granting Wilkes’ petition to confirm credentials
applied only to that district. Indeed, it could not be
otherwise; for, just as every court is entitled to determine its
own barmembership in terms of admission, each may also
determine its barmembership in terms of suspension or
disbarment as well.
Greer’s, 782 F.2d at 923.
q
E.
oe
9 :
rae
holding, we relied on the principle enunciated in Selling
v. Radford, 243 U.S. 46, 37 S.Ct 377, 61 L.Ed 585 (1917),
and reaffirmed in Theard v. United States, 354 U.S. 278,
77 S.Ct. 1274, 1276, 1 L.Ed2d 1342 (1957), and In re
Ruffalo, 390 U.S. 544, 547, 88 S.Ct. 1222, 1224, 20
L.Ed.2d 117 (1968). In Selling, the Supreme Court held
that a federal court may rely on a state court
ENE DE Sef NES IIE NASON NE OO
disbarment to exclude an attorney from practice before
it
unless, from an intrinsic consideration of the
state record, one or all of the following
conditions should appear: 1. That the state
been for want of notice or opportunity to
e 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
Leen gm 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.
Selling, 243 U.S. at 51, 37 S.Ct. at 379.
On remand, the district court examined the underlying
: . a : 345 _ va
FRIESE DTT ern PE TP TTI NR te Sm . eee Emr 2 ; : " pea Re
‘ ss : ss oer Py 7 7
records and concluded that neither the New York
10
disbarment nor the Florida suspension was infirm under
the Selling standard. Accordingly, the court reinstated
its order suspending Wilkes from further practice in the
Middle District. The district court commented that
should Wilkes gain reinstatement to the Florida Bar, he
would be entitled to apply for reinstatement to the
federal bar for the Middle District.®
Il.
On appeal, Wilkes first argues that the review
undertaken by the district court on remand was
essentially a sham. He apparently contends that he is
entitled, under our mandate in Greer’s, to a trial de
novo in the first instance on the question of his fitness
6. Local Rule 2.01(b) provides that “[o]nly those persons who are
members in good standing of The Florida bar shall be eligible
for general admission to the bar of this Court.” ‘Local Rule 2.02
provides that, under specified conditions, a "non-resident
attorney who is a member in good standing of the bar of any
District Court of the United States, outside the State of Florida,
may appear specially and be heard in any case in which he is
counsel of record.” Wilkes has not represented that he is a
member in good standing of any United States district court bar
outside the state of Florida.
—s
11
to practice law. This argument reflects a basic
misunderstanding of our mandate in Greer’s.
[1] Several preliminary points are in order. First,
federal district courts have clear statutory authority to
promulgate rules governing the admission and conduct of
the attorneys who practice before them.
See Frazier v, Heebe, -- U.S. --, 107 S.Ct. 2607, 2611,
96 L.ED 2d 2607 (1987):? Second, the Middle District,
pursuant to that authority, has promulgated rules
providing that general admission to practice in that
court is conditioned upon admission to the Florida Bar;
these rules further provide that state disbarment may be
grounds for suspension from the Middle District bar.8
7. 28 U.S.C. Section 2071 (1982) provides that "all courts
established by Actof Congress shall from time to time prescribe
rules for the conduct of their business." 28 U.S.C. Section 1654
(1982) provides that "[i]n all courts of the United States the
parties may plead and conduct their own cases ... by counsel as,
by the rules of such courts, respectively, are permitted to
manage and conduct cuases therein.” Fed.R.Civ.P. 83 provides
that "[eJach district court by action of a majority of the judges
thereof may from time to time, after giving appropriate public
notice and an opportunity to comment, make and amend rules
governing its practice not inconsistent with [the Federal Rules
of Civil Procedure].”
8. See supra notes 4 and 6.
12
The Supreme court has implicitly upheld the validity of
rules such as those promulgated by the Middle District.
Greer’s, 782 F.2d at 921.2 As we emphasized in Greer’s,
a district court may suspend an attorney from its bar
pursuant to a rule such as Local Rule 2.04(b) provided
that an intrinsic consideration of the record underlying
the predicate state disbarment does not reveal the kind
of infirmities identified in Selling.
In this case, Wilkes has been admitted to practice in
the Middle District based on his status as a member in
good standing of the Florida Bar. The predicate of his
9. The Supreme Court does have the prerogative to "exercise its
inherent supervisory power to ensure that these local Rules are
consistent with the principles of right and justice.” Frazier v.
Heebe, -- U.S. --, 107S.Ct. 2607, 96 L.Ed.2d 557 (1987). In
Frazier, the Court exercised its supervisory power to invalidate
a local rule promulgated by the United States District Court for
the Eastern District of Louisiana. The rule provided that
members of the Louisiana bar would not be admitted to the
district court’s bar unless they lived in, or maintained an office
in, Louisiana. The Court emphasized, among other things, the
irrationality of the rule as a means of ensuring the competence
of the attorneys who practice before the district court. Id. at -
-, 107 S.Ct. at 2612-13. Nothing in the Frazier opinion suggests
that a local rule requiring state bar membership as a condition
of general admission to a district court bar is an arbitrary or
irrational means of ensuring attorney competence.
13
suspension from practice in the Middle District was
his suspension from the Florida Bar. That being the
case, our mandate in Greer’s directed the district court
to give intrinsic consideration to the record underlying
the Florida suspension and to determine whether that
record revealed any of the infirmities identified in
Selling. The obvious implication of our mandate was
that if no such infirmities were uncovered, then it
would be entirely permissible for the district court to
use the Florida suspension as a predicate for its own
suspension of Wilkes from practice in the Middle
District. Only if the Florida suspension were found to
be infirm under the Selling standard would the district
court be required to make an independent determination
whether Wilkes was fit to practice law.
[2] Thus, contrary to Wilkes’ apparent suggestions,
our mandate in Greer’s did not direct the district court
to conduct a de novo trial in the first instance of
Wilkes’ fitness to practice law. The district court, in
compliance with our mandate, examined the record
underlying the Florida suspension. The court found
14
none of the infirmities identified in Selling. Assuming
that the court did not err in conducting it intrinsic
consideration of the records, then, it was entirely
proper for the court to reinstate its order suspending.
Wilkes on the basis of Local Rule 2.04(b). Furthermore,
it was entirely proper for the court to comment,
consistent with its validly promulgated local rules, that
Wilkes could be reinstated to the Middle District bar
should he gain reinstatement to the Florida Bar.
Having disposed of Wilkes’ argument that he was
entitle to a trial de novo in the first instance on the
question of his fitness to practice law, we turn to the
merits of the district court’s determination that the
Florida suspension was not infirm on any of the bases
identified in Selling. In making that determination, the
district court gave intrinsic consideration not only to
the record underlying the New York disbarment. Such
15
review was necessary because, as explained on the New
York disbarment. 10
Wilkes argues that the New York disbarment
proceeding was constitutionally defective, and that the
district court therefore erred in finding an absence of
the kind of infirmity identified in Selling. One of the
charges levied against Wilkes in the New York
proceeding was that he had misappropriated and
converted funds transmitted to him in escrow by an
opposing lawyer. The record of the New York
proceedings shows that Wilkes had notice of this charge
and was given an opportunity to respond to it. The
record also contains evidence that would support the
conclusion that Wilkes had in fact engaged in the
misconduct charged. The order disbarring Wilkes,
however, referred to his having converted and
misappropriated a "client’s" funds, rather than funds
10. Because the Florida suspension was based on only the first
two charges of professional misconduct involved in the New
York disbarment, see supra note 3 and accompanying text, the
district court properly limited its examination of the New York
record to that portion pertaining to those two charges.
16
transmitted to him in escrow by opposing counsel.
Wilkes, 11 A.D.2d at 35, 201 N.Y.S.2d at 525. Owing to
this discrepancy, Wilkes argues that he was denied due
process because his disbarment was based on an
unnoticed charge.
[3] We find this argument to be without merit. The
misappropriation charge stemmed from Wilkes’ handling
of a $600 check transmitted to him by an opposing
counsel. A letter accompanying the check stated that
"the proceeds of this check should be held by you in
escrow pending receipt by me of general release from
your client to mine, and dismissal of the present action
with prejudice to its renewal." No release was ever
delivered by Wilkes, but he kept the money. Since the
money was originally transmitted to Wilkes with the
intention that it ultimately be paid to Wilkes’ client, it
is understandable that the New York court might make
reference to the "client’s funds” rather than “funds
transmitted to Wilkes in escrow by opposing counsel.”
We recognize that the New York court’s reference to a
“client’s funds" in describing the subject of the
misappropriation was perhaps not the best choice of
17
words. Wilkes cannot, however, seriously claim that he
was tried on an unnoticed charge merely because the
description of the charge in the court's formal opinion
was not a modei of clarity. The fact remains that
Wilkes was charged with misappropriating the funds and
had adequate notice of that charge. We therefore
reject Wilkes’ contention that his disbarment was based
on an unnoticed change. !1
Ill.
In summary, we conclude that the district court's
Suspension of Wilkes pursuant to Local Rule 2.04(b) was
proper in all respects. The district court correctly
interpreted our mandate in Greer’s, and we perceive no
error in the court’s finding that the records of the
1i. Wilkes claims that the New York disbarment and the Florida
suspension were defective in several other respects. We
conclude that these additional claims do not merit discussion.
“—w emery 7
18
underlying disciplinary proceedings are devoid of the
kind of infirmity identified in Selling. !7
AFFIRMED
12. In his brief, Wilkes repeatedly points out that his professional
misconduct occurred some thirty years ago. Wilkes identifies
this passage of time as a “grave reason,” within the meaning of
Selling. for not using the suspension from the Florida Bar as a
predicate for suspension from practice in the Middle District.
In support of this argument, Wilkes relies on Theard v. United
States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957). In
Theard, as in this case, an attorney was suspended from a
federal district court bar on the basis of a stae disbarment.
The state disbarment order, entered in 1954, was based on an
incident of misconduct that had occurred in 1935, at a time
when the attorney was suffering from an extreme mental illness.
Id. at 280, 77 S.Ct. at 1276. In light of these facts, the
Supreme COurt held that the district court had erred in
automatically accepting the sate disbarment as a basis for
suspending the attorney, and remanded the case for
reconsideration. Id. at 283, 77 S.Ct. at 1277.
The present case does not involve the kind of special
circumstances that gave rise to the Court's apparent concerns
Theard. In Theard, the predicaie state disbarment itself
occurred nearly twenty years after the misconduct in question.
Here, the disciplinary proceedings that resulted in the New York
disbarment were commenced within roughly one year of the
misconduct in question, and the disciplinary proceedings that
resulted in the Florida suspension were commenced within three
years of the New York disbarment. Because the predicate state
proceedings occurred in temporal proximity to the underlying
misconduct, there is no danger here, as there was in Theard,
that the disciplinary actions were based on stale evidence.
Moreover, there is no suggestion in this case that Wilkes, like
the attorney in Theard, was suffering from a debilitating mental
illness at the time of the misconduct in question.
