Opposition Brief — Calvo v. Florida Bar

No. 93-1779

AUG 12 1994

RK

In The

Supreme Court of the United States

October Term, 1994

+

WILLIAM A. CALVO, III,

VS.

THE FLORIDA BAR,

Petitioner,

Respondent.

Petition For Writ Of Certiorari

To The Supreme Court Of The State Of Florida

+

BRIEF IN OPPOSITION

7 —

Barry Scott RICHARD

GREENBERG, TRAURIG, HOFFMAN,

Lirorr, Rosen & QuENTEL

101 East College Avenue

Post Office Drawer 1838

Tallahassee, Florida 32301

(904) 222-6891

Attorney for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OP CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

pes 8 Be Be | rr err Pree ii

SUREIMEARY OF ABISUMENT 2.2.0 ccsccsecscversves 1

I oa Cen dana sbuasteiscaesandnuuaena ss 3

I The petition fails to establish that the constitu-

tional issues were properly raised below ....... 5

II The petition fails to establish the existence of

any substantial federal question relating to

COE Ge GE aa 0.5 5 Co Ve rect ieeiernss 7

III The petition fails to establish that Mr. Calvo

was denied equal protection rights........... 15

IV The petition fails to establish that the disbar-

ment of Mr. Calvo constituted an application

OE GR GE PONE. TRIS BI oo ohn ceceasesesecsee:s 17

V_ The decision to disbar the petitioner was not

based upon an interpretation of federal law.... 18

VI The Court should adhere to its policy of

extending considerable deference to states in

the administration of attorney discipline..... 21

CRONE 06k S be udehecetaredceesnterétevenes 22

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ii

TABLE OF AUTHORITIES

Page

CASES

Board of Directors of Rotary International v. Rotary

Club of Duarte, 481 U.S. 537, 107 S.Ct. 1940, 95

Le OG Core es ovtoccicasduesberss Carats 6

Clulow v. Oklahoma, 700 F.2d 1291 (10th Cir. 1983).... 10

Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715,

839: LD FO ISG. noe ie ohn iv ee ends vaeences 10

DeBock v. State, 512 So. 2d 164 (Fla. 1987)........... 10

Donaldson v. Read Magazine, Inc., 333 U.S. 178, 65

S.Ct. 591, 92 L.Ed.2d GZS (194B)..05 2 nc ccvecscivecs 16

Enterprise Irrigation District v. Farmers Mutual

Canal Co., 243 U.S. 157, 37 S.Ct. 318, 61 L.Ed. 644

1) er ner re ee nn ee TE 20

Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32

L.BG36 566 C1972) ice ccticivevi nanan 13

Garcia v. Wilson, 731 F.2d 640 (10th Cir. 1984)....... 10

Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88

LOGI SOT (URGES ik vc tnesede chaste 17

Herb v. Pitcairn, 324 U.S. 117, 69 S.Ct. 459, 89 L.Ed.

WD POON ioe bic cnadnctes keine ee 20

In re Snyder, 472 U.S. 634, 105 S.Ct. 2874, 86

Bee. Fe. errr rere a rrr 8

Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51

EM FEE CANES Di icccas cecbivsneeeksrnreescarss 16

Konigsberg v. State Bar of California, 353 U.S. 252, 77

SAR. 722, 1 LBA Ze GIO Ge kc cdvstvcicssavsece'e 22

TABLE OF AUTHORITIES - Continued

Page

Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77

ae Curae ote insect eieh es 66 62 20

Middlesex County Ethics Committee v. Garden State

Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73

EC c2 0 CGA e500 ot oscces bbs sccde ve 21

Parker v. Levy, 417 U.S. 733, 94 S.Ct. 3039, 41

eT re ery eee 8, 9

Portland Ry. Co. v. Railroad Commission of Oregon,

229 U.S. 397, 33 S.Ct. 820, 57 L.Ed. 1248 (1913)..... 5

Re Sawyer, 124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402

ee eed ead. bette ie ie heeddeeeeees 10

Schware v. Board of Bar Examiners of the State of New

Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796

PTT inter tacos ue ues diek ob es dane eethn én as 21

The Florida Bar v. Carr, 574 So. 2d 59 (Fla. 1990) ....15

The Florida Bar v. Chilton, 616 So. 2d 449 (Fla. 1993).... 15

The Florida Bar v. Davis, 419 So. 2d 325 (Fla. 1982) .... 15

The Florida Bar v. McCain, 330 So. 2d 712 (Fla.

