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Ex parte Walden

United States District Court, M.D. Alabama, Northern Division

April 3, 2017

Ex Parte Gatewood A. Walden, Petitioner.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         The Alabama State Bar disbarred Gatewood A. Walden from the practice of law in the State of Alabama. In the Matter of Gatewood Andrew Walden, an Attorney at Law, Alabama State Bar No. 09-1040(A) (filed June 14, 2012), aff'd, No. 1111313 (Ala. Feb. 22, 2013). (Doc. # 36-2, at 10-30.) Based upon the state disbarment and after affording Mr. Walden notice and an opportunity to be heard, this court disbarred Mr. Walden from membership in the Bar of this Court. (Doc. # 11.) On appeal, the Eleventh Circuit reversed, holding that the district court failed to conduct an intrinsic inquiry of the record of the state disbarment proceedings as required by Selling v. Radford, 243 U.S. 46 (1917). It remanded this case with instructions to the district court. (Doc. # 25, at 5 (sealed); see also Doc. # 26 (Order entering the judgment as mandate).)

         After the remand, this court referred the matter to the Magistrate Judge, who performed an intrinsic review to assess whether any of the Selling infirmities infected the state disbarment proceedings. Finding no infirmities, the Magistrate Judge entered a Recommendation advocating that the district court disbar Mr. Walden from the practice of law in this court. (Doc. # 51.) Mr. Walden, who is proceeding pro se, has objected to the Recommendation. (Doc. # 52.)

         The court has conducted an independent and de novo review of the entire record, which includes four volumes from the state disbarment proceedings and the transcript of the hearing before the Disciplinary Board. See 28 U.S.C. § 636(b). That review confirms that there is no error in the Recommendation, save for one factual inaccuracy that is inconsequential to the ultimate recommended legal disposition.[1] Mr. Walden's objections are due to be overruled, and the Recommendation is due to be adopted.

         II. DISCUSSION

         Selling establishes that a federal court should give effect to a state court disbarment

unless, from an intrinsic consideration of the state record, one or all of the following conditions should appear: 1. That the state procedure, from want of notice or opportunity to be 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 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 so to do.

243 U.S. at 51. Mr. Walden objects to the Magistrate Judge's conclusions as to each of the three Selling infirmities. The objections are addressed in conjunction with the discussion of the Magistrate Judge's determinations.[2]

         A. Whether the State Disbarment Proceeding Lacked Due Process

         The Magistrate Judge concluded that Mr. Walden received due process because he had notice of the charges and received a hearing at which he testified, presented evidence (including the testimony of numerous character witnesses), and made arguments on his behalf. The Magistrate Judge also addressed the discrepancy between the oral decision of the Disciplinary Board to suspend Mr. Walden for six months and the Disciplinary Board's subsequent written order of disbarment. He opined that the deviation in the sentence did not rise to the level of a due process violation because Mr. Walden “had the opportunity to raise this claim” to the Alabama Supreme Court on appeal from the Alabama State Bar's order of disbarment. (Doc. # 51, at 22 (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (“The fundamental requisite of due process of law is the opportunity to be heard.” (citation omitted)).

         Mr. Walden focuses his due-process argument on the penalty phase of the state disbarment proceedings. He contends that due process required that he receive additional notice and another hearing prior to the Disciplinary Board's imposition of a harsher punishment than the one orally pronounced at the hearing. He quips that “[t]he counter-argument that [he] could have raised the issue before the state appellate court is unpersuasive, even flippant.” (Doc. # 52, at 13.) But he cites no authority, and this court did not uncover any authority that breathed life into the argument. Although not on all fours, the body of Eleventh Circuit law governing the due process rights of a public employee whose termination requires cause does not support Mr. Walden's argument. See McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (“[A] procedural due process violation is not complete unless and until the State fails to provide due process. In other words, the state may cure a procedural deprivation by providing a later procedural remedy; only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation actionable under section 1983 arise.” (internal citation omitted)). This court need not decide whether a disbarred attorney and a terminated public employee have analogous procedural due process claims. Cf. Dailey v. Vought Aircraft Co., 141 F.3d 224, 230-31 (5th Cir. 1998) (observing that the comparison is inept and holding that the disbarred attorney's appeal “did not repair the district court's violation of her right to due process”). This is because Mr. Walden has not shown that the notice he received prior to his disbarment was constitutionally deficient.

         The Alabama State Bar served Mr. Walden with a summons and formal charges alleging violations of specific rules of the Alabama Rules of Professional Conduct and specifying the conduct underlying those charges. (Doc. # 36-1, at 7- 12.) The summons provided that its issuance was in connection with proceedings under the Alabama Rules of Disciplinary Procedure (Doc. # 36-1), and those rules put Mr. Walden on notice that disbarment was appropriate discipline for a violation of the Alabama Rules of Professional Conduct.[3] See Ala. Rules Prof'l Conduct 22, 2(b); see also Matter of Calvo, 88 F.3d 962, 967 (11th Cir. 1996) (rejecting disbarred attorney's argument that he received inadequate notice of his potential disbarment if convicted of the Florida Bar's charges against him; the attorney “should have known” that the state's published standards for sanctioning attorneys approved disbarment as a penalty for the charged conduct). Moreover, the Disciplinary Board provided Mr. Walden a hearing to contest the formal charges and “advised that he [was] entitled to be represented at [the] hearing by counsel, to cross-examine witnesses, and to present evidence in his own behalf.” (Doc. # 36-5, at 113 (Disciplinary Board's Order Setting Date and Place for Hearing).) The transcript from that hearing further reflects that, at the penalty phase, prior to the oral pronouncement of punishment, Mr. Walden exercised the opportunity to be heard on the appropriate discipline and to rebut the prosecuting attorney's recommendation of disbarment. (Doc. # 22, at 161-74.) The Alabama State Bar afforded Mr. Walden all the process that he was due by providing him specific notice of the grounds for imposing discipline and affording him a hearing. In short, Mr. Walden has not demonstrated that the process he received prior to the imposition of discipline was inadequate under the Due Process Clause.

         B. Whether There Was an Infirmity of Proof that Mr. Walden Lacked FairPrivate ...


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