19
EXHIBIT Ill
UNITED STATE DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GREER’S REFUSE SERVICE, INC.,
Plaintiff,
-VS- CASE NO. 83-825 CIV-J-14
BROWNING-FERRIS INDUSTRIES,
INC., et al.,
Defendants.
/
MEMORANDUM OPINION
Donald E. Wilkes, counsel of the Plaintiff, is nor now,
nor was he at the commencement of this litigation, a
member in good standing of the bar of any state. On
motion of the Defendants, we! entered an order on
April 9, 1985, disqualifying Wilkes from affording
representation in this case and suspending him from
further practice in the Middle District of Florida.
1. A three judge panel was convened pursuant to Tule 2.04, M.D.
Fila. Rules.
20
On appeal, the Court of Appeals reversed and
remanded with directions that this Court give "intrinsic
consideration" to the underlying records in the state
courts disciplinary proceedings which resulted in Wilkes’
disbarment and suspension from practice, respectively, in
New York and Florida -- the two states in which he
was previously admitted to practice. Greer’s Refuse
Vv wnhing- i ies Ww
(Appeal of Donald E. Wilkes), 782 F.2d 918 (11th Cir.
1986).
I.
The record filed by the Florida Bar discloses that
Donald E. Wilkes was born on March 10, 1922 in Ocala,
and is-now 64 years of age. He attended Auburn
University from 1940 until 1942, and spent three years
in the Army during World War II. He returned to
Auburn after the war and then transferred to Stetson
University where he obtained his B.A. degree. He then
2. See, Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585
(1917).
21
enrolled in Stetson Law School but transferred to the
University of Florida College of Law where he obtained
his LL.B. degree and was admitted to the Florida Bar in
1949 pursuant to the diploma privilege. He apparently
served an abbreviated clerkship with United States
Circuit Judge Curtis L. Waller of Tallahassee until Judge
Waller’s death in July of 1950, after which he became
associated with the firm of Cravath, Swain & Moore in
New York form 1950 through 1955. In 1956 he became
associated with then Senator Claude Pepper in Miami;
and, in 1957, he returned to New York city and formed
the firm known as Wilkes, Kennedy & Fields. His
trouble with the Bar began in 1959 (See report of
Referee of the Florida Bar dated March 3, 1964).
On March 4, 1959 Mr. Wilkes was notified by letter
from the Committee on Grievances of the Association of
the Bar of the City of New York that proceedings would
be undertaken to determine two charge of professional
misconduct made against him. Those charges were: (1)
that he had improperly addressed a direct communication
to an opposing party who was then be represented by
independent counsel; and (2) that he had
22
misappropriated $600 held by him in escrow.
Extensive hearings were conducted during the period
March - June, 1959. Mr. Wilkes appeared and
represented himself during the hearings. (The
transcripts are a part of the record filed by the Florida
Bar.) The Committee’s findings were adverse and
represented himself during the hearings. (The
transcripts are a part of the record filed by the Florida
Bar.) The Committee’s finding were adverse to Wilkes
and in November, 1959 a disbarment proceeding
commenced before a referee appointed by the Supreme
Court of New York, Appellate Division, First
Department. (The transcript of those proceedings is
also a part of the record.) Although he had received
notice of the disbarment proceedings, Wilkes did not
attend. It appears that he was in the midst of a
marital quarrel and had left his home in New York so
that his whereabouts were unknown. Even so, he was
represented at the hearing by a lawyer employed by his
wife and his law partner.
On June 21, 1960, the Supreme Court of New York,
Appellate Division, First Department entered its Order
23
disbarring Wilkes from the practice of law. In Re
Donald W, Wilkes, 201 N.Y.S.2d 524 (1960). The Court
recited that the charges against Wilkes were
"converting and misappropriating [a] client’s funds,>
communicating directly with a party represented by
counsel in an attempt to negotiate a settlement, and
misadvising and assisting a client to obtain a void
Mexican divorce." Id at 524-525. The Court also
remarked that Wilkes had failed to appear and had
apparently abandoned his law practice.
II.
In 1963, disciplinary proceedings were initiated against
Wilkes by The Florida Bar predicated upon the New
York disbarment. Hearings were conducted before a
= The Court simply misspoke in referring to a "client’s funds.”
The charge, and the evidence adduced to support it, was to the
effect that Wilkes misappropriated funds transmitted to him in
escrow by an opposing lawyer.
24
referee who file a written report commending that
Wilkes be disbarred or, alternatively, that he be
suspended until such time as the New York order of
disbarment should be vacated and set aside. (A copy of
the Referee’s report, dated March 3, 1964, is included in
the record.)
On review by the Supreme Court of Florida, the court
held that the Referee had placed undue, conclusive
weight upon the New York finding of guilt and
assessment of discipline, and the proceeding was
remanded for an independent determination of those
issues. The Florida Bar v. Wilkes, 179 So.2d 193 (Fla.
1965).
On remand, the Bar Referee gave independent
consideration to the record of the New York disciplinary
proceedings, as well as the proceedings he had
previously conducted, and then made a new report and
recommendation. He found that the first two charges
alleged against Wilkes in New York (misappropriating
escrow funds and communicating directly with an
opposing party) were established by the record; but that
the third charge mentioned in the New York Order of
25
Disbarment (misadvising a client as to the validity of a
Mexican divorce) was not supported by record.
Similarly, the Referee found that the fourth charge
(abandoning his law practice) could not be sustained
because the respondent had attended all of the
proceedings before the Grievance Committee in New
York, a fact that was either overlooked by, or was
unknown to, the New York Court. Accordingly, the
Referee on this occasion recommended that, rather than
permanent disbarment, Wilkes should be disbarred for a
limited period of five years beginning from the date in
1963 when the Florida Bar proceedings commenced.
(Referee’s report date May 2, 1966).
On review, the Supreme Court of Florida affirmed the
Referee’s finding the that the New York record
supported a finding of guilt with regard to the
misappropriation and direct communication charges, but
the Court disagreed that disbarment for five years was
an appropriate discipline. Rather, the Court ordered
that Wilkes should merely be suspended from all
practice of law "... until such time as he shall
demonstrate to the Florida Bar and to this Court that
26
he has rehabilitated himself and that he should be
reinstated to practice law in this State." The Florida
Bar v, Wilkes, 199 So.2d 472, 473 (Fla. 1967).
To this day, Wilkes has never applie ’ for
reinstatement as a member in good standing of the
Florida bar. He justifies this failure on the apparent
basis that to apply for reinstatement would constitute a
tacit admission of original guilt, and this he refuses to
do.
Il.
On August 6, 1971 Wilkes filed in the Southern
District of Florida a "Motion to Confirm Credentials to
Practice Before the Courts of the Southern District."
The motion was assigned to Judge Mehrtens and treated
by him as a motion for reinstatement. The Court then
abstained from ruling on the motion until such time as
Wilkes filed a petition for reinstatement in the Florida
Supreme Court. On appeal, the Fifth Circuit reversed
and remanded for further proceedings. Specifically, the
Court of Appeals ordered the District Court to
determine for itself whether Wilkes should be permitted
27
to practice before it, such determination to be made on
the bases of an "intrinsic consideration" of the
proceedings in New York and Florida as dictated by the
U.S. Supreme Court decision in Selling v. Radford, 243
U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585 (1917). See In Re
Wilkes, 494 F.2d 472 (Sth Cir. 1974).
When the matter reached the Southern District on
remand from the Fifth Circuit, Wilkes’ petition was
referred to the Court’s Grievance Committee for a
recommendation. The Grievance Committee ultimately
reported as follows:
Under all the circumstanced surrounding the
charges and all the evidence concerning them,
the permanent disbarment of Wilkes is a more
severe punishment than Wilkes’ misconduct
justified, and that as of this time he has been
disciplined enough.
Recognizing that Mr. Wilkes, in the last
seventeen years, has suffered sever sanction, and
without in any way approving Mr. Wilkes’
conduct, and indeed, conceding that such conduct
was censorable, we believe there now exists no
resent basis for holding Mr. Wilkes disqualified
om continuing to practice law before the
Federal Courts in this State (pp. 101-02).
Acting on that recommendation the Judges of the
Southern District entered an Order on August 2, 1978
granting Wilkes’ "Petition to Confirm Credentials."
28
Parenthetically, we would note to our own view that
the Grievance Committee in the Southern District
exceeded its proper charge and went beyond "intrinsic
consideration" of the New York and Florida disciplinary
proceedings. It did not confine itself to the question
whether those records justified the discipline
administered; and, indeed, the Committee overstated the
severity of the discipline imposed by the Supreme Court
of Florida. Wilkes was not "permanently disbarred” in
Florida; he was merely given an indefinite suspension.4
If he has been punished enough -- and that may be a
correct view of the matter -- he need only apply to the
Supreme Court of Florida for reinstatement.
4. In his belief before this Court Wilkes asserts that his
indefinite suspension was unduly harsh and was more severe
than the discipline administered by the Supreme Court of Florida
in other similar cases. A reading of the Court’s opinion,
however, makes it abundantly clear that in rejecting the
referee’s recommendation of a definite period of disbarment in
favor of an indefinite period of suspension, the Court intended
to mitigate not enhance the discipline, and it chose suspension
in order to allow Wilkes the immediate opportunity to petition
for reinstatement. See The Florida bar v, Wilkes, 199 So.2d 472,
473 (Fla. 1967).
29
IV.
Our present chore in the Middle District of Florida,
pursuant to the mandate in Greer’s Refuse Service, Inc,
v. Browning-Ferris Industries of Delaware (Appeal of
Donald E. Wilkes), 782 F.2d 918 (11th Cir. 1986), is to
give “intrinsic consideration" to the proceedings in New
York and in Florida to determine: (1) Whether Wilkes
- in those State proceedings was afforded due process in
terms of notice and an opportunity to be heard; (2)
Whether there was "such an infirmity of proof" that the
conclusion reached by the State cannot be accepted;
and/or (3) Whether there is some other "grave reason"
why the State Court result should not be accepted. See
also Selling v. Bradford, supra.
Clearly, from our review of the record, none of those
three factors exist in this case.
The first charge against Wilkes (misappropriation of
escrow funds) stems from a letter written to him by an
opposing lawyer on August 20, 1958. By that letter the
opposing lawyer transmitted his client’s check in the
amount of $600 which was tendered in settlement of a
pending case. The letter specifically declared that "the
30
proceeds of this check should be held by you in escrow
pending receipt by me of a general release from your
client to mine, and distnissal of the present action with
prejudice to its renewal." The release was not
delivered, but Wilkes kept the $600 anyway. he seeks
to explain and excuse this conduct on the ground that
the letter varied the terms of an earlier telephone
conversation he had with opposing counsel, and/or on
the basis of a convoluted argument that subsequent
develops in the case justified his retention of those
funds as his fee.