The Florida Bar v. Miele, 605 So. 2d 866 (Fla. 1992).... 15

Theard v. United States, 254 U.S. 278 (1956).......... 21

United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079,

ic co wea veeteuctwéeee eee 17

Village of Hoffman Estates, Inc. v. The Flip Side, 455

U.S. 489, 102 S.Ct. 662, 71 L.Ed.2d 362 (1982)...... 7

Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692,

ee a odes wutiseeadccucdoeds 12

Tn

iv

TABLE OF AUTHORITIES - Continued

Page

STATUTES AND REGULATIONS

ee cas ok ce pale bwedutunshdeebeceheciecbessis 5

Articles 133 and 134, Uniform Code of Military

NS b's vce Chon 6 hee hedhieee eee tkeeeuh ekeiber bin 9

Fla. Bar Code of Pro. Resp., DR 1-102(A)(1) (1985) .... 18

Fla. Bar Code of Pro. Resp., DR 1-102(A)(6) (1985)

sdeehdS RiMeNCUREMS Ea eae CUR aDEERRRS EV ET Ss 7, 10, 18

Federal Rule of Appellate Procedure 46.............. 8

Peeee Tee Tee BOT isc oc cc eniccccccennscecss: 6

OTHER AUTHORITIES

State Constitutions and the Protections of Individual

Rights, 90 Harv. L. Rev. 489 (1977)................ 20

SUMMARY OF ARGUMENT

The petitioner was disbarred after having been

found, in a full evidentiary hearing, to have participated

in fraud and other inappropriate acts relating to securi-

ties sales. The petition fails to establish the jurisdiction of

this Court and raises no substantial federal question. The

petition fails to comply with the requirements of Supreme

Court Rule 14.1(h) that the Statement of the Case specify

the stage in lower court proceedings at which the federal

questions were raised, the method or manner of raising

them, their disposition by the lower courts and the speci-

fic places in the record which reflect that the federal

question was timely and properly raised.

DUE PROCESS

The language of the challenged rule is not unduly

vague. It meets the criteria established by this Court

when it upheld equally general provisions on the basis of

established authoritative interpretation and the existence

of traditional codes of behavior. In addition, there is no

overbreadth doctrine applicable to vagueness analysis

and the conduct of the petitioner was clearly unaccept-

able by any standard.

The petition does not establish that there was a

denial of assistance of counsel. The petitioner was repre-

sented by counsel at the evidentiary hearing and the

Referee acted within reasonable discretion in refusing to

permit an additional attorney who was a potential wit-

ness.

The petitioner received adequate notice of the evi-

dentiary hearing. There is no constitutional requirement

that the petitioner receive notice of a filing of a complaint

against him with a grievance committee or notice of the

grievance committee’s decision prior to the committee

filing specifications against the attorney.

The petition fails to disclose any constitutional viola-

tions with respect to the Referees’ evidentiary and dis-

covery rulings.

EQUAL PROTECTION

The petition fails to establish any basis for the asser-

tion that the assessment of costs against the petitioner

was based upon a different standard than such assess-

ment against others because of the petitioner’s national

origin.

The mere fact that the petitioner was enjoined under

federal securities laws from engaging in a securities prac-

tice and also disbarred by The Florida Bar did not consti-

tute cruel and unusual punishment. No other basis for

concluding that the disbarment was cruel and unusual is

cited in the petition.

The Referee’s reference to the petitioner’s place of

birth in his general discussion of the petitioner’s bio-

graphical background, with no further reference to

national origin in the opinions of either the referee or the

Florida Supreme Court, fails to establish prejudice based

upon national origin.

EX POST FACTO

The rule under which the Petitioner was disbarred is

not an ex post facto law as prohibited by the United

States Constitution. First, the rule is not penal in nature.

Second, the conduct for which the petitioner was dis-

barred occurred at a time when the rule was in effect.

Third, while the rule was changed, the same conduct

continued to remain a basis for disbarment after the

change.

FEDERAL SECURITIES LAWS

The Court need not address the issue of construction

of federal securities laws since neither the Referee or the

Florida Supreme Court based their decisions upon federal

law. The petitioner was disbarred for committing acts

which violated Florida’s rules of professional conduct.

