Jeff Dickstein-- Contempt Charge?

[wserra]

What Dan said.

[The Observer]

BNA Daily Tax Report is reporting that the 11th Circuit issued an unpublished opinion on August 9th affirming the finding of contempt against Dickstein.

[LPC]

Here's a copy of the 11th Circuit opinion.

[LPC]

The heart of the case is on page 13 and footnote 8:

Dickstein rather artfully contends that he did not refuse to represent the Hirmers, he just submitted the issue of continued representation for the district court’s determination. If the district court had refused his request, he would have continued to represent the Hirmers.[8] The problem for Dickstein is that the district court’s September 16 verbal order and September 23 Standing Order did not order him to continue representing the Hirmers. Rather, these two orders explicitly and clearly prohibited him from filing a motion to withdraw on the basis of nonpayment of fees. Thus, the deliberate act of filing the motion to withdraw on that precise basis was a willful violation of the district court’s orders.

[Footnote 8] As the district court found, this claim is rather disingenuous given that, when the district court did deny Dickstein’s request to withdraw, he filed a motion for reconsideration in which he stated he was “unwilling” to continue representing the Hirmers, and then, during the hearing on the motion for reconsideration, made it clear by his tone that he had no intention of continuing his representation regardless of what the district court ruled.

[LPC]

Also interesting:

Dickstein’s argument that his motion to withdraw was based on issues other than lack of payment is unpersuasive. Dickstein’s motion to withdraw made statements about Dickstein’s severe financial straits, which he claimed were caused by his continued representation of the Hirmers. However, the motion to withdraw relied explicitly and solely on the Hirmers’s failure to pay him for past services and inability to pay for services to be rendered in the future as the basis for withdrawing. The motion to withdraw did not mention, much less argue, that Dickstein was complying with any ethical obligations in seeking to withdraw. Dickstein did not raise these other issues until his motion for reconsideration, after
his motion to withdraw was denied.[9]

Additionally, the district court did not believe Dickstein’s testimony that he was in dire financial straits at the time he filed his motion to withdraw. In support of its finding, the district court emphasized that there was no other evidence to support Dickstein’s claim, Dickstein made no effort to bring these other issues to the court’s attention sooner, and Dickstein filed his motion to withdraw ten days after he asked the Hirmers how they were going to pay for his continued representation and they did not respond. The district court found that Dickstein’s other reasons were a pretext for the real reason—the Hirmers’s failure to pay Dickstein’s fees. Credibility determinations are generally the province of the fact finder, and in the case of a bench trial, the fact finder is the district court. See United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). Dickstein has not given us a reason to disturb the district court’s credibility finding. Moreover, Dickstein’s discredited testimony is substantive evidence of his guilt. See United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995).

[Footnote 9] Dickstein devotes much of his appeal brief to discussing various ethical rules governing when lawyers in California or Florida may or must withdraw from representation. However, Dickstein did not cite any of these rules (or the circumstances underpinning them) as the basis for his motion to withdraw, and the district court found that Dickstein was not motivated by these ethical rules when he filed his motion to withdraw.

[LPC]

The website of the State Bar of California shows that a notice was filed on 4/22/11 that Dickstein had been convicted of a crime "which may or may not involve moral turpitude or other misconduct warranting discipline." The document also states that "The State Bar is monitoring Respondent’s appeal filed on 10/29/10."

Dickstein was placed on inactive status on 6/24/2011, and the explanation of "inactive" describes it as a voluntary status.

[Famspear]

On November 3, 2012, Dickstein's status with the California Bar was changed from "inactive" to "Not Eligible To Practice Law."

http://members.calbar.ca.gov/fal/Member/Detail/70638

Regarding Dickstein's new status, the web site states:

There are several reasons that may result in this status, including suspension, involuntary transfer to inactive status and failure to pay mandatory State Bar fees.

EDIT: The California Bar does show a "pending" disciplinary case against Dickstein, number 10-C-07932. I see no further details on that.