The second charge against Wilkes (direct
communication with an opposing client) stems from a
letter he wrote on October 1, 1958 to the defendant,
who was then represented by counsel, in a personal
injury action in which Wilkes represented the Plaintiff.
In all fairness, These offenses, considering all of the
circumstances surrounding their commission, are just not
very serious. Over twenty years of disbarment and/or
suspension should be enough, assuming that the offender
has otherwise lived an exemplary life. But the fact
remains that he is not a member of any organized Bar;
31
that he was appropriately disbarred and/or suspended by
the Bars of which he was a former member; and that
"intrinsic consideration" of those proceedings confirms
that appropriateness of the disciplinary actions taken at
that time.
It follows that Wilkes should be, and is hereby,
suspended from the practice of law before this Court
until he has gained reinstatement by the Florida Bar (or
until such time as reinstatement has been sought and
unjustly denited).
IT IS SO ORDERED this _23_ day of December,
1986.
5. In Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274 (1957)
the Court disapproved of reliance by a federal district court
upon a state disbarment proceedings which occurred in 1954
based upon wrongful behavior that had occurred almost twenty
years earlier in 1935 at a time when the subject lawyer was
mentally irresponsible. This case is clearly distinguishable.
There is no staleness or other infirmity in the state court
proceedings resulting in Wilkes suspension, and there is no
“grave reason” why the state court judgment should not be
honored.
32
IT IS SO ORDERED this _ 23__ day of December,
1986.
WM. TERRELL HODGES
CHIEF UNITED STATES DISTRICT
JUDGE
HOWELL W. MELTON
UNITED STATES DISTRICT JUDGE
SUSAN H. BLACK
UNITED STATES DISTRICT JUDGE
33
EXHIBIT IV
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GREER’S REFUSE SERVICE, INC.,
Plaintiff,
VS. CASE NO. 83-825-Civ-J-14
BROWNING-FERRIS INDUSTRIES,
INC., et al.,
Defendants.
MEMORANDUM SEEKING TO
SHOW CAUSE WHY WILKES
H D NOT B PENDED
The June 19th Order provided that Wilkes should
“show cause, by written pleading or memorandum, why
this Court should not, by reason of the three factors
.. -- enumerated in Radford! -- "suspend him from
1. Selling v. Radford, 243 US 46, 37 SCT 377, 61 L.Ed. 585
(1917).
;
Pa
:
34
further practice of law before this Court due to his
previous suspension from practice by the Supreme Court
of Florida..."
Radford? instructs Federal Courts not to enforce
State Court disciplinary actions where "1...the state
procedure, from want of notice or opportunity to be
heard, was wanting in due process 2...there was such an
infirmity of proof as to fats found to have established
the want of fair private and professional character as
to give rise to a clear conviction..." that the
"conclusion" should not be accepted "as final" or
3..."some other grave reason existed" which "would
conflict with the duty...not to disbar except upon the
conviction that under the principles of right and
justice..."such action is "constrained."
This Memorandum is tendered in compliance with the
June 19th Order.
2. Ibid.
35
Background of
State Proceeding
The New York charges had to do with events that
took place, in 1958, and the proceeding itself, was
commenced, officially, March 4, 1959.
It was a near-antediluvian period in the evolution of
the constitutional rights which have come to shelter the
practice of law -- rights which lawyers, now, take for
granted.
Prior to Schware,? admission to the practice of law
was deemed a privilege granted by grace of The
ie he a ee ee re
Sovereign and subject to summary revocation on terms
and conditions agreeable to The Sovereign’s will, only.
Schware’s* announcement, May 6, 1957, was the
beginning of a new direction, holding: :
my ees a te ee Pe
a, hware v r iners of New ico, 353 US 232,
77 SCT 752, 1 L.Ed2d 796 (1957).
4. Ibid.
eel
36
That a State cannot exclude a person from the
practice of law...in a manner or for reasons that
contravene the Due Process or Equa! Protection Clause";
That exclusion must be founded on evidence in the
record sufficient to warrant a finding of unfitness;
That such a finding is not tolerable unless it takes
"into account" the "nature of an offense";
That there must be a rational basis for imputation of
bad character;
That allowance must be made for the age of the acts
of misconduct, charged -- and the circumstances of
their commission.
Schware, then, was a watershed in lawyers’ rights but
too recent in vintage and novel in doctrine to influence
the conduct of New York’s Bar authorities in Wilkes’
prosecution.
It was not until 1963, in Willner,» that The Supreme
Court rebuked them for their indifference to procedural
Willner v. Comm. on Character and Fitness, Appellate Division
of The Supreme Court of New York, 373 US96, 83 SCT 1175, 10
L.Ed2d 224 (1963).
37
procedural due process in investigating and judging
professional fitness.©
Wilkes thinks that a fair reader of The New York
record will conclude that what happened to him could
not happen to a lawyer in the consitutional climate of
the 1980's.
New York Record
The New York record consist of the transcript of the
several Grievance Committee Hearings -- running to 426
pages -- and the transcript of an ensuing trial before a
Referee -- running to 100 pages.
It is, Wilkes thinks, important to take note that The
Referee declined to consider The Grievance Committee
transcript notwithstanding that Wilkes’ cause was before
him pursuant to The Committee’s reference. (GCT-87)
DE he eth a te en neat Re
6. Willner’s foe was The Admissions Committee created by The
Appellate Division of The Supreme Court of New York, First i
Judicial Department. The same Court, hereafter, sometimes,
called The First Department, created The Grievance Committee
that heard Wilkes’ case.
ibis callin
38
It is notable, too, th: The First Department’s
disbarment order was entered without benefit of The
Committee transcript.
New York Record
Desionatt
The Committee transcript will be referred to by the
symbols GCT followed by the page number.
The Referee’s transcript will be designated RT
followed by the page number.
New York Charges
Two charges were preferred in The Grievance
Committee’s Notice, dated March 4, 1959.
Charge No. 1 was that Wilkes had communicated with
an adversary party, represented by counsel, in violation
of Canon 9.
Charge No. 2 was that an adversary party had
deposited $600.00, in escrow -- that he had not
performed the duties imposed under the escrow
agreement -- and that he had "failed to return any part
of the $600.00 ...and...(had) converted it to...(his) own
"
use.
39
Charge No. 3, served when he attended a hearing on
the original charges, was the had misadvised a client as
to the validity of a Mexican divorce.
Memorandum
The Florida Supreme Court, ultimately, acquitted
Wilkes on Charge No. 3 and it will be passed over,
here,
His conviction on Charges 1 and 2 will be taken up,
in order, for purposes of Radford -- analysis, viz to
inquire into whether they are unworthy of This Court’s
acceptance because of (1) want of notice incompatible
with procedural due process (2) infirmity of proof of (3)
“other grave reason..."
CHARGE 1
Hearing
Facts
The Grievance Committee transcripts shows:
40
That Wilkes succeeded another Lawyer in representing
a pedestrian knocked-down by a motorist in an
intersection; (GCT-17-19)
That the Attorney, who represented the motorist’s
insurer, Liberty Mutual, refused to disclose the Insured’s
address and, arbitrarily, revoked a settlement offer made
to Wilkes’ predecessor; (GCT-18-20)
That Wilkes’ client claimed -- and medical opinion
confirmed -- that a mid-term miscarriage was caused by
the accident; (GCT-52-57)
That, after considerable exertion Wilkes tracked down
the motorist and brought suit; (GCT-20)
That, subsequently, he wrote asking that she demand
her insurer pay the policy limit -- $10,000.00 -- lest she
be exposed to liability for judgment in an amount in
excess of the limit -- considering the nature of her
victim’s special injuries, i.e. the miscarriage; (GCT-8-9,
victim’s special injuries, i.e. the miscarriage; (GCT-8-9,
52-60
That, simultaneously, Wilkes mailed a copy of the
letter to the motorist’s attorney employed by Liberty
Mutual to represent her; (GCT-25)
41
That the controversy proceeded to trial and a jury
verdict rendered for the motorist; (GCT-5)
That the Insurer’s Attorneys complained against
Wilkes to the Grievance Committee asserting a Canon 9
violation;
That Wilkes’ defense, presented during the Committee
hearings, was that, on the facts, his letter did not
violate the Canon (GCT-7) that he sought to lay the
predicate for an excess liability claim against the
insurer in the event it declined to settle for the policy
limit after demand by the Insured (GCT-9-24) that a
communication, for such purpose, was permissible (GCT-
9-24) that, as to any excess exposure, in insured is not
represented by an insurer’s Lawyers (GCT-9-24) and
that, accordingly, a Plaintiff's Lawyer may communicate
with the insured to recommend that the insured seek
the advise of independent counsel in regard to such
exposure. (GCT-9-24)
Tn r Ww
Referee
The transcript of the trial before the New York
Referee shows:
42
That only Charge 1 witness was Keane, Liberty
Mutual’s lawyer;
That he testified the Wilkes had written the disputed
letter; (RT-30-31)
That he admitted Wilkes had sent him a copy as the
insured’s lawyer; (RT-30)
That he conceded, too, that the letter had not
_ persuaded the insured to pursue a course of action
contrary to the insurer’s interests -- that “within a
week she called up and said she would follow whatever
we did";(RT-29-30)
CHARGE 1 LAW
Wilkes contends that "infirmity of proof" and "other
grave reason" -- within the meaning of Radford --
militate against enforcement of his Charge 1 conviction.
No evidence, at all, was introduced showing the
letter, in dispute, violated Canon 9 except Keane’s
testimony that he had been working for insurers
twenty-five years and had never "seen a letter like
that." (GCT-70)
43
Nor did the prosecutor cite cases or authorities
tending to establish a violation.
Wilkes, contradistinctively, produced, read into the
record and introduced into evidence articles from legal
publications the tenor of which was that his letter was
blameless; (GCT-9-11; 13-17; 22-24)
They demonstrated that some experts, in the field,
were convinced that "The restriction upon the right of
the insured to settle the claim does not apply to a
settlement of...potential excess liability" -- that "To this
extent he has a right to protect himself; (GCT-23)
The articles, moreover, documented that The American
Bar Association had declined to issue a "ruling on the
ethical propriety of communicating directly with the
insured” in such a situation.(GCT-24)
At the time of his 1959 Trial, indeed, there,
apparently, was no New York case in point, even
tangentially, except Re O'Neil’ in which an insurer’s
7. Re O'Neil, 239 NYS 297 (ist Dept., 1930).
44
lawyer was exonerated on a Canon 9 charge that he had
approached and negotiated settlement with claimants
represented by counsel.
The First Department found the settlements had taken
place and were improper but concluded they were the
work of the lawyer’s underlings -- of which he had no
specific knowledge.
But Re O'Neil did not speak to the propriety of a
letter, like Wilkes; advising an insured to enlist
independent counsel for protection against contingent,
excess liability.