DEFERENCE TO STATES

The Court has recognized that states have an impor-

tant interest in maintaining and assuring the professional

conduct of attorneys which they license. Accordingly, the

Court has extended considerable deference to states in

the administration of attorney discipline.

+

ARGUMENT

This case involves an attorney’s disbarment for his

direct, knowing, participation in securities fraud. Mr.

Calvo received a full evidentiary hearing, with adequate

notice, and was represented by counsel throughout the

proceeding. There is nothing unusual about the case and

there are no federal constitutional issues bearing upon it.

In his report recommending that Mr. Calvo be dis-

barred, the Referee, after a full evidentiary hearing,

found that:

[T]he respondent acted with reckless disregard

for the safety of the investors’ money when he

authorized and participated in the closing as

attorney for the underwriter approximately two

weeks after the deadline.

* * +

Respondent knew that short term loans had

been arranged with several individuals who had

no intention of purchasing stock. * * * The net

result of this was that the company received,

from the offering, approximately $130,000 and

not the $964,000 specified in the pros-

pectus. * * * These loans did not constitute pro-

ceeds of bona fide sales of stock to public

investors, but actually constituted a fraud on

legitimate investors.

* * *

Respondent fraudulently, with others,

extended the offering period beyond the time

specified. He, with others, obtained short term

loans which inflated the number of shares

allegedly sold. The loans were then repaid

almost instantaneously with huge profits to the

lenders. Neither of these events were ever dis-

closed to the investors.

* * *

In March, 1985, prior to the closing on April

22, 1985, Edward W. Bremer, President, director

and principle (sic) siockholder of Electronics

Warehouse was indicted in Maryland on seven-

teen counts of mail fraud. Respondent and the

underwriter were advised about it but failed

and neglected to supply this information to

investors. * * * Authorizing and participating in

the closing without making this disclosure was

reckless and a breach of respondent’s duty to

investors.

[App. L pp. 12-19]

The Florida Supreme Court found that the findings of

the Referee were supported in the record by competent

substantial evidence and disbarred Mr. Calvo.'

The petitioner takes a “shotgun” approach in which

he raises a myriad of alleged constitutional violations,

misconstrues the basis of much of the Referee’s findings

and the Florida Supreme Court’s decision, and fails to

cite anything in the record which would raise a substan-

tial federal question.

I

The petition fails to establish that the constitutional

issues were properly raised below.

An essential requirement for jurisdiction under 28

U.S.C., § 1257 is that a substantial federal question have

been properly raised in the state court proceeding.

1 This Court has held that, with a few exceptions not rele-

vant here, it will not exert its jurisdiction merely to review a

decision of a state court upon a question of fact, and will not

reexamine the state court’s findings and conclusions of fact.

Portland Ry. Co. v. Railroad Commission, 229 U.S. 397 (1913).

Accordingly, Supreme Court Rule 14.1(h) requires that

the petitioner seeking review of a state court decision

specify in the statement of the case:

* * * the stage in the proceedings, both in the

court of first instance and in the appellate

courts, at which the federal questions sought to

be reviewed were raised; the method or manner

of raising them and the way in which they were

passed upon by those courts; and such pertinent

quotation of specific portions of the record or

summary thereof, with specific reference to the

places in the record where the matter

appears * * * as will show that the federal ques-

tion was timely and properly raised so as to give

this Court jurisdiction to review the judgment

on a writ of certiorari.

Mr. Calvo failed to comply with any of the above require-

ments of Rule 14.1(h).

Petitioner's failure to comply with Rule 14.1(h) is

critical because it is well settled that this Court will not

review a final judgment of a state court unless “the

record as a whole shows either expressly or by clear

implication that the federal claim was adequately pre-

sented in the state system.” Board of Directors of Rotary

International v. Rotary Club of Duarte, 481 U.S. 537, 550, 107

S.Ct. 1940, 95 L.Ed.2d 474 (1987).

The Florida Supreme Court opinion makes only pass-

ing reference to a constitutional issue, stating that they

“reject Calvo’s contention that he was denied due process

rights and that he cannot be disciplined under the rules

of ethics in effect in 1985, which have been superseded by

the new Rules Regulating The Florida Bar.” This singular

reference to a constitutional question refers to only one of

Mr. Calvo’s arguments and fails to indicate the nature or

manner in which the argument was raised at the trial

level or the appellate level. Mr. Calvo’s petition fails to

establish that any of his constitutional arguments were

ever properly preserved below. On this basis alone, the

petition should be denied.

