In Re: Disciplinary Action of Stephen Woodruff

Filing 55

DECISION and ORDER. Disciplinary Case: For Publication. Signed by Chief Judge Ramona V. Manglona, Designated Judge Roberto C. Naraja, and Designated Judge Teresa Kim-Tenorio on 09/04/2018. (FPA)

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FILED Clerk District Court 1 SEP —4 2018 2 3 for the Norther r a Islands By (Deputy C rk) - 4 5 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN MARIANA ISLANDS 6 7 )) 8 In Re: 9 DISCIPLINARY CASE: FOR PUBLICATION )) 1:13-MC-00061 STEPHEN C. WOODRUFF, 10 Respondent. 11 DECISION AND ORDER 12 13 14 ____________________________________ 15 16 INTRODUCTION AND PROCEDURAL BACKGROUND 17 On May 23, 2016, a panel comprising the three undersigned judges held a merits hearing 18 in the above-captioned disciplinary case involving Respondent Stephen C. Woodruff, a member 19 of this Court’s bar. Present were Prosecuting Counsel Rexford C. Kosack and Respondent, who 20 21 appeared pro se. (Minute entry, ECF No. 45.) The Complaint for Ethical Violations (ECF No. 22 10) charged violations of Rules 1.1 and 1.3 of the Model Rules of Professional Conduct 23 (“MPRC”), made applicable in this Court by Local Disciplinary Rule (“LDR”) 2(h), for conduct 24 during his representation of Murugesan S. Subbaiah on appeal of a civil judgment against him 25 to the Court of Appeals for the Ninth Circuit. The Complaint alleged that Respondent missed 26 27 the deadline for filing his client’s opening brief without having requested an extension of time, 28 and failed to follow up effectively on transcript requests with the district court reporter. Three 1 months after the filing deadline had passed, appellee filed a motion to dismiss. Respondent 2 failed to file a response to the motion or to request an extension of time. When the Ninth Circuit 3 dismissed for failure to prosecute, Subbaiah himself filed a motion to reinstate the case. The Ninth Circuit denied it without prejudice and gave appellant leave to refile it within 28 days 5 6 along with an opening brief. Respondent, who had never withdrawn from the representation, did not refile the motion or file an opening brief. Three years later, the Circuit Clerk informed 8 Subbaiah that the case would remain closed because of the failure to file an opening brief. 9 10 The panel took evidence and heard from witnesses, including the complainant. Subbaiah testified that he had paid Respondent a total of $1,850 to pursue the appeal — $850 in 11 12 installments and a lump sum payment of $1,000 from a settlement. After hearing the arguments 13 of Prosecuting Counsel and Respondent, the panel found that Prosecuting Counsel had proved 14 by clear and convincing evidence the facts alleged, and that Respondent had violated his duties 15 of competence and diligence as charged. The panel then set a separate hearing for the penalty 16 phase of the proceeding and invited briefs from the parties. 17 18 On May 31, 2016, Prosecuting Counsel filed a Disposition Memorandum: Factors in 19 Aggravation (ECF No. 46), and two exhibits, and Respondent filed a Statement Re: Mitigating 20 Circumstances (ECF No. 47). Prosecuting Counsel urged the panel to consider more than a 21 dozen other allegations of similar ethical misconduct by Respondent in cases before this and 22 23 other courts, especially nine disciplinary complaints that formed the basis for Respondent’s 24 disbarment in the Commonwealth of the Northern Mariana Islands. Respondent asserted that 25 Subbaiah suffered little or no material harm, that Subbaiah’s own conduct was not beyond 26 reproach, that during the period of the representation he was experiencing serious domestic 27 28 2 1 difficulties leading to a marital separation, and that over a long legal career in the CNMI he has 2 generally provided competent and diligent representation to clients. 3 On June 14, 2016, the parties filed responses: Response to Prosecuting Counsel’s Disposition Memorandum (ECF No. 48), Declaration of Stephen C. Woodruff (ECF No. 49); 5 6 Respondent’s three volumes of exhibits (ECF Nos. 50, 51, and 52); and Prosecuting Counsel’s ~ Reply Memorandum (ECF No. 53). Respondent objected to consideration of any of the 8 disciplinary charges that formed the basis of his CNMI disbarment, on grounds that the CNMI courts procedurally defaulted him, he did not have the opportunity to confront the evidence 10 against him, and he was denied due process. Prosecuting Counsel disputed that the client bore 11 12 any responsibility for the failure of the appeal, and stressed that the client was materially 13 harmed at least in the loss of the $1,850 he paid Respondent to pursue the appeal. 