Even Keane, Liberty Mutual’ lawyer, testified, before
The Grievance Committee, that an insurer has a duty to
inform as to such a contingency -- and that,
accordingly, "on June 19, 1958 a letter was sent to the
assured notifying her of the excess addendum...and that
the coverage was considerable less,...(and) inviting her
to get her own counsel and associate with me in the
trial of this case." (GCT-67-69)
Wilkes’ spontaneous response was: "May I comment
that is a splendid thing to do and that is what all
insurers should do." (GCT-69)
45
But it must be remembered that, pre-litigation,
Keane’s associate, Holden, had refused to give the
insured’s address to Wilkes, or, in the alternative, "to
communicate to her the fact that...(Wilkes) wanted to
discuss settlement.” (GCT-18-19)
It was not irrational, then, for Wilkes to assume that
the insured would not learn of her rights unless he
informed her.
In brief, at the time he wrote the October 1, 1959
letter, made the subject of Charge 1, there was no New
York case which could be construed as a precedent for
Wilkes’ Charge 1 Canon 9 conviction.8
Oppositely, all the persuasive authorities were to the
effect that such a letter, written to prepare the way
8. In 1976, in LaCava, 385 NYS2d 642, New York’s Fourth
Department rejected an argument somewhat like, but not the
same as, Wilkes made in 1959. The LaCava facts, moreover,
were aggravated. The lawyer, or his agent, secured an affidavit
from an adversary party represented by counsel. The lawyer
contended he had “an implied right to take . . . (the) statement
by virtue of his representation of both parties in varying
matters” -- and that, in any event, “opposing counsel only
represented affiant’s insurance carrier.”
mage’ PPR ee i ty
46
for an excess liability claim against an intransigent
insurer, was not unethical.?
Wilkes’ Charge 1 conviction was arbitrary and a
fortiori infirm in proof.
“Other Grave Reason"
Why Charge 1 Should
Not Be Recognized
Radford’s!9 "other grave reason: component enjoins
Federal Courts to refuse to adhere to State Court
disbarments, or suspensions, where adherence would
“conflict with the duty" not to disbar unless
"constrained" to do so under "the principles of right and
justice."
9. Canon 9 is, now, DR 7-104(A)(1). A significant accompanying
revision allows for communication with an adversary party,
represented by counsel, where "authorized by law ...." The
purpose of the prohibition, past and present, is not clear. The
ABA’s only explanation is that the legal system “functions best
when persons in need of legal advise or assistance are
represented by their own counsel." ABA Annotated Code of
Professional Responsibility, 1979, page 332. If such be the
purpose Wilke’s letter was not an infringement. he sought to
enable the insured to have the benefit of her “own counsel” as
to her excess exposure. She was not, to that extent,
represented, at all.
10. Selling v. Radford, supra, fn 1.
47
Does an ancient, Canon 9 violation, assuming its
validity, warrant striking Wilkes from The Roll of
Attorneys? |
Would the punishment be so disproportionate as to
pose “conflict...(of) duty” as contemplated by Radford?
Wilkes thinks it would -- and, further, that conflict
with Schware’s!! strictures would arise -- strictures
which denounce exclusion from the practice of law
unless the "nature of the offense" is taken into account
-- and is shown to be so malignant as to support a
rational inference of bad character.
Usually a Canon 9 violation -- now DR 7-104(.4)(1) --
is punished by censure, reprimand or short term
suspension. 12
There are four Florida cases that furnish guidance in
appraising "the nature of the offense" and the
appropriate measure of punishment.
11. Schware v. Bd. Bar Examiners, supra, fn 3.
12. Selling v. Radford, supra, fn. 1.
48
In LeFave, }3 where the charge was a violation of DR
7-104(A)(1), without more, a public reprimand was
ordered.
In Shapiro, !4 where a DR 7-104(A)(1) count was
conjoined with five others -- having to do with
commingling of clients’ funds, insanity etc. -- and a
written plea of guilty, as charged, was entered, except
13. Florida Bar v. LeFave, 409 So.2d 1025 (1982).
14. Florida Bar v. Shapiro, 413 So.2d 1184 (1982).
49
as to the insanity count, the sanction imposed was
suspension for three months and a day.15
15.
New York’s First Department enforced Florida’s Shapiro
sanction because he had not contested guilt (455 NYS2d 604).
But, ironically, under the Aegis of The Florida Supreme Court’s
original decision, in Wilkes’ cause, (179 So.2d 193) The new York
Court of Appeals, per curiam, declined enforcement of a Florida
disbarment following upon a sodomy conviction. In Re Kimball,
301 NE 2d 436 (1973) The Court adopted the opinion of the
Dissenters, below, (339 NYS 2d 302) who posited that full-faith
and credit nor comity enjoined New york to "blindly follow’ the
Florida adjudication -- that “differing conditions” of place, time
and social and moral climate" in new York, in 1973, dictated an
appraisal of fitness contrary to Florida’s made in 1957. The
Wilkes pronouncement has had a salutary influence in
repropagating Radford’s principles in derivative disciplinary
proceedings among State Courts. The Missouri Supreme Court,
en hanc, in Weiner, 530 SW2d 222 (1975), expressly, adopted
Wilkes as the benchmark in such a proceeding. Kentucky’s
Highest Court did the same in Signer, 553 SW 2d 534 (1966),
saying that automatic acceptance of another state’s disciplinary
adjudication would oust a domestic state’s jurisdiction to decide
for itself, the fitness, vel non, of a lawyer. Even New York’s
First Department has been converted. When Wilkes was on
trial, in Florida, The Department's agents inveighed that his
disbarment, there, should be enforced, automatically, in Florida -
- that otherwise, the public weal would be subverted. The
Department, in an about face, has codified Radford (455 NYS2d
p. 605). In a nub, Wilkes has not been a refuge for soundrels.
It has has a leavening and healing power. Rubber stamp
judgments, now, are disfavored. State Courts, like Federal
Courts, are enabled to do rational justice in derivative
proceedings.
50
In Kirtz,1® two proceedings, prosecuted
simultaneously, laid a DR 7-104(A)(1) charge and five
more -- among them exaction of an excessive fee,
neglecting a client’s affairs, fraud and deceit, etc.
Guilt was confessed.
Suspension, for four months, was ordered in both
proceedings, to run concurrently.
In Suprina, !7 the Complaint was in six counts - i.e.
violation of DR 7-104(A)(1), mishandling of trust funds,
improper record keeping, etc.
The Referee convicted on all counts.
Suprina was ordered to "appear before the Board of
Governors of The Florida Bar to receive a public
reprimand."
16. Florida Bar v. Kirtz, 445 So.2d 576 (1984).
17. Florida Bar v. Suprina. 468 So.2d 988 (1985).
51
The quartet of cases, canvassed above, contains the
whole corpus of Florida law on Canon 9, or DR 7-
104(A)(1), violations.
Plainly, the judicial attitude they express is tolerant,
if not quite permissive.
The establish that Wilkes’ indefinite suspension, by
The Florida Supreme Court, for such violation, was
unprecedented - and so discriminatory as to excite
suspicion about intrusion of unspoken, extra-judicial
considerations.
52
In Theard,18 Mr. Justice Frankfurter, was appalled
that a District Court had enforced, automatically, a
State Court disbarment for a time-encrusted wrong.
In his words, "We do not think that ’the principles of
right and justice’ require a federal court to enforce
disbarment of a man eighteen years after he had uttered
a forgery when concededly he was ’suffering under an
exceedingly abnormal condition some degree of insanity’.
Neither considerations relating to ’the law of the
case;...nor the temptation to get bogged down in the
quagmire of controversy about the McNaghten rule,
require automatic acceptance by a federal court of the
state disbarment in the circumstances of this case. The
18. Theard v, US., 354 US 278, 77SCT 1274, 1 L.Ed2d 134 (1957).
53
District Court apparently felt itself so bound. This we
deem error."
Wilkes’ asserted Canon 9 entanglement is twenty-eight
years old.
If proven, originally, which Wilkes denies, it would
have constituted a minor offense, at best - warranting
reprimand, at worst.
Staleness has extinguished it, entirely.
This Court should treat it as undeserving of notice.
Summary Review of
Wilkes’ Charge 1 ition
No action should be taken against Wilkes on Charge 1.
Intrinsic consideration of the New York record shows
that his conviction, on that charge, was not supported
by competent evidence in the record - and, therefore,
"infirmity of proof" - within Radford’s meaning -
prohibits its enforcement by This Court.
54
Further, purging Wilkes, for so minor an offense,
committed so long ago, would affront "the principles of
right and justice."19
CHARGE 2
Facts
The Committee transcript shows:
March 4, 1959 Wilkes was summoned to appear to
answer a Charge that his failure to return $600.00, to
an odumare party, breached an escrow agreement and
amounted to a conversion of the funds.
The Notice, word for word, read:
CHARGE NO. 2
Facts
5. On August 15, 1958, you caused a summons in a
paternity proceeding under the New York City Criminal
19. Theard v. U.S., supra, fn 18; Selling v. Radford, supra,
fn 1 Schware v. Bd. of Bar Examiners, supra, fn. 3.
55
Court Act to be served upon Samuel Post on behalf of
your client, Mrs. Barbara Patterson.
6. On August 20, 1958, William B. Dunne, Esq. an
attorney representing Mr. Post, had a telephone
conversation with you and sent you a letter and a
check for $600.00. The letter reads in part, as follows:
"I now enclose my client’s check payable to
you in the amount of $600.00. The proceeds
of this check should be held by you in
escrow pending receipt by me of a general
release from your client to mine, and
dismissal of the present action with prejudice
to its renewal."
7. Following the receipt of Mr. Dunne’s letter and
the check for $600 you sent Mr. Dunne a letter dated
August 26, 1958, which read as follows:
"The $500.00 advance by Mr. Post will be
applied to the preservation of the moral and
material welfare of Mrs. Patterson and the
unborn child."
8. Following the receipt of your letter of August 26,
1958, Mr. Dunne in a telephone conversation with your
56
demanded the return of the $600 and in a letter sent to
you on September 3, 1958, repeated the demand.
9. You have to date failed to return any part of the
$600.00 received by you to be held in escrow and have
converted it to your own use.
Charge 2 was not amended at any stage of the
ensuing Committee hearings.
The evidence taken was concerned, solely, with
whether Wilkes was obligated to return the deposited
funds to the adversary party who had complained to The
committee - and whose complaint underlay the Charge.
(GCT-129) ;
Wilkes’ client did not complain against him - did not
appear and testify at the hearings, though she furnished
an affidavit, made part of the record, saying all the
adversary’s accusations,29 made to The Committee, were
20. The adversary party wrote a series of letters to The
Committee accusing Wilkes of anti-semitism, blackmail, seduction
and the like. (GCT-184-191, 254-256).