Il

The petition fails to establish the existence of any sub-

stantial federal question relating to denial of due pro-

cess.

Under the heading of due process, petitioner asserts

that the regulation under which he was charged was

unduly vague and an unconstitutional ex post facto law,

that he was denied assistance of counsel and adequate

notice, and that he was denied an adequate opportunity

to engage in discovery and introduce evidence. He fails

to provide support in the record for any of these claims.

A. Vagueness

The petition contends that former DR 1-102(A)(6),

Fla. Bar Code of Pro. Resp., which Mr. Calvo was found

to have violated, is too vague to meet constitutional

requirements. The Rule provides that “[a] lawyer shall

not * * * engage in any other conduct that adversely

reflects on his fitness to practice law.” The degree of

specificity that the vagueness standard requires varies

according to the nature of the statute and the need for fair

notice or protection from unequal enforcement. Village of

Hoffman Estates, Inc. v. The Flip Side, 455 U.S. 489, 498, 102

S.Ct. 662, 71 L.Ed.2d 362 (1982). This Court dismissed a

claim of vagueness by a disciplined lawyer in the case of

In re Snyder, 472 U.S. 634, 105 S.Ct. 2874, 86 L.Ed.2d 504

(1985), where the language of the challenged rule was at

least as general as is the rule at issue in this case. The

Snyder case involved Federal Rule of Appellate Procedure

46, which permits an attorney to be suspended or dis-

barred for “conduct unbecoming a member of the bar of

the Court.” In upholding the rule, the Court stated:

The phrase “conduct unbecoming a member

of the bar” must be read in light of the “complex

code of behavior” to which attorneys are sub-

ject. * * * Read in light of the traditional duties

imposed on an attorney, it is clear that “conduct

unbecoming a member of the bar” is conduct

contrary to professional standards that shows an

unfitness to discharge continuing obligations to

clients or the courts, or conduct inimical to the

administration of justice. More specific guidance

is provided by case law, applicable court rules,

and “the iore of the profession,” as embodied in

codes of professional conduct.

Id. at U.S. 645. For purposes of vagueness analysis, there

is no meaningful distinction between “conduct unbecom-

ing a member of the bar” and “conduct that adversely

reflects on his fitness to practice law.” The Florida rule

must also be read in light of the “complex code of behav-

ior to which attorneys are subject” and the case law,

applicable court rules, and “lore of the profession.”

There is an additional important reason, articulated

in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 3039, 41 L.Ed.2d

1033 (1974), that the challenged rules meet vagueness

requirements. In Parker, the Court rejected a vagueness

challenge to Articles 133 and 134 of the Uniform Code of

Military Justice which proscribe “conduct unbecoming an

officer and a gentleman,” and “all disorders and neglects

to the prejudice of good order and discipline in the armed

forces.” As in the case at bar, the petitioner in Parker had

engaged in conduct that was clearly unacceptable. Nev-

ertheless, he argued that the wording of the statute was

unduly vague in general, thus attempting to introduce an

overbreadth doctrine into the vagueness test. In addition

to finding that the provisions, like the rule challenged

here, were defined by a body of authoritative construc-

tion, the Court declined to apply an overbreadth doctrine

to vagueness analysis. Referring to several cases it had

analyzed, the Court stated:

None of them suggests that one who has

received fair warning of the criminality of his

own conduct from the statute in question is

nonetheless entitled to attack it because the lan-

guage would not give similar fair warning with

respect to other conduct which might be within

its broad and literal ambit. One to whose con-

duct a statute clearly applies may not suc-

cessfully challenge it for vagueness.

Id. at U.S. 756.

The challenged provision must not be read in a vac-

uum, but with due consideration of the acts of which the

petitioner has been found guilty. The Referee found that

Mr. Calvo acted with “reckless disregard for the safety of

investors’ money” and that he had participated in a

“fraud on legitimate investors.” Regardless of what other

10

conduct might be included within the scope of the chal-

lenged rule, it is surely clear to any attorney that the

conduct described in the Referee’s findings is not consis-

tent with fitness to practice law.