14 On June 15, 2016, the panel held a sanctions hearing. The panel heard a recording of 15 Subbaiah’s testimony as to the $1,850 loss, and then heard argument from both counsel. The 16 panel indicated that it was inclined not to consider evidence from the CNMI court cases that 17 18 formed the basis of Respondent’s disbarment and would restrict itself to the record from 19 representations in this District and the Ninth Circuit. After argument from Respondent and 20 Prosecuting Counsel, the Court took the matter under advisement. 21 Since then, more than two years have passed, and only now is the Court issuing its 22 23 decision and order. The Court is mindful of the irony of judging one of its own lawyers for 24 failure to attend promptly to his client’s matters when it has failed to promptly tend to this one. 25 That failure is a disservice to Respondent, Complainant, and Prosecuting Counsel, who worked 26 long hours pro bono on the case. In the meantime, other disciplinary cases involving 27 Respondent have made their way through the Commonwealth and federal courts. It is against 28 3 1 that background that this panel must decide how best to fairly bring the instant matter to a 2 conclusion. 3 II. RECIPROCAL DISCIPLINE CASES On June 7, 2013, Respondent was disbarred by the Commonwealth Superior Court. See 5 6 Disciplinary Action: Disbarment, In the Matter of Woodruff Civil Case No. 13-0017 (Commw. ~ Super. Ct. June 7, 2013), available at 8 0017.pdf. The disbarment order was affirmed by the Commonwealth Supreme Court on December 9, 2015. In the Matter of Woodruff 2013-SCC-0030-CIV, 2015 MP 11, 2015 WL 10 8488972, 2015 N. Mar. I. LEXIS 12 (N. Mar. I. 2015). On December 24, 2015, this Court 11 12 issued to Respondent a Notice of Intent to Impose Reciprocal Discipline and Order to Show 13 Cause (Case No. 13-CV-00004, ECF No. 75 ).‘ On January 22, 2016, the Commonwealth 14 Supreme Court denied Respondent’s petition for rehearing and ordered the mandate to issue on 15 January 26. (No. 13-CV-00004, ECF No. 87-3.) On February 10, Respondent filed an Update 16 (ECF No. 87) notifying the Court of his intention to petition for certiorari to the United States 17 18 Supreme Court. 19 When the Court became aware that no petition had ever been filed, it lifted its stay on 20 reciprocal discipline proceedings (Order, Dec. 8, 2016, ECF No. 88). After a hearing, the Court 21 found that reciprocal discipline was warranted and, under LDR 17, disbarred Respondent from 22 23 the practice of law in this district (Order Imposing Reciprocal Discipline of Disbarment, Mar. 9, 24 2017, ECF No. 104). After an independent review of the Commonwealth record, the Court 25 found that in the CNMI disciplinary proceedings deserved a presumption of correctness because 26 (1) respondent was not deprived of due process, (2) there was sufficient proof of misconduct, 27 28 The reciprocal discipline case was assigned to Hon. Frances Tydingco-Gatewood, Chief Judge, District of Guam. 4 1 and (3) no grave injustice would result from the imposition of reciprocal discipline. See Selling 2 v. Kramer, 243 U.S. 46, 50—51 (1917); Inre Kramer, 193 F.3d 1131, 1132 (9th Cir. 1999). 3 Also in 2017, the Ninth Circuit was considering whether to reciprocate the discipline imposed by the CNMI courts and disbar Woodruff from federal appellate practice. On October 5 6 13, 2017, the Ninth Circuit’s Appellate Commissioner issued a report finding that the CNMI ~ disciplinary proceedings against Woodruff did not offer Woodruff fair notice and an 8 opportunity to be heard, that evidence was improperly considered, and that disbarment would do a grave injustice. (Report and Recommendation, No. 13-80077, Oct. 13, 2017, docketed in 10 D. N. Mar. I. No. 13-MC-00004, ECF No. 116-1.) Although he found that none of the Selling 11 12 factors had been met, the Appellate Commissioner recognized that Woodruff had a history of 13 difficulty meeting deadlines in Ninth Circuit cases, sometimes with the result that an appeal was 14 dismissed. He recommended 18 months’ probation, allowing Woodruff to complete pending 15 appeals but not take on new appeals during the probationary period. 