57
unfounded and that "Lastly, in regard to Mr. Wilkes’
fusal to return th »y, Mr. Wilkes’ letter of
: ber 15t} oy ie he f
correctly." (Resp’s Ex L-1) |
When Wilkes sought to persuade The Committee to
assist in securing his client’s appearance, to give
testimony which might be important "in an attempt to
elicit all the facts...", he was told to look to his own
devices - that no assistance would be given - that her
appearance, or not, was his responsibility, no The
Committee’s (GCT-197-199)
Indeed, The Vice-Chairman admonished him, at the
outset of the Charge 2 phase of the hearings, that "We
spite of that you did not." (GCT-132)
The Vice-Chairman intervened, again, at a later time
to remind Wilkes not to inquire into the collateral
charges, further, because "All we are concerned with
ist ton of the fail
charge. (GCT-254-255)
As the hearings neared conclusion, Wilkes resumed his
efforts to obtain his client’s attendance, as a witness,
and the Vice Chairman fumed: "Lthink you have had
] ingi iss
it] we will hav
ital in he case, as r
of fact." (GCT-352-353)
The last day, Wilkes departed the hearing room.
A brief "off the record" discussion took place and The
Vice Chairman announced: "The members of the
committee present and voting, vote unanimously to
59
recommend to the Executive Committee prosecution of
the respondent...on all three charges." (GCT-425-426)
Referee’s Heari
The Charge 2 referred to The Referee, as far as the
New York record shows, was unchanged, i.e. that Wilkes
had not returned $600.00 to an adversary party,
contrary to an escrow agreement.
There, the only witnesses were the adversary party,
Post, his attorney, Dunne, and The Grievance
Committee’s Attorney, Reynolds.
Dunne’s testimony, capsulized, was that he had
delivered $600, subject to escrow - that the terms were
not kept - and that the money had not been returned,
on demand. (RT-39-57)
Post testified that he had not recovered his money
but he was suing Wilkes for it.21 (RT-58-59)
21. Post sued Wilkes, alleging conversion, on the advice of The
Attorney For The Grievance Committee, Reynolds, to whom Post
wrote, May 15, 1959, declaring: “Just a line to let you know I
have now taken your advice and instituted private action against
... Wilkes for recovery of my money ... If 1 could repay you
for your efforts, it would make me happy.” (GCT-387-388, Resp
Ex Q)
60
Reynolds testified, perfunctorily, to identify certain
Exhibits. (RT-89-95)
The Referee was satisfied that he had inquired into
Charge 2, sufficiently, when he verified that "Wilkes did
not give Dunne back the six hundred dollars...After
demand made upon him." (RT-96)
He excluded The Grievance Committee transcript from
evidence, grumbling "I don’t want to read this entire
record." (RT-87)
There was no intimation, at any time, from The
Referee, The Prosecutor or The Witnesses, that the
disputed funds belonged to Wilkes’ client - and that his
non-return of them wronged her.
The first Department’s disbarment order22 recited that
Wilkes "is charges with converting and misappropriating
of client’s finds...(and) The evidence adduced amply
established that...(he) violated the terms of an escrow
22. Matter of Wilkes, 201 NYS2d 524 (1960).
61
agreement by misappropriating funds which rightfully
belonged to his client."23
Of course, nowhere, in the New York record, was a
charge made that Wilkes converted and misappropriated
a client’s funds - nor was any evidence introduced to
support such a charge, had it been made.
The First Department’s confusion was enormous - and
inexplicable.
CHARGE 2 LAW
On the facts of Wilkes’ case, all Radford’s
prohibitions - against derivative enforcement of
disciplinary actions - operate to save him against
removal from This Court’s Bar on the basis of his state
court, Charge 2 conviction.
Intrinsic consideration of the underlying record
establishes (1) that he had no notice he was to be tried
for taking a client’s funds (2) that there is no evidence,
23. _— Ibid.
62
at all, that he committed such an offense and (3) that
the state court proceedings were defective for "other
grave reasons."
Want of Notice
It is indisputable that Wilkes was charged with a
wrong done an adversary party, not his client - that he
sought to procure his client’s attendance but was
rebuked by The Vice Chairman who added "I don’t think
ri Se, as I
fact." (GCT-353) - that, at no time, did he have any
warning that he stood in danger of a conviction for
"converting and misappropriating" her funds - that The
Vice Chairman, repeatedly, assured him the sole concern
of The Committee (GCT-254-255) - the "simple issue"
presented (GCT-132) - the "only charge" made (GCT
254-255) was whether he was obligated to restore an
adversary party’s funds pursuant to an escrow
agreement.
Of course, if he had had any inkling that he was to
be convicted of harming his client, in any way, he
63
would have demanded that she be called by the
prosecution to testify and be cross-examined.
There is no room for rational debate.
Wilkes was denied procedural due process for want of
notice.24
The controlling law is brightlined.
Ruffalo,2> expanded and applied Radford, to hold:
That due process requires that a lawyer, prosecuted
for alleged misconduct, must be informed of the specific
nature of the charge before the proceeding begins:
That, accordingly, a State Court, disciplinary sanction
is disqualified for Federal Court acceptance upon a
showing that the accused lawyer was convicted on a
charge not timely made - or not made, at all.
Ruffalo, simply, imported into quasi-criminal
disciplinary proceedings a categorical imperative of
fairness which The Court restated, without a Dissent, in
24. — Selling v. Radford, supra, fn 1.
25. In Re Ruffalo, 390 US 544, 88 SCT 1222, 20 L.Ed2d-117 (1968).
64
Dunn29, viz that to uphold a conviction on a
charge...neither alleged...nor presented to a jury at trial
offends the most basic of notions of due process" - that
"Few constitutional principles are more firmly
established than a defendant’s right to be heard on the
specific charges of which he is accused."
Unarguably, Wilkes was convicted on an unmade,
untried charge.
Ruffalo precludes This Court’s enforcement of his
proscription in New York and Florida.
Infirmity of Proof
The evidence, in the state court record, does not
support Wilkes’ conviction for converting a client’s
funds.
Infirmity of proof, in the The Radford sense,
therefore, forecloses Federal Court enforcement of his
State Court proscription.
26. Dunnv.US., 442 US 100, 99 SCT 2190, 60 L.Ed2d 743 (1979).
65
Moreover, the infirmity, in Wilkes; case, is of
constitutional magnitude in that he was tried and
convicted in quasi-criminal prosecution where the record
contains no evidence, at all, of quilt.27
Other Grave Reason
There are many "other grave reasons" why his Florida
Bar expulsion should not be given credence.
Three of them are: (1) disparate punishment (2)
prosecutorial misconduct and (3) avoidance of conflict
with The Eleventh Circuit.
Wilkes’ indefinite suspension for the offenses involved
- assuming, arguendo, their commission - was disparate,
to the point of irrationality.
The Florida Supreme Court had never before - and
has never since - imposed such a sanction for such
misconduct.
27. Thompson v, City of Louisville, 362 US 199, 80 SCT 624, 4
L.Ed2d 654 (1960).
66
The disparity can be best illustrated by contrasting
the treatment given Wilkes - and the treatment given
some of his Law School peers.28
In Hathaway,29 a Complaint charged that, during the
period 1956-1958, a lawyer misappropriated $2,767.25
belonging to a corporate client - misappropriated
$23,400.00 in funds belonging to an estate - refused to
furnish an accounting for funds - cashed $16,000,00 in
bonds belonging to a client and misappropriated
$9,000.00 of the proceeds, etc.
He was convicted on all charges.
He was suspended for two years.
In Jacobson,29 a lawyer who prosecuted The Florida
Bar’s case against Wilkes - though they attended
28. Wilkes attended Stetson two years but graduated at Florida.
he adverts, here, to his Stetson peers.
29. Florida Bar v. Hathaway, 145 So.2d 483 (1962).
30. Florida Bar v, Jacobson, 261 So.2d 815 (1972).
67
Stetson, together - was charged with (1) mishandling
client’s affairs (2) converting $500.00 in escrow funds
(3) altering a mortgage to secure a loan in an amount
greater than the value of the property mortgaged and
(4) charging an excessive fee.
He was suspended for two months.
In Ragano,?! a lawyer - known to Wilkes at Stetson-
applied for reinstatement after suspensions for a
criminal conviction.
Simultaneously, he was the respondent in a
disciplinary proceeding charging, inter alia, that he had
refused to return $30,000.00 in funds held in trust for a
client - had commingled funds - had maintained
improper Bank accounts - and kept faulty records -
sought to exact an unauthorized excess fee, etc.
For the fresh misconduct he was suspended for three
months followed by two years probation.
31. Florida bar v. Ragano, 402 So.2d 401 (1981).
68
His reinstatement Petition - seeking to cure the
consequence of his old misconduct - was granted - but
deferred three months to allow for expiration of his
concurrently ordered second suspension.
Wilkes is pleased that The Florida Supreme Court,
habitually, is lenient in meeting our discipline - and
that the justice dispensed to Hathaway, Jacobson and
Ragano was in keeping with that dispensed to all
Florida lawyers unless their offenses be atrocious.
He simply, submits he was not treated even handedly
- which, perhaps, was attributable to unarticulated
factors.
Enforcement of a sanction so drastic and
disproportionate would not be obedient to Radford’s
Commandment that disbarment be avoided unless
“constrained” by "principles of right and justice."
P ial Mi
The New York record shows:
That the charges filed and prosecuted against Wilkes
before The New York Grievance Committee - were filed
and prosecuted by a lawyer, named Reynolds, who
69
entertained angry feelings towards Wilkes because of a
confrontation between them, earlier; (GCT-376-391)
That Reynolds’ behavior evidenced a greater zeal for
doing in Wilkes than doing justice; (GCT-376-391)
That the charges against Wilkes were so trifling and
unfounded that it is apparent they would not have been
made the subject of a disciplinary proceeding but for
Reynolds’ enmity;
That, further, the adversary party whose complaint
resulted in Charge 2 against Wilkes wrote a series of
letters to The Grievance Committee accusing Wilkes of a
catalogue of villainies including anti-semitism. (GCT-184-
191, 254-256, 388-389)
The Florida record shows:
That Wilkes was twice put to trial before a
Referee who considered his intellectual and religious
unorthodoxy so abominable as to be "incompatible with
the reputable practice of the law."
70
The District Court, in Ruffalo.>2 deemed prosecutorial
misconduct to constitute "other grave reason” for
disapproval of a state court excommunication.
Can it be said, upon "intrinsic consideration:, that the
New York and Florida records verify Wilkes was tried
and condemned, impartially?
Federal Court
Unity
In Ruffalo»>3 the District Court refused to recognize
a state court disbarment.
The Sixth Circuit,34 contrariwise, enforced it.
The District court vacated its original Order and
entered another consistent with The Sixth Circuit’s for
the sake of seemliness.2>
32. In Re Ruffalo, 249 F.Supp 432 (N.C., Ohio, 1965).
33. Ibid.
34. JInRe Ruffalo, 370 Fed 2d 447 (6th Cir., 1966).
35. In Re Ruffalo, supra, fn 25, see footnote one. The Supreme
Court, of course, reversed The Sixth Circuit.
71
In Gordon,*© a District Court, similarly, deferred to
The Tenth Circuit.
Wilkes is in good standing before The Eleventh
Circuit.