Petitioner also argues that imposition of discipline |

pursuant to DR 1-102(A)(6) violated the constitutional

prohibition of ex post facto laws.? In the first place, the

prohibition of ex post facto laws applies only to criminal

or penal provisions. Re Sawyer, 124 U.S. 200, 8 S.Ct. 482,

31 L.Ed. 402 (1888); see also Collins v. Youngblood, 497 U.S.

37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Bar disciplinary

provisions are not criminal or penal in nature. They are

designed to ensure that attorneys meet minimum levels

of fitness deemed necessary to adequately perform their

function. Cluiow v. Oklahoma, 700 F.2d 1291, 1297-98 (10th

Cir. 1983), overruled in part on other grounds sub nom.,

Garcia v. Wilson, 731 F.2d 640 (10th Cir. 1984); DeBock v.

State, 512 So. 2d 164 (Fla. 1987); In DeBock, the court

explained:

To strike the unworthy lawyer from the roll is

not to add to the pains anu penalties of the

crime. The examination into character [as in the

examination prior to admission] is renewed; and

the test of fitness is no longer satisfied. For these

reasons courts have repeatedly said that disbar-

ment is not punishment. We reaffirm our hold-

ing . . . that bar disciplinary proceedings are

remedial, and are designed for the protection of

the public and the integrity of the courts. . . . For

2 Mr. Calvo includes this argument under the category of

| due process. He makes another ex post facto argument under a

separate point in the petition which will be dealt with below.

11

these reasons, the vast weight of judicial author-

ity recognizes that bar discipline exists to pro-

tect the public, and not to “punish” the lawyer.

Id. at 166-167 (citation and footnote omitted).

Even if the challenged disciplinary rule were deemed

to be criminal, its application to Mr. Calvo would not

violate the ex post facto prohibition. This Court has

defined an ex post facto law as:

*** one which imposes a punishment for an act

which was not punishable at the time it was

committed; or an additional punishment to that

then prescribed; or changes the rules of evi-

dence by which less or different testimony is

sufficient to convict than was then required; or,

in short, in relation to the offence or its conse-

quences, alters the situation of a party to his

disadvantage;”

Id. at U.S. 45-46.

Mr. Calvo was not disciplined pursuant to an ex post

facto law. The challenged rule was in effect at the time he-

committed the acts for which he was disbarred and there

were no changes in the nature of possible discipline or

the quantum of evidence required. The only change was

that the Florida Supreme Court restructured the bar’s

rules of professional conduct. The commission of fraud

by an attorney was an ethical violation sufficient to result

in disbarment at the time of Mr. Calvo’s actions and has

remained so since. According to petitioner’s untenable

definition of ex post facto, every lawyer who had com-

mitted an infraction was immediately exonerated when

the Florida Supreme Court repealed the old ethical code

and adopted the new one.

12

B. Assistance of Counsel

Mr. Calvo asserts that he was deprived of assistance

of counsel because the Referee excluded Mr. Calvo’s trial

attorney on learning that he was a potential witness. Mr.

Calvo admits that he had retained two attorneys to repre-

sent him at the hearing, and that one of them did do so.

He contends, however, that such counsel was retained to

handle only a particular aspect of the hearing and that he

was “forced to conduct the defense, without any continu-

ance,” despite the fact that he was not prepared to do so.

[Petition, p. 34] Thus, the due process right which he

asserts is no‘ a right to counsel, but a right to a particular

lawyer to handle a particular portion of the hearing. This

Court has never recognized such a right. To the contrary,

the Court has recognized that, even as to the Sixth

Amendment right to counsel, courts have the discretion

to exclude particular lawyers under appropriate circum-

stances, including conflicts of interest. Wheat v. United

States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).

In so holding, the Court stated:

We have further recognized that the purpose of

providing assistance of counsel “is simply to

ensure that criminal defendants receive a fair

trial ” [citation omitted], and that in evaluating

Sixth Amendment claims, “the appropriate

inquiry focuses on the adversarial process, not

on the accused’s relationship with his lawyer as

such.” [citation omitted] Thus, while the right to

select and be represented by one’s preferred

attorney is comprehended by the Sixth Amend-

ment, the essential aim of the Amendment is to

13

guarantee an effective advocate for each crimi-

nal defendant rather than to ensure that a defen-

dant will inexorably be represented by the

lawyer whom he prefers.

Id. at U.S. 159.

With respect to his counsel having to proceed with-

out a continuance, Mr. Calvo fails to cite any record

support for the fact that he requested that the Referee

grant a continuance and was denied it, and that he raised

a federal constitutional issue before the Referee.