[fortinbras]

Dickstein is evidently being disbarred (or has already been disbarred) notwithstanding his attempt to resign from the bar rather than go through the grinder. Most states have laws or regs that prevent a lawyer who already has pending discipline from quitting the bar to avoid the punishment.

JEFFREY A. DICKSTEIN, Plaintiff,
v.
STATE BAR OF CALIFORNIA, et al., Defendants.

No. C-12-4676 MMC

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

2012 WL 6553973
2012 u.s. dist. LEXIS 177560

December 14, 2012, Decided
December 14, 2012, Filed

PRIOR HISTORY: Dickstein v. State Bar of Cal., 2012 WL 4933277, 2012 u.s. dist. LEXIS 148993 (N.D. Cal., Oct. 16, 2012)

COUNSEL: Jeffrey Alan Dickstein, Plaintiff, Pro se, Tulsa, OK.
For State Bar of California, a public corporation, William Todd, in his individual and official capacity, Charles A. Murray, in his individual and official capacity, Joseph R. Carlucci, in his individual and official capacity, Jayne Kim, in her individual and official capacity, Donald F. Miles, in his individual and official capacity, Richard A. Platel, in his individual and official capacity, Richard A. Honn, in his individual and official capacity, Patrice E. McElroy, in her individual and official capacity, Lucy Armendariz, in her individual & official capacity, Catherine D. Purcell, in her individual & official capacity, Judith A. Epstein, Joann M. Remke, in her individual and official capacity, The Office of the Chief Trial Counsel of the State Bar of California, The State Bar Court of the State Bar of California, Board of Trustees of the State Bar of California, Defendants: Susan Phan, State Bar of California, Office of General Counsel, San Francisco, CA.
For California Supreme Court, Goodwin Liu, in his individual and official capacity, Carol A. Corrigan, in her individual and official capacity, Ming W. Chin, in his individual and official capacity, Kathryn M. Werdegar, in her individual and official capacity, Marvin R. Baxter, in his individual and official capacity, Joyce L. Kennard, in her individual and official capacity, Tani Gorre Cantil-Sakauye, in her individual and official capacity, Defendants: Ross Charles Moody, LEAD ATTORNEY, Attorney General of the State of California, San Francisco, CA.

JUDGE: MAXINE M. CHESNEY, United States District Judge.

OPINION: ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS; VACATING HEARING

Before the Court are two motions to dismiss plaintiff Jeffrey A. Dickstein's ("Dickstein") complaint: (1) the State Bar Defendants' motion,1 filed November 13, 2012; and (2) the Non-State Bar Defendants' motion,2 filed November 20, 2012. Dickstein has filed one opposition brief responding to both motions, which opposition he supplemented on December 8, 2012; the State Bar Defendants and the Non-State Bar Defendants have separately replied. Having read and considered the papers filed in support of and in opposition to the motions, the Court deems the matters suitable for decision on the parties' respective written submissions, VACATES the hearing scheduled for January 18, 2013, and rules as follows.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
1 The State Bar Defendants are the State Bar of California ("State Bar"), the State Bar Court of the State Bar of California ("Bar Court"), the Board of Trustees of the State Bar of California, the Office of the Chief Trial Counsel of the State Bar of California, Joann M. Remke, Judith A. Epstein, Catherine D. Purcell, Lucy Armendariz, Patrice E. McElroy, Richard A. Honn, Richard A. Platel, Donald F. Miles, Jayne Kim, Joseph R. Carlucci, Charles A. Murray, and William Todd.
2 The Non-State Bar Defendants are the California Supreme Court, Chief Justice Tani Gorre Cantil-Sakauye, Justice Joyce L. Kennard, Justice Marvin R. Baxter, Justice Kathryn M. Werdegar, Justice Ming W. Chin, Justice Carol A. Corrigan, and Justice Goodwin Liu.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -


In his complaint, Dickstein alleges that defendants, which consist of the State Bar, the Bar Court, officials and employees of each of said entities, as well as the California Supreme Court and the justices thereof, have violated and will violate Dickstein's federal rights. Specifically, Dickstein alleges, defendants (1) have violated his First Amendment rights by requiring him to pay dues to the State Bar and instituting disciplinary proceedings against him even though he has resigned from the State Bar (see Compl. ¶¶ 21, 29-30, 91, 98), (2) have violated his equal protection and due process rights by taking the position that the State Bar has statutory and jurisdictional authority to determine whether he has engaged in "other misconduct warranting discipline" (see Compl. ¶¶ 84-85, 103, 109), and, (3) if they subject him to a Rule of Procedure of the State Bar allowing a judge to enter an attorney's default if he fails to appear at a noticed disciplinary hearing, will violate his equal protection and due process rights because, Dickstein asserts, he lack funds to travel to the hearing or to hire an attorney to represent him (see Compl. ¶¶ 86-88, 113-14, 118).3

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
3 Subsequent to the filing of the complaint, the Bar Court entered Dickstein's default (see State Bar Defs.' Req. for Judicial Notice Ex. H) and thereafter denied Dickstein's motion to set aside the default (see Pl.s' Ex. F).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -


In their respective motions, the State Bar Defendants and the Non-State Bar Defendants argue the complaint is subject to dismissal on abstention grounds.

The Ninth Circuit has held that a federal district court ordinarily "must abstain from granting injunctive or declaratory relief that would interfere with pending state judicial proceedings," including "disciplinary proceedings" pending before the State Bar. See Hirsh v. Justices of the Supreme Court of the State of California, 67 F.3d 708, 712 (9th Cir. 1995); see also Rosenthal v. Carr, 614 F.2d 1219, 1220 (9th Cir. 1980) (finding "abstention doctrine generally precludes federal court interference with pending state attorney disciplinary proceedings"; affirming, on abstention grounds, dismissal of complaint seeking injunction precluding State Bar from proceeding with disciplinary proceeding against plaintiff until State Bar appointed counsel for plaintiff).

In particular, "[a]bsent extraordinary circumstances, abstention in favor of state judicial proceedings is required if the state proceedings (1) are ongoing, (2) implicate important state interests, and (3) provide the plaintiff an adequate opportunity to litigate federal claims." See Hirsh, 67 F.3d at 712 (internal quotation and citation omitted).

Here, each of the three enumerated prerequisites for abstention is satisfied. First, plaintiff concedes the State Bar's disciplinary proceeding is ongoing, and, indeed, in support of his opposition, has offered copies of various orders issued in the course of the disciplinary proceeding. Second, "California's attorney disciplinary proceedings implicate important state interests." See id. Third, an attorney subject to disciplinary proceedings before the Bar Court may raise "federal constitutional claims" upon "judicial review of the Bar Court's decision," which opportunity "satisfies the third requirement" even though the California Supreme Court's review is "wholly discretionary." See id.

Dickstein argues that abstention nonetheless is improper in this instance because, Dickstein asserts, extraordinary circumstances exist.

In support thereof, Dickstein first reiterates his claims that his federal rights have been and will be violated by the Bar Court. Dickstein's argument is unavailing. As explained in Hirsh, Dickstein may raise his federal claims by seeking from the California Supreme Court judicial review of any adverse decision by the Bar Court. See id.