This Court might consider that Court’s imprimatur
sufficient to vouch for Wilkes.
CONCLUSION
Wilkes’ Charge 1 conviction was infirm of proof and
disproportionate in punishment.
His Charge 2 conviction was on a charge, neither
noticed nor tried - was infirm of proof - and was
punished, excessively.
Even assuming, for the sake of argument, that both
charges were, properly, made and supported by the
evidence - which Wilkes denies - the "nature of the
offenses" was so minor - and they were committed so
36. Matter of Gordon, 640 Fed 2d 1143 (10th Cir, 1981).
72
long ago - that This Court’s striking of wilkes from The
Roll would conflict with the duty not to disbar except
where “contrained by” the “principles of right and
justice."
Respectfully submitted,
WILLIAM H. MANESS, ESQUIRE
502 Florida Theatre Building
Jacksonville, Florida 32202
(904) 353-5786
Attorney for Petitioner
73
EXHIBIT V
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GREER’S REFUSE SERVICE, INC.,
Plaintiff,
-VS- CASE NO. 83-825 Civ-J-14
BROWNING-FERRIS INDUSTRIES,
INC., and BROWNING-FERRIS
INDUSTRIES OF FLORIDA, INC.,
Defendants.
ORDER
By Order entered April 8, 1986, the Florida Bar was
requested to file in camera with the Clerk of this Court
the complete record in its disciplinary proceedings
against Donald E. Wilkes so that the Court might give
“intrinsic consideration" of that record as required by
the opinion and mandate of the Court of Appeals. See
Ciensith Rialieatiiaitines: Doe Tameaibiacines
74
Industries of Delaware (Appeal of Donald E. Wilkes), 782
F.2d 918 (11th Cir. 1986).
The record has now been filed; and, in the meantime,
counsel for Mr. Wilkes has filed a motion for an "Order
Reinstating Wilkes and Establishing Procedure For a de
novo Hearing.”
We read the opinion of the court of Appeals, supra,
to apply Rule 2.04(b), M.D. Fla. Rules, as effecting a
stay of Wilke’s suspension as a member of the bar of
this Court pending "intrinsic consideration" of the
Florida Bar record. Accordingly, to the extent that his
pending motion seeks temporary restoration of his right
to practice in this Court"...to resume prosecution of the
above cause, "itis GRANTED. Mr. Wilkes may resume,
with Plaintiff's consent and pending further Order of
the Court, his prosecution of this case as Plaintiff's
counsel of record.
However, to the extent that the pending motion seeks
a de novo hearing during which evidence would be
taken anew with respect to the causes of Wilkes’
suspension by the Supreme Court of Florida, or with
respect to rehabilitative or exculpatory «:atters, it is
75
DENIED. The "intrinsic consideration" which this Court
is required to give the record in the state court
proceedings is just that -- intrinsic. Under the seminal
authority of Selling v. Bradford, 243 U.S. 46, 37
S.Ct.377, 61 L.Ed. 585 (1917), such intrinsic
consideration has been defined as an examination of the
State record to determine (1) whether the respondent in
the state proceeding was afforded due process in terms
of notice and an opportunity to be heard; (2) whether
there was "such an infirmity of proof" that the
conclusion reached by the state cannot be accepted;
and/or (3) whether there is some other "grave reason"
why the state court result should not be accepted.
There is no requirement and no present justification for
conducting any hearing for the purpose of going beyond
the state court record which is now before us.
Accordingly, Wilkes may have twenty (20) days within
which to show cause, by written pleading or
memorandum, why this Court should not, by reason of
one or all of the three factors mentioned in the
preceding paragraph, suspend him from further practice
of law before this Court due to his previous suspension
76
from practice by the Supreme Court of Florida through
its order and opinion in The Florida Bar v, Wilkes, 199
So.2d 472 (Fla. 1967). The Court will then decide the
issues presented with or without such additional
proceedings or hearings as the Court shall then deem
necessary.
The Clerk is directed to permit Mr. Wilkes and his
counsel of record full access to the state court record
filed in camera.
IT IS SO ORDERED.
DONE and ORDERED at Jacksonville, Florida, this 19
day of June 1986.
WM. TERRELL HODGES
CHIEF UNITED STATES
DISTRICT JUDGE
HOWELL W. MELTON
UNITED STATES DISTRICT JUDGE
SUSAN H. BLACK
UNITED STATES DISTRICT JUDGE
77
EXHIBIT VI
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT COURT
JACKSONVILLE DIVISION
GREER’S REFUSE SERVICE, INC.
Plaintiff,
-VS- CASE NO. 83-825 Civ-J-14
BROWNING-FERRIS INDUSTRIES OF
DELAWARE and BROWNING FERRIS
INDUSTRIES OF FLORIDA
Defendants.
ORDER
The Defendants, through their counsel of record, have
filed a motion seeking the entry of an order
disqualifying Mr. Donald E. Wilkes, one of the attorneys
of record for the Plaintiff, and suspending him from nay
further practice of law before this Court. The motion
was made pursuant to Rule 2.04(b), M.D. Fla. Rules, and
78
although it was not precisely the type of motion
contemplated by the Rule, the Court determined that
the issue presented should be considered by a three
judge panel. Accordingly, such a panel was convened.
I.
On June 21, 1960, the State of New York disbarred
Mr. Wilkes from the practice of law in that state on
the grounds that he misappropriated client’s funds,
communicated directly with a party represented by
counsel to negotiate a settlement, and mis-advised a
client in obtaining a void decree. In Re Wilkes, 11 App.
Div.35, 201 N.W.S.2d 524 (1960). In 1963, the Florida
Bar commenced proceedings to disbar Wilkes in Florida;
and on April 19, 1967, the Florida Supreme Court
suspended Wilkes from the practice of law but declined
to do so for the period of time requested by the Bar.
The Florida Bar v. Wilkes, 199 So.2d 472 (Fla. 1967),
cert. denied, 390 U.S. 983, 88 S.Ct. 1104 (1968). Rather,
the suspension was to continue until such time as
Wilkes could demonstrate to the Florida Bar and to the
Court that he had rehabilitated himself. Id. The Court
79
premised its suspension on the first two grounds cited
by the New York court. Id., 199 So.2d at 473.
Subsequently, on June 28, 1967, the Florida Supreme
Court denied Wilkes’ motion for reinstatement to active
status. The Florida Bar v. Wilkes, 200 So.2d 177 (Fla.
1967). Wilkes has remained suspended from practice in
Florida to date; indeed, he has not again petitioned the
Florida Supreme Court for reinstatement and he is not
presently a member in good standing of the organized
bar of any state.
In 1971, Wilkes petitioned the United States District
Court for the Southern District of Florida to confirm
his credentials to practice before that Court. The
Court considered the petition as one for reinstatement
and dismissed it, apparently assuming that the state
suspension had operated to automatically suspend Wilkes
from practice before the District Court. Therefote, the
Court stated, it "was appropriate to abstain until Wilkes
filed a petition for reinstatement with the Florida
Supreme Court." In Re Wilkes, 494 F.2d 472, 475 (Sth
Cir. 1974). On appeal, the Fifth Circuit noted that the
Local Rules of the Southern District in force at the
80
time of the Florida Supreme Court action did not
provide for such automatic suspension, and consequently
reversed on the ground that the District Court erred
when it assumed that federal bar suspension flowed
automatically from state suspension. Id. at 476. The
Court of Appeals instructed the District Court to treat
the motion as one for confirmation of credentials, and
it directed the District Court to make its own
determination whether Wilkes should be suspended from
practice before the Southern District after giving
"intrinsic consideration" to the New York and Florida
decisions. Id.
On remand, the District Court adopted the findings of
the Grievance Committee which it appointed to examine
Wilkes’ qualifications to practice and granted the
petition to confirm credentials. In Re Wilkes, Case No.
71-1214 Civ-WM (Order of August 10, 1978). No appeal
of that decision was prosecuted.
Il.
Since the August 10, 1978 Order of the United States
District Court for the Southern District of Florida,
81
Wilkes has apparently believed himself able to practice
law in all Federal District Courts in this state. ! Being
of a contrary view, the Defendants filed the motion
currently before the panel. The precise issue
confronting the panel, then, is whether Mr. Wilkes shall
be allowed to continue to practice in the Middle
District of Florida.
It cannot be gainsaid that federal courts are
empowered to determine the fitness of attorneys to
practice before them. E.g. Theard v. United States. 354
U.S. 278, 77 S.Ct. 1274 (1957). Indeed, Title 28, United
States Code, Section 1654 expressly authorizes the
federal courts to make rules governing the admission of
counsel to practice. The general practice utilized by
1. Indeed, it appears the Clerk of this Court erroneously issued
Wilkes a Certificate of Good Standing in 1974 although he had
been suspended from further practice in this District in 1967.
Additionally, on July 19, 1984, the Eleventh Circuit Court of
Appeals admitted Wilkes to practice before that Court.
82
the District Courts, however, is that a lawyer gains
admission to a federal court by way of admission to
state court, most often by order of the highest state
court. See Theard, 77 S.Ct. at 1276, n. 1. Such is the
case in this District under both Local Rule 2.01, which
is now the force, and former Local Rule 3(b), which was
in effect at the time of Wilkes’ state suspension.
The rationale for such derivative admission practices
is easily grasped. There is simply no federal mechanism
in the District Court for determining an appicant’s
fitness to practice law before it; consequently, District
Courts typically relay on prior admission to the bar of
the state as evidence of some acceptable level of
professional competence and integrity. In the Matter of
Roberts, 682 F.2d 105, 108 (3d Cir. 1982). Quite apart
from the administration of bar exams (which might
conceivably be duplicated in this court), The Florida Bar
conducts extensive background investigations of
applicants for admission; and, following admission,
finances and maintains an extensive program relating to
client security and professional discipline. Moreover,
derivative admission protects the public interests
83
because admission to both bars allows an attorney to
carefully consider with personal detachment the proper
forum when analyzing a client’s case rather than of
necessity pursuing the claim only in the federal court.
Id.
Wilkes makes much of the fact that this court, like
all federal courts, retains independent control over
admission, discipline and disbarment of attorneys who
seek to practice before it. See In Re Ruffalo, 390 U.S.
544, 88 S.Ct. 1222, 1224 (1968). However, once the
policies animating derivative admission are understood,
it is clear that the primary purpose of the Local Rules
governing admission, discipline and disbarment is to
permit the court to demand and enforce higher, not
lower, standards of professional competence than might
otherwise be tolerated.
