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Ninth Circuit Won’t Reinstate Yagman As Member of Bar
Smith, Nelson Say He Is Disqualified by New York Disbarment Though Reinstated as Member of State Bar of California; Berzon Dissents, Says No Such Rule Exists That Majority Cites
By a MetNews Staff Writer
Stephen Yagman, a controversial civil rights attorney, remains excluded from practice before the Ninth U.S. Circuit Court of Appeals, under a 2-1 decision by a panel on Friday.
In a per curiam decision, Circuit Judges Milan D. Smith Jr. and Ryan D. Nelson said that Yagman is not eligible for reinstatement to the bar of the Ninth Circuit because, even though he has been returned to the roll of lawyers in California, he is still disbarred in the state of New York.
Yagman, best known for his ongoing feud with District Court Judge Manuel Real of the Central District of California (now deceased), was disbarred in California in 2010 based on his 2007 conviction in the U.S. District Court for the Central District of California on 17 counts of money laundering and one count each of attempting to evade federal income taxes and bankruptcy fraud. The disbarment by the Ninth Circuit was reciprocal.
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STEPHEN YAGMAN |
Girardi Case
Smith and Nelson cited the Ninth Circuit’s 2010 decision in In re Girardi. There, the court reprimanded Thomas V. Girardi and imposed six-month suspensions on attorneys Walter J. Lack and Paul A. Traina, saying that Lack and Traina, following the period of suspension, each was to file a petition for reinstatement that was to “include evidence that he is in good standing, with no discipline pending, in all courts and bars to which he is admitted.”
The judges wrote:
“We now hold mat an attorney cannot justify reinstatement while he or she is currently suspended or disbarred in another jurisdiction—provided that the other jurisdiction had independent, non-reciprocal reasons for imposing discipline.
“The New York State Bar disbarred Yagman in January 2009. more than eleven months before California disbarred him. Importantly, New York’s disbarment of Yagman was not reciprocally imposed. New York independently determined that Yagman’s federal felony conviction constituted arounds for automatic disbarment under its precedent.”
Accordingly, the judges said, Yagman cannot meet the standard set forth in Girardi of showing that no disbarment order is in effect.
They noted the suggestion of an amicus that deference should be accorded the State Bar of California’s determination, and commented:
“[W]e temper the extent of our deference by observing that after the State Bar of California reached its decision in this case, the California State Auditor published a report finding that the California State Bar’s weak enforcement policies had long allowed patterns of serious misconduct, especially by prominent attorneys, to go unpunished for extended periods of tune, and allowed for failures in tracking staffers’ conflicts of interest.”
Berzon’s Dissent
Berzon said in her dissent that no rule exists that precludes readmittance of a lawyer to practice in federal courts if a state disbarment order remains in effect. The condition of reinstatement imposed on Lack and Traina of showing that no disbarment order was in effect in any jurisdiction, she observed, was personal to them, remarking:
“[W]e did not cite any rule requiring us to impose the condition, nor did we state or imply that every attorney petitioning for reinstatement must make the same showing.”
She declared:
“As to the New York disbarment, we have no indication that Yagman has applied for reinstatement in New York. He has represented to us that he is 77 years old and does not intend to practice law in New York again. Although it would be within our discretion to require Yagman to demonstrate reinstatement in New York before being reinstated to the bar of our court, in these circumstances I see no reason to do so.
“Imposing the requirement that Yagman trigger plenary reinstatement proceedings in New York would be a pointless burden. New York’s reason for the disbarment was the same as California’s—the conviction itself—not any additional reason. As Yagman practiced principally in California. California was in a position to review Yagman’s legal career, consider the views of California lawyers and judges, and review Yagman’s rehabilitation efforts in California. New York is unlikely to be able to develop any additional information, and it has little interest in doing so, as Yagman does not intend to practice there.”
The case is In re Yagman, 07-80153.
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