Dickstein next argues that if he files a petition for review, and if the California Supreme Court exercises its discretion to grant such review, they will rule on his petition in an unconstitutional manner. Given that no petition has been filed, let alone ruled upon, Dickstein's argument is based, in essence, on no more than his speculation that the California Supreme Court will not follow the United States Constitution. Such speculation is, as a matter of law, insufficient to identify an "extraordinary circumstance" warranting this Court's intervention into the ongoing disciplinary proceeding. In particular, as the United States Supreme Court has explained, the principles underlying abstention are based on "a proper respect for state functions," see Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 431, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (internal quotation and citation omitted), and that such respect "precludes any presumption that the state courts will not safeguard federal constitutional rights," see id.; see also Confederated Tribes v. Superior Court, 945 F.2d 1138, 1141 (9th Cir. 1991) (noting "[t]he supremacy clause of the Constitution requires state judges to discern and apply federal law where it is controlling"; rejecting argument based on presumption state judges "will not do so unless a federal court tells them to").

In sum, each prerequisite for abstention having been satisfied and Dickstein having [*8] failed to identify any cognizable extraordinary circumstances, the Court will decline to exercise jurisdiction over Dickstein's claims.

Accordingly, defendants' motions to dismiss are hereby GRANTED, and the complaint is hereby DISMISSED without leave to amend and without prejudice to Dickstein's raising his federal claims before the California Supreme Court in a petition for review of any adverse decision by the Bar Court.

IT IS SO ORDERED.
December 14, 2012
MAXINE M. CHESNEY
United States District Judge

[wserra]

EDIT: The California Bar does show a "pending" disciplinary case against Dickstein, number 10-C-07932. I see no further details on that.

It's based on Dickstein's contempt conviction, which we discussed in this thread.

[LPC]

In his complaint, Dickstein alleges that defendants, which consist of the State Bar, the Bar Court, officials and employees of each of said entities, as well as the California Supreme Court and the justices thereof, have violated and will violate Dickstein's federal rights. Specifically, Dickstein alleges, defendants (1) have violated his First Amendment rights by requiring him to pay dues to the State Bar and instituting disciplinary proceedings against him even though he has resigned from the State Bar (see Compl. ¶¶ 21, 29-30, 91, 98), (2) have violated his equal protection and due process rights by taking the position that the State Bar has statutory and jurisdictional authority to determine whether he has engaged in "other misconduct warranting discipline" (see Compl. ¶¶ 84-85, 103, 109), and, (3) if they subject him to a Rule of Procedure of the State Bar allowing a judge to enter an attorney's default if he fails to appear at a noticed disciplinary hearing, will violate his equal protection and due process rights because, Dickstein asserts, he lack funds to travel to the hearing or to hire an attorney to represent him (see Compl. ¶¶ 86-88, 113-14, 118).

I think that it is a measure of Dickstein's incompetence to practice law that he would waste the time of a federal court with this kind of drivel.

As far as I can tell, California is the only state in which Dickstein has ever been licensed to practice law (despite having had addresses in Montana, Wisconsin, Alaska, and Oklahoma), so what difference does it make whether he resigns or is disbarred? Either way, he's no longer a lawyer, and probably never will be again.

I might make some other comments about his lack of integrity, and how embarrassing it is to see him squirming to evade the consequences of his derelictions of his duties to the courts and to his clients, but the fact that his legal career is no longer circling the drain but has already been flushed down is obvious even to him, so what's the point.

[notorial dissent]

I don't know about the incompetence part, although I would say that was fairly evident from most of the things I have seen out of him, but certainly ego in this case that would lead him to waste the court's time.

I don't know if this is just one last fling, a desperate attempt to pretend to appear to be a lawyer, of just his ego taking over completely. It certainly seems in keeping with his past endeavors.

The question is, will he file an amended complaint, or just appeal his resounding loss?

[LPC]

More incompetence/desperation: I went to look to see if Dickstein had appealed the dismissal of his complaint in federal court, and found that he had filed a petition with the 9th Circuit Court of Appeals for an injunction pending appeal *before* his complaint had been dismissed, apparently when the district court denied his request for a preliminary injunction. The petition was dismissed for lack of jurisdiction (no final or appealable order) the day before his complaint was dismissed. Jeffrey A. Dickstein v. State Bar of California, et al., No. 12-17334 (9th Cir. 12/13/2012).