C. Notice

Mr. Calvo argues that he was denied his due process

right to receive adequate notice, citing Fuentes v. Shevin,

407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). Fuentes

simply holds that notice and hearing “must be provided

before the deprivation at issue takes effect.” Id. at U.S. 82.

It is undisputed that Mr. Calvo received a full hearing

before his disbarment, and that he received substantial

notice prior to that hearing. The notice which Mr. Calvo

refers to is his failure to receive notice of the filing of a

complaint against him until it was referred to a grievance

committee, and his failure to receive notice of the griev-

ance committee decision until specifications were filed

against him. The Bar’s failure to provide such notices is

completely irrelevant to any federal constitutional right.

Petitioner also complains about the substantial lapse

of time between the grievance committee’s authorization

for the Bar to proceed and the filing of specifications by

the Bar. Mr. Calvo cites no authority for the proposition

that such a delay implicates a federal constitutional right,

A ee ee ew. ee ee

14

and this Court has never recognized a constitutional

“statute of limitations” on the filing of disciplinary pro-

ceedings against lawyers. In addition, the Referee, while

weighing the delay as a mitigating factor in Mr. Calvo’s

favor, found that, “[R]espondent has substantially con-

tributed to the delay and has not demonstrated specific

prejudice resulting from the delay.” [App. I, p. 22] The

only prejudice alleged in the petition is that “potential

witnesses had disappeared or were outside of the Ref-

eree’s jurisdiction.” No record support is cited for the

assertion.

D. Discovery and Evidence

The petitioner complains that he was unable to

obtain certain materials from the Securities and Exchange

Commission, that the Bar failed to provide certain infor-

mation and had lost other information, and that the Ref-

eree made improper rulings regarding the admission of

various items of evidence. Needless to say, every ruling

by a state judge or hearing officer regarding discovery

and admissibility of evidence is not reviewable by this

Court. As with his other points, Mr. Calvo fails to

describe with any detail the nature of the discovery infor-

mation denied him and the evidence ruled upon, and

fails to make a record showing that any federal constitu-

tional issue was implicated and preserved.

15

Ill

The petition fails to establish that Mr. Calvo was denied

equal protection rights.

The petitioner claims that his right to equal protec-

tion was violated by the imposition of costs against him,

by the application of disciplinary standards in his case,

and by reference to his Colombian ancestry. He fails to

establish a basis for granting certiorari as to any one of

these claims.

A. Costs

Mr. Calvo argues that the Florida Supreme Court

applied a different standard to him when it assessed costs

against him than it applied in The Florida Bar v. McCain,

330 So. 2d 712 (Fla. 1976), when it assessed no costs

against the attorney disciplined in that case. Mr. Calvo

concludes, with no effort at substantiation, that the differ-

ence was based upon his membership in a minority class.

Under Florida law, the imposition of costs in a disci-

plinary proceeding is left to the discretion of the referee.

The Florida Bar v. Chilton, 616 So. 2d 449, 451 (Fla. 1993);

The Florida Bar v. Miele, 605 So. 2d 866, 868 (Fla. 1992); The

Florida Bar v. Carr, 574 So. 2d 59 (Fla. 1990). Generally,

Florida law provides that when there is a finding that an

attorney has been found guilty of violating a provision of

the ethical rules, the bar should be awarded its costs. The

Florida Bar v. Davis, 419 So. 2d 325, 328 (Fla. 1982). How-

ever, the referee and the Supreme Court may consider

various circumstances in deciding whether or not to make

such an award. Id. The standard the court considered in

McCain was whether the referee abused his discretion as

16

to the issue of costs. Mr. Calvo cites nothing in the record

to suggest that the Referee or the Florida Supreme Court

assessed costs against him according to a different stan-

dard than they have been assessed against others, and

that if they did do so, it was because of Mr. Calvo’s

national origin.

B. Right to Non-Arbitrary, Cruel or Unusual Pun-

ishment

Mr. Calvo claims that the imposition of discipline on

him constitutes cruel and unusual punishment, violative

of the Eighth Amendment of the United States Constitu-

tion. Inasmuch as the discipline of disbarment is not a

punishment, the Eighth Amendment has no application.

Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d

711 (1977); Donaldson v. Read Magazine, Inc., 333 U.S. 178,

65 S.Ct. 591, 92 L.Ed.2d 628 (1948).

Even if such discipline were considered punitive, Mr.

Calvo has failed to establish a sufficient federal question

or conflict with this Court or other courts as applied to

him. The only specific act mentioned by Mr. Calvo as

cruel and unusual is that the discipline of disbarment was

unfair as a “multiple punishment,” apparently in light of

the SEC’s independent imposition of sanctions against

him. Nothing in the petition explains how the SEC and

Florida Bar actions constitute multiple punishment in

violation of the United States Constitution. The two pro-

ceedings served entirely separate purposes, neither of

which is punitive in nature. Even if both proceedings had

been criminal, the United States Constitution permits sep-

arate punishment for the same acts if they violate both

17

federal and state laws. Heath v. Alabama, 474 U.S. 82, 106

S.Ct. 433, 88 L.Ed.2d 387 (1985); United States v. Wheeler,

435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978).

C. Prejudice Based on National Origin

Mr. Calvo seizes upon a single reference in the Ref-

eree’s findings to his nation of birth as evidence that the

entire proceeding was corrupted by prejudice. The refer-

ence is located in a short paragraph giving Mr. Calvo’s

biographical background, followed by a chronology of his

education and professional experience. [App. I, p. 20]

There is no other reference to the petitioner’s national

background in the Referee’s report and Mr. Calvo cites no

reference anywhere else in the record. At no point in the

Referee’s findings or recommendations was his place of

birth discussed as either an aggravating or mitigating

circumstance for purposes of imposition of discipline. Mr.

Calvo does not offer any record evidence to support the

bald allegation that his national origin had any bearing

upon the proceedings or the disbarment.

IV

The petition fails to establish that the disbarment of

Mr. Calvo constituted an application of an ex post facto

law.

Petitioner argues that he was subjected to an ex post

facto law because the Referee and the Florida Supreme

Court supposedly relied upon expert testimony which

interpreted federal securities laws differently than they

18

had been interpreted in a continuing legal education sem-

inar sponsored by the Bar.

Petitioner’s point is misplaced for three reasons.

First, as noted above, the ex post facto prohibition applies

only to criminal or penal provisions, which bar disciplin-

ary measures are not. Second, Mr. Calvo’s entire argu-

ment is premised upon a continuing legal education

seminar outline that was prepared by another practicing

attorney. The outline is not a legislative enactment such

that a subsequent Supreme Court decision creates an

unforeseeable judicial enlargement of a penal statute. The

Florida Bar’s complaint against Mr. Calvo alleged that he

violated DR 1-102(A)(1), and DR 1-102(A)(6). Those rules

provide that it is an ethical violation for an attorney to

violate a disciplinary rule or to engage in any conduct

that adversely reflects on his fitness to practice law. It is

these rules under which the Supreme Court issued its

discipline, not an attorney’s outline discussing issues of

securities law practice. Third, as discussed more fully

below, neither the Referee’s findings nor the Florida

Supreme Court’s decision were based upon federal secu-

rities statutes that were allegedly interpreted in the con-

tinuing legal education outline.

Vv

The decision to disbar the petitioner was not based

upon an interpretation of federal law.

Petitioner’s final point rests upon his assertion that

his disbarment is based upon a ruling that “attorneys

representing underwriters are, as a consequence of uni-

dentified federal rules, ‘experts’ for purposes of liability

19

under the Securities Act of 1933, as amended”, and that

the Florida Supreme Court opinion stands for the propo-

sition that “attorneys representing underwriters in feder-

ally registered securities offerings are jointly responsible,

with the issuer and the underwriter, for the sale of

offered securities.” [Petition, pp. 62-63] It is not necessary

for this Court to address the issue of the proper construc-

tion of the federal statutes to which Mr. Calvo refers

because it is clear that his disbarment was not based

upon any interpretation of federal law.

The only reference to federal securities laws in the

Florida Supreme Court opinion is in its discussion of Mr.

Calvo’s argument that the Referee erred when he took

notice of the SEC and federal cases arising out of the

same conduct being considered by the Referee. The Court

concluded:

We agree with Calvo that SEC disciplinary pro-

ceedings are subjected to a different standard of

review than are Bar discipline proceeding, but

we find that this difference goes only to the

weight to be accorded the information in a Flor-

ida disciplinary proceeding, not to its admis-

sibility.