16 On October 26, Woodruff submitted the Appellate Commissioner’s report as an exhibit 17 18 supporting a motion for relief from this Court’s judgment of reciprocal discipline. In the motion 19 (ECF No. 116), he asked the Court to rescind his disbarment and impose the same discipline as 20 the Ninth Circuit. While that motion was pending, on November 15, the Ninth Circuit issued an 21 order adopting the Report and Recommendation in all respects, except for the prohibition on 22 23 bringing new cases, which the Ninth Circuit declined to impose. (Order, Nov. 15, 2017, No. 13- 24 80077, docketed D. N. Mar. I. No. 13-MC-00004, ECF No. 117.) On March 28, 2018, the Court 25 heard the motion for relief from judgment and granted it in part, suspending Woodruff for one 26 year (until March 28, 2019), permitting him to resume representation in cases that were pending 27 at the time of his disbarment but forbidding him from taking new cases. (Order Modifying 28 5 1 Discipline, ECF No. 123.) The Court noted that it had a “firm conviction that reciprocal 2 discipline was warranted” but deferred to the Ninth Circuit’s determination that CNMI 3 disciplinary proceedings did not comport with due process and therefore modified discipline. 4 The Court gave Woodruff leave to apply for reinstatement after six months and one day, i.e., no 5 6 8 earlier than September 29, 2018. III. DISCUSSION In light of the Ninth Circuit’s determination in its own reciprocal discipline case, the Court does not consider as aggravating factors the nine disciplinary charges on which the CNMI 10 disbarment was based. Nor will it consider ten other complaints received by the CNMI Bar 11 12 Disciplinary Committee and submitted by Prosecuting Counsel (see Dispo. Memo., ECF No. 13 46, p. 14 et seq.). The Court cannot ignore, however, a series of cases in this district where the 14 previous Chief Judge issued orders taking note of Respondent’s deficient performance. In 15 Prematilaka v. Camacho, No. 05-CV-00045, the Court dismissed a Title VII complaint with 16 prejudice when Respondent, representing the plaintiff~, failed to prosecute the case for more than 17 18 seven months. (Order, Aug. 10, 2006, ECF No. 3.) Failure to serve defendants or ask for 19 additional time to effect service eventuated in a dismissal in Santos v. Winner Corporation. 20 (Order, No. 08-CV-00023, Mar. 27, 2009, ECF No. 5.) In Feliciano v. Eastern Hope 21 Corporation, No. 08-CV-0000l, the Court dismissed a case with prejudice when Respondent 22 23 failed to show up for trial. (Order, Dec. 1, 2008, ECF No. 17.) The Court noted a history of 24 missed deadlines by Respondent and directed respondent “to notify his client in writing.. that 25 he may have a cause of action against Mr. Woodruff for failure to meet minimum professional 26 standards in client representation. 27 who observed this tendency to miss deadlines and court dates. The Chief Judge of the District of . . .“ (Id.) It is not only the former Chief Judge of this District 28 6 1 Guam, sitting here by designation, noted that Respondent had missed crucial deadlines in his 2 own reciprocal discipline case and offered up weak excuses for doing so. She wrote, 3 “Respondent’s failure to attend to his own disciplinary cases mirrors the misconduct alleged in [the CNMI’s disciplinary complaint].” (Order, No. 13-CV-00004, Mar. 9, 2017, ECF No. 104, 5 6 at 8.) The panel draws attention to this related conduct only to show why it does not give 8 much credit to Respondent’s protestations that he has a history of managing his case load ~ competently and diligently. What the panel saw in the evidence was an attorney who, for 10 whatever reasons, was taking on more than he could handle, not just for a short period of acute 11 12 stress but over the course of many years. 13 IV. 14 Under LDR 3, attorney discipline in this District may consist of disbarment, suspension 15 by a period of up to five years, public censure, or private reprimand. Were it still 2016, the 16 DISCIPLINARY ACTION Court would likely impose disbarment or a period of suspension starting 30 days from now, 17 18 pursuant to LDR 17(c). Much time has passed, however. The Court recognizes that it would be 19 unfair to make an attorney start serving a term of discipline in late 2018 that, but for the Court’s 20 inaction, might have already ended. For this reason, the Court hereby imposes on Respondent 21 the same discipline that was imposed in Case No. 13-MC-00004: Respondent is suspended from 22 23 practice in this District for a period of one year. The suspension shall run concurrently with the 24 suspension in No. 13-MC-00004, i.e., from March 28, 2018, the date of the Order Modifying 25 Discipline (ECF No. 123). Respondent may continue representing clients in any open cases, 26 which the Court understands to be only the plaintiff in Ramsey v. Muna, No. 14-CV-00021. He 27 is not permitted to enter appearances in new cases during the period of suspension. Pursuant to 28 7 1 2 3 6 8 LDR 18(b), he may apply for reinstatement after the expiration of at least one-half of the period of suspension. SO ORDERED this 4th day of September, 2018. Ri ‘.na V. M~~~1ona Chj dge Rob~rtoC. _ 9 10 11 T~sa Kim-Tenorio I esignated Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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