The stark, ultimate fact is that Mr. Wilkes seeks to
continue practicing in the Middle District without
meeting the requirement of a resident attorney that he
be a member in good standing of the Florida Bar. Local
Rule 2.01, M.D. Fla. Rules. In fact, as previously noted,
Wilkes has not petitioned the Florida Supreme Court for
84
reinstatement and is not presently a member in good
standing of any state bar. Nor does he here challenge
the 1967 findings of the Florida Supreme Court.2 By
necessary implication, then, the premise of Wilkes’
position is that the Court should either waive altogether
any minimum standard of competence, such as that
insured by the Florida Bar admission and disciplinary
process, or determine for itself his fitness to practice
before it without regard to his current suspension in
this state.>
These alternatives are neither consistent with the
Local Rules nor mandated by existing precedent. To the
contrary, State disbarments and suspensions are entitled
to great respect in the federal courts, In Re Ruffalo,
390 U.S. 544, 88 S.Ct. 1222 (1968), and should be relied
2. Despite the Court’s Order that he do so, Wilkes has not
supplied the Court with the record of the New York or the
Florida disbarment proceedings.
3. This seems so whether the Court views Wilkes’ response to
the motion to disqualify as a petition for confirmation of
credentials or as a petition for reinstatement. Compare In Re
Wilkes, 494 F.2d 472 (Sth Cir. 1974).
85
upon if the state action meets three requirements: (1)
the state must have given the atiorney notice of the
charges and an opportunity to be heard; (2) the
evidence must support the findings made; and, (3) there
must be no other "grave reason" for ignoring the
actions taken. Selling v. Radford, 243 U.S. 46, 37 S.Ct.
377 (1917); In Re Dawson, 609 F.2d 1139 (Sth Cir. 1980);
Wrighten v. United States 550 F.2d 990 (4th Cir. 1977).
Here, Mr. Wilkes has not contested the procedural
validity of the state proceedings nor has he
controverted the accounts of the facts relied upon by
the state courts in reaching their disbarment decisions.
Significantly, the opinion of the Southern District which
confirmed Wilkes’ credentials and upon which Wilkes
relies so heavily here, does not question the procedural
or substantive correctness of the Florida Supreme
Court’s decision. Additionally, as noted earlier, Wilkes
has not supplied this Court with the record of either
the New York or the Florida proceedings; but the
Court’s own examination of the opinions of the Florida
Supreme Court reveals that the requirements of Selling
yv. Radford have been met.
86
The record before the panel is completely devoid of
any meritorious reason for allowing Mr. Wilkes to
continue practicing law before this Court. To permit
him to do so would engage this Court in admission and
discipline practices contrary to those contemplated in
the Local Rules as dictated by practicality and comity,
and would take this Court down a path it does not wish
to follow.
The motion to disqualify Mr. Donald E. Wilkes from
further representation in this case is GRANTED.
Similary, the motion to suspend Mr. Donald E. Wilkes
from the further practice of law in the Middle District
of Florida is GRANTED and the Clerk is directed to
strike his name from the list of attorneys currently
authorized to practice in this District.
IT IS SO ORDERED.
87
DONE and ORDERED this 9 day of April, 1985.
WM. TERREL HODGES
CHIEF UNITED STATES
DISTRICT JUDGE
HOWELL W. MELTON
UNITED STATES DISTRICT JUDGE
SUSAN H. BLACK
UNITED STATES DISTRICT JUDGE
88
EXHIBIT VII
UNITED STATES DISTRICT COURT
MiDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GREER’S REFUSE SERVICE, INC.,
Plaintiff,
-VS- CASE NO. 83-825 Civ.-J-14
BROWNING-FERRIS INDUSTRIES,
INC., and BROWNING FERRIS
:NDUSTRIES OF FLORIDA, INC.
Defendants.
ORDER
The Defendants, through their counsel of record, have
filed a motion seeking the entry of an order
disqualifying Mr. Donald E. Wilkes, one of the attorneys
of record for the Plaintiff, and suspending him from any
further practice of law before this Court. The motion
was made pursuant to Rule 2.04(b), M. D. Fla. Rules.
89
Accordingly, the Honorable Susan H. Black, as the
presiding judge in this case, brought the motion to my
attention as Chief Judge because of the provision of the
Rule that matters arising under it ".. . shall be heard
and determined by the Chief Judge of the Court sitting
with any two or more of the other judges of the
District as the Chief Judge shall designate." Although
the present motion does not fit nicely within the
description of those to be heard by a panel of three
judges under the Rule, it is otherwise appropriate and
entirely in keeping with the spirit of the rule that it be
heard and determined in that way.
Accordingly, the pending motion for disqualification
will be considered and determined by a three judge
panel of this Court consisting of the Honorable Howell
W. Meiton, the Honorable Susan H. Black, and myself as
Chief Judge. A hearing on the motion will be scheduled
by separate notice.
IT IS SO ORDERED.
90
DONE and ORDERED at Tampa, Florida, this 12 day
of January, 1984.
CHIEF UNITED STATES
DISTRICT JUDGE
EXHIBIT VIII
UNITED STATE DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GREER’S REFUSE SERVICE, INC.,
Plaintiff,
-VS- CASE NO. 83-825 CIV-J-14
BROWNING-FERRIS INDUSTRIES,
INC., and BROWNING-FERRIS
INDUSTRIES OF FLORIDA, Inc.
Defendants.
/
MEMORANDUM IN OPPOSITION TO BFI’s
MOTION TO SUSPEND AND DISOQUALIFY
91
Preface
The Motion To Suspend and Disqualify Wilkes
signifies that B.F.I.’s Attorneys "play hardball."
Wilkes is disadvantaged.
He has neither the talent, temperament nor inclination
to be a "hardballer".
He things, in truth, that “hardballing”, certainly,
menaces civility in the Courtroom - and may tend to
render the practice of law a kind of blood sport.
The Motion’s A it
The Motion, in words or effect argues:
That This Court should require Wilkes to demonstrate
why his good standing in The Middle District should not
be revoked in contemplation of the disciplinary action
taken against him in New York, and derivatively, in
Florida;
That the Fifth Circuit’s pronouncements in Wilkes’
case has no relevance to his Middle District status; |
1. 494 Fed 2d 472 (Sth Cir 1974).
92
Wilkes’ ion
That, further, neither comity, collateral estoppel,
nor any other adequate legal resason enjoins This Court
to defer to The Southern District’s prior ajudication of
Wilkes’ right "to practice law before The Frderal Courts
in this State."2
Wilkes contends:
That The Fifth Circuit’s decision was founded on more
than a technicality;>
That Judge Wisdom’s Opinion took pains to chronicle
Wilkes’ troubles with The New York and Florida Bars--
most especially the grotesqueries which may have
tainted the proceedings in both States, that is; the
charge, in New York, that he was an anti-Semite and
the charges, in Florida, that he was irreligious and a
"believer in Existentialism, a philosophy of radical
individualism incompatible with the reputable practice of
the law;"
2. See the decision of the Southern District, en banc, annexed,
marked Exhibit A.
3. Supra, fn 1.
93
That, indeed, The Court’s reversal and remand,
accompanied by an order that he be restored to The
Southern District Bar, pendente lite, was tantamount to
provisional vindication of Wilkes’ claims on the merits.
That, The Southern District’s trial de novo of Wilkes’
cause spoke to his qualifications to continue to
"practice law before the Federal Courts in this State"--
not the Southern District, alone:4
That, in all events, This Court, as a matter of comity,
should honor the Southern District’s adjudication and
decline to compel Wilkes to relitigate his qualifications
in The Middle District.
Southern District’s Adjudication
Wilkes was admitted to The Southern District, in
1950--and grandfathered into The Middle District.
He filed his Petition To Confirm his Federal Bar
Credentials in The Southern District on the
understanding that the determination made, there, would
be dispositive in The Middle District as well.
4. Supra, fn 2.
94
His Petition was dismissed but The Fifth Circuit
reversed and ordered that he "be entitled to practice
... pendente lite."
On remand, The Southern District appointed a
Grievance Committee to conduct an inquisition into
Wilke’s "qualifications to practice in the Southern
District of Florida."
December 30, 1977, The Committee concluded, after a
trial de novo, that "we believe there now exists no
present basis for holding Mr. Wilkes disqualified from
continuing to practice law before the Federal Courts in
this State."
August 2, 1978, The Southern District, sitting en
banc, entered an Order declaring that "this Court
concurs in the Committee’s conclusion and GRANTS
Wilkes’ Petition to confirm credentials."°
Supra, fn 1.
Supra, fn 2.
Supra, fn 2.
Supra, fn 2.
OIA
95
Bar Reinstatement
Wilkes has never applied for reinstatement to The
Florida Bar.
B.F.I.’s citation to such effect is misleading.?
At the outset of its serivative prosecution, in 1963,
The Florida Bar refused to accept Wilkes’ annual dues--
the effective result of which was to suspend him,
peremptorily--notwithstanding that The Integration Rule
made no provision, therefore.
Wilkes petitioned The Supreme Court to compel
acceptance of his dues, pendente lite.
The Court, obliquely, avoided confronting the issue by
inaction for four years, until 1977, when final
determination, on the merits, of the proceedings against
Wilkes mooted the Petition.
9. The Florida bar v, Wilkes, 200 So.2d 177 (FL, 1967).
96
Then The Court dismissed the Petition and admonished
Wilkes to apply for reinstatement in the usual way.
He refused.
Conclusion
The Southern District has adjudicated Wilke’s Federal
Bar Credentials and comity precludes their relitigation
in The Middle District.
The Motion to Suspend and Disqualify should be
denied.
Respectfully submitted,
Donald E. Wilkes
Attorney at Law
P. O. Box 2753
Gainesville, Florida 32602
904/374-8458
97
EXHIBIT IX
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
___ JACKSONVILLE DIVISION _
GREER’S REFUSE SERVICE, INC.,
A FLORIDA CORPORATION
Plaintiff,
-VS- CASE No. 83-825-Civ-J-14
BROWNING-FERRIS INDUSTRIES,
INC., and BROWNING-FERRIS
INDUSTRIES OF FLORIDA, INC.
Defendants.
MOTION TO SUSPEND
AND DISQUALIFY PLAINTIFF’S COUNSEL
Defendants, Browning-Ferris Industries, Inc. ("BFI")
and Browning-Ferris Industries of Florida, Inc. ("BFI-
Florida"), move the Court, pursuant to Rule 2.04(b),
Rules of the United States District Court for the Middle
District of Florida, for the entry of an order suspending
Mr. Donald E. Wilkes, one of the attorneys of record
for plantiff, Greer’s Refuse Service, Inc., from the bar
of this Court and disqualifying Mr. WIlkes from further
98
representation of plaintiff in this action, on the ground
that Wilkes has been suspended from The Florida Bar.
In support of this motion, defendants state:
1. On April 19, 1967, in an action commenced by The
Florida Bar, the Supreme Court of Florida suspended
Wilkes from practicing law in the State of Florida until
such time as he could demonstrate to The Florida Bar
and to the Supreme Court that he had rehabilitated
himself.
2. On June 28, 1967, the Supreme Court of Florida
denied Wilkes’ motion for reinstatement to active status
in The Florida Bar.
3. Wilkes has never again petitioned the Florida
Supreme Court for reinstatement to The Florida Bar,
and, therefore, Wilkes is not a member of The Florida
Bar at the Present time.