App. I, pp. 4-5.

The Florida Supreme Court disbarred Calvo not for a

violation of federal rules or statutes, but for engaging in

conduct “that adversely reflects on his fitness to practice

law.” The Referee discussed Mr. Calvo’s conduct in detail

and found that it adversely reflected upon his fitness to

practice law. All of the referee’s findings were made

without reference to the federal law allegedly misin-

terpreted by the Referee and the Florida Supreme Court.

20

The Supreme Court concluded that the Referee’s findings

were supported by competent, substantial evidence and

disbarred Mr. Calvo for violation of the Florida disciplin-

ary rules, not federal law.

This Court’s only power over state judgments is to

“correct them to the extent that they incorrectly adjudge

federal rights.” Herb v. Pitcairn, 324 U.S. 117, 125, 69 S.Ct.

459, 89 L.Ed. 89 (1945). Therefore, if a state court decision

rests on independent and adequate state grounds, the

Court lacks jurisdiction to review the case or claim. Enter-

prise Irrigation District v. Farmers Mutual Canal Co., 243

U.S. 157, 164 (1917). As Justice Brennan has stated, these

judgments “not only cannot be overturned by, indeed are

not even reviewable by, the Supreme Court of the United

States. We are utterly without jurisdiction to review such

cases.” Justice Brennan, State Constitutions and the Protec-

tions of Individual Rights, 90 Harv. L. Rev. 489, 501 (1977).

This Court has stated that jurisdiction exists “when it is

not clear from the opinion itself that the state court relied

upon an adequate and independent state ground and

when it fairly appears that the state court rested its

decision primarily on federal law. Michigan v. Long, 463

U.S. 1032, 1042 (1983). Here, the language of the Florida

Supreme Court opinion clearly shows that its decision to

disbar Calvo was based on conduct which violated Flor-

ida standards of fitness to practice, not on any particular

violation of federal law or rule.

21

vi

The Court should adhere to its policy of extending

considerable deference to states in the administration of

attorney discipline.

This Court has noted that a state has “an extremely

important interest in maintaining and assuring the pro-

fessional conduct of the attorneys it licenses for the pro-

tection of the public, the purification of the bar and the

prevention of a re-occurrence.” Middlesex Ethics Committee

v. Garden State Bar Association, 457 U.S. 423, 434 (1981).

Justice Brennan, concurring in the Middlesex judgment,

stated that, “[T]he traditional and primary responsibility

of state courts for establishing and enforcing standards

for members of their bars and the quasi-criminal nature

of bar disciplinary proceedings [citation omitted] call for

exceptional deference by the federal courts.” Id. at US.

438, Brennan, J. concurring. This “exceptional deference”

has been translated by the Court into rules for reviewing

state court decisions regarding attorney admissions and

discipline. In Theard v. United States, 254 U.S. 278, 281

(1956), the Court stated:

It is not for this Court, except within the narrow

limits for review open to this Court, as recently

canvassed in Konigsberg v. State Bar of California,

353 U.S. 252, and Schware v. Board of Bar Exam-

iners, 353 U.S. 232, to sit in judgment on [state]

disbarments * **.

In Schware v. Board of Bar Examiners, 353 U.S. 232, 239

(1956), the Court held that the standard of review of a

state supreme court decision not to admit a bar candidate

due to a finding of lack of moral character is “whether

the [State Supreme Court] on the record before us could

ae

j

.

22

reasonably find that he had not shown good moral char-

acter.” The Court applied a similar deferential test in

Konigsberg v. State Bar of California, 353 U.S. 252, 262

(1956), stating the question as “[dJoes the evidence in the

record support any reasonable doubts about Konigsberg’s

good character or his loyalty to the Governments of State

and Nation?” Applying the cited standard to the case at

hand, it becomes clear that the Florida Supreme Court

“could reasonably find” that Calvo violated DR

1-102(A)(6) by engaging in conduct that adversely reflects

on his fitness to practice law.

+

CONCLUSION

The Court is respectfully urged to deny the petition

for certiorari.

GREENBERG, TRAURIG, HOFFMAN,

Lirorr, RosEN & QUENTEL

101 East College Avenue

Post Office Drawer 1838

Tallahassee, Florida 32301

(904) 222-6891

Barry Scott RICHARD

Florida Bar No. 0105599

Attorney for Respondent