4. Rule 2.04(b) of the Rules for the Middle District
of Florida provides that when it comes to the attention
of the Court that a member of its bar has been
disbarred or suspended by the Suprement Court of
Florida, such disbarment or suspension operates as an
automatic suspension of the attorney’s right to practice
99
before the Court, subject to the attorney’s right to file
within 20 days a petition seeking relief from operation
of this rule.
5. This motion is made to notify the Court of Wilkes’
suspension from The Florida Bar.
SMITH & HULSEY
Stephen D. Busey
Waddell A. Wallace III
500 Barnett Bank Building
Jacksonville, Florida 32202
(904) 359-7700
Attorneys for Defendants,
Browning-Ferris
Industries, Inc.
and Browning-Ferris
Industries of Florida, Inc.
100
EXHIBIT X
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
IN RE: DONALD E. WILKES
Motion to Confirm
Credentials
NO. 71-1214-Civ-QM
/
ORDER GRANTING PETITIONER WILKES’ PETITION
TO CONFIRM CREDENTIALS
Mr. Wilkes was admitted to the Florida Bar in 1950.
He was also a member of the New York Bar. In 1960,
the New York Supreme court disbarred Wiles pursuant to
a recommendation of a referee appointed by the
Grievance Committee of the New York City Bar
Association. The referee found Wilkes guilty on three
charges violating the Professional Canons of Ethics (1)
violating terms of an escrow agreement; (2) misadvising
a client as to the validity of a Mexican divorce, and (3)
directly communicating with a party represented by
101
counsel in an attempt favorably to influence a
settlement in a personal injury action. In 1963, The
Florida Bar commenced proceedings to disbar Wilkes in
Florida, based upon the New York adjudication that
Wilkes had been guilty of misconduct. The Florida
Supreme Court rejected the first judgment of the
Florida Bar’s Board of Governor’s recommending Wilkes’
disbarment and remanded the case with directions that
it be returned to the referee, appointed by The Bar, for
reconsideration and recommendations as to the discipline
to be imposed on Wilkes for the misconduct of which he
was found guilty in New York as charged. Florida Bar
vy. Wilkes 179 So.2d 193 (Fla. 1965). The Court
concluded that neither comity nor full faith and credit
requires that the judgment in New York result in
disbarment. Id. at 196. The Court heid, however, that
under Rule 11.02(6) of the Florida Integration Rule, the
New York judgment operated as conclusive proof of
guilt of the acts of misconduct adjudicated in that
judgment, but that the discipline to be meted out for
such acts by Florida is to be determined by the Florida
102
Supreme Court and its agencies in the same manner as
in all other disciplinary proceedings.
Although the referee had based his recommendation
primarily on the misconduct determined by the New
York referee, he had also relied on Wilkes’ belief in
existentialism as further ground for holding him unfit to
practice. The Florida Supreme Court inveighed against
this ground by stating that: "Mere belief in unorthodox
philosophy does not in itself make one unfit to practice
law." Id. The referee had also noted the absence of
any testimony by Wilkes as to church, civic and social
affiliations. The Court considered that this mention
required it to say that "while evidence of such activities
may be offered by an accused to demonstrate moral
fitness, the lack of evidence thereof may not be
considered as negating fitness to practice or moral
character.”
Upon remand, without any further hearings, the
referee considered the entire record, including that of
the New York proceedings, and found that Wilkes should
be disciplined in Florida for only two of the acts of
misconduct (charges 1 and 3) adjudicated in New York.
103
The Florida Bar of Governors approved the referee’s
recommendation of disbarment for five years, retroactive
to the date of the filing of the Florida complaint.
In 1967, the Florida Supreme Court affirmed the
findings of guilt on the two charges, but concluded that
disbarment for five years was not necessary to
accomplish the purpose of disciplinary actions. Florida
Bar v. Wilkes, 199 So.2d 473 (Fla. 1967). Thus the
Court suspended Wilkes until such time as he should
demonstrate to the Florida Bar and the Court that he
should be reinstated to practice law. The U.S. Supreme
Court denied certiorari from the judgment of the
Florida Supreme Court, 390 U.S. 983 (1968).
Wilkes has never requested reinstatement to the
Florida Bar, because he feels that such action would be
tantamount to and admission of guilt of the charges.
Instead, on August 6, 1971, Wilkes filed the subject
"Motion to Confirm Credentials Before the Courts of the
Southern District." The motion alleged that Wilkes was
purged in Florida as a suspected intellectual and "active
follower of the existentialism philosophy of radical
individualism." Wilkes contended that the District court
104
must give "intrinsic consideration" to the New York
record to determine whether in the New York
proceeding there had been (1) want of due process; (2)
informity of proof; (3) "other grave error that would
justify federal courts’ not giving effect to the New
York judgment directly or indirectly." He also argued
therein that the Florida proceeding cannot rise above
the level of the New York proceeding.
On September 2, 1971, Judge Mehrtens entered an
order taking jurisdiction of the matter. Therein the
court denied Wilkes’ ex parte petition for confirmation
"for the reason that he failed to comply with the local
rules of this court regarding suspension of attorneys,
and further that his delay for filing such a petition is
not sufficiently explained in his petition." Upon
suggestion by The Florida Bar, the court treated Wilkes’
petition not as a motion for confirmation, but rather as
one for reinstatement. In making this argument, The
Florida Bar assumed that Wilkes had in fact been
suspended from the Southern District in 1967,
immediately or shortly after his suspension in Florida.
Based on this assumption The Bar argued that the
105
district court should abstain from deciding the merits of
the petition because the petitioner then and at all times
had a present right to petition the Florida Supreme
Court for reinstatement. In an order entered December
16, 1971, the Court agreed that it was appropriate that
it abstain until wilkes filed a petition for reinstatement
with the Florida Supreme Court. The district court
accordingly dismissed the complaint.
On appeal, the Sth Circuit, In Re Wilkes, Slip Op. No.
72-1399, May 23, 1974, p. 4010, held that (1) "Wilkes is
on solid ground in asserting that disbarment by federal
courts does not automatically flow from disbarment by
State courts. Federal courts must ’determine for
ourselves the right to continue to be a member of
...{the federal Bar}’ after giving intrinsic consideration’
to the underlying record." Id. at 4014; (2) "The trial
court was mistaken in assuming that Wilkes ever was
suspended from practice before the Southern District.
We conclude, therefore, that the Court erred in treating
the petition as one for reinstatement, and in deciding
on that basis that it should abstain pending an
application for reinstatement in Florida." Id. at 4016;
106
(3) "A remand will be required in this case so that the
district court may hold a hearing (in effect, a de novo
hearing) to conduct such an inquiry. Federal Courts
must determine’ for ourselves the right to continue to
be a member of...[the federal] Bar’ after giving ‘intrinsic
consideration’ to the underlying record to verify
whether ’one or all of the following ...conditions
appear: (1) that, the state procedure, from want of
notice or opportunity to be hear, 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 without 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 to
do so.’ Selling v. Radford, 243 U.S. 46, 51... we find
no merit in [Wilkes] suggestion that we are in a
107
position to decided the case in full, and instead order a
remand to the district court for decision on merits. We
hold that Wilkes is entitled to practice before the
Southern District of Florida pendente lite." Id. at 4018-
19.
On December 30, 1977, the Grievance Committee
submitted to this Court a detailed report concerning
petitioner’s qualifications to practice in the Southern
District of Florida. The Committee concluded that:
Under all the circumstances surrounding the
charges the and all the evidence concerning them,
the permanent disbarment of Wilkes is a more
severe punishment than Wilkes’ misconduct
justified, and that as of this time he has been
disciplined enough.
Recognizing that Mr. Wilkes, in the last seventeen
years, has suffered severe sanctions, and without
in any way approving Mr. Wilkes’ conduct, and
indeed, conceding that such conduct was
censorable, we believe there now exists no present
basis for holding Mr. Wilkes disqualified from
continuing to practice law before the Federal
Courts in this State (pp. 101-02).
Accordingly, upon examining the Grievance Committee
Report, this Court concurs in the Committee’s
conclusion and GRANTS petitioner Wilkes’ Petition to
Confirm Credentials.
108
All documents and matters from the Grievance
committee relating to this matter shall be preserved as
confidential, non-public record cmlees otherwise directed
by the Court.
ENTERED at Miami, Florida, this 2 day of August,
1978.
CHIEF UNITED STATES DISTRICT JUDGE
CHIEF UNITED STATES DISTRICT JUDGE
CHIEF UNITED STATES DISTRICT JUDGE
CHIEF UNITED STATES DISTRICT JUDGE
CHIEF UNITED STATES DISTRICT JUDGE
CHIEF UNITED STATES DISTRICT JUDGE
109
cc: Chairman, Grievance Committee
Nicholas Friedman, Esq.
Norman A. Faulkner, Esq.
John Fanning, Esq.
United States Attorney
110
EXHIBIT XI
Local Rule 2.04(b)
Whenever it appears to the Court that any member of
its bar, admitted generally under Rule 2.01 has been
disbarred or suspended from practice by the Supreme
Court of Florida, or by any other Court of competent
jurisdiction, as the case might be, or has been convicted
of a felony in any court, such disbarment, suspension or
convictions hall, twenty (20) days there-after, operate
as an automatic suspension of such attorney’s right to
practice in this Court; provided, however, the attorney
may file, within such twenty (20) day period, a petition,
with copy served upon the United States Attorney,
seeking relief from the operation of this rule, and if a
timely petition is filed, suspension shall be stayed until
the petition is determined. If such petition is filed by
an attorney who has been admitted to practice generally
under Rule 2.01 of these rules, it shali be heard and
determined by the Chief Judge of the Court sitting with
any two or more of other judges of the District as the
Chief Judge shall designate. If such petition is filed by
111
an attorney who has been admitted to practice specially
under Rule 2.02 of these rules, it shall be heard and
determined by the judge assigned to the case in which
special appearance has been made.
112
EXHIBIT XII
United States Constitution
Amendment V
No person shall be held to answer for a capital or
other infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in
the land or naval forces, or in the militia when in
actual service, in time of war or public danger; nor
shall any person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be witness against
himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property
be taken for public use without just compensation.
113
EXHIBIT XIll
United States Constitution
Amendment XIV
All persons born of naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States, nor shall any State deprive any person of
life, liberty, or property, without due process of law,
nor deny to any person within its jurisdiction the equal
protection of the laws.
vi
PROOF OF SERVICE
1, WILLIAM H. MANESS, attorney for Donald E.
Wilkes, Petitioner herein, and a member of the Bar of
the Supreme oy of the United States, hereby certify
that on the ao day of September, 1988, | served
three copies of the foregoing Petition for Certiorari on
the Solicitor General, Department of Justice,
Washington, D.C., 20530 by mailing said copies in a
duly addressed envelope with Air Mail postage and
one copy of said Petition on Honorable Richard P.
Storch, U.S. Attorney, P.O. Box 600, Jacksonville,
Florida 32201.
Attorney
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