Filed: Oct. 28, 2019
Latest Update: Mar. 03, 2020
Summary: Maine property to descend an embankment they would then cross, a small portion of Burbank's property in order to get to the beach. that the misconduct established is deemed by the Court, to warrant different discipline., That's the only part of his treaty-based argument we spill ink on.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 19‒8010
IN RE HAROLD HALEY BURBANK, II,
Respondent.
ON ORDER TO SHOW CAUSE WHY RECIPROCAL
DISCIPLINE SHOULD NOT BE IMPOSED
Before
Thompson, Boudin, and Kayatta,
Circuit Judges.
Harold Haley Burbank, II pro se.
October 28, 2019
Per Curiam. On January 24, 2018, the Supreme Judicial
Court of Maine ("SJC") imposed upon Harold Haley Burbank, II
("Burbank") a twelve-month suspension from the practice of law,
which in turn prompted this court to issue an order to show cause
why it should not impose reciprocal discipline. Having carefully
considered the arguments Burbank advanced in his brief and during
his hearing before our disciplinary panel, we now order that
Burbank be suspended from practice before this court for a period
of twelve months nunc pro tunc to run concurrently with his Maine
suspension, and he may seek reinstatement in this court when and
if he is reinstated in Maine.
We lay out some basic facts to provide context and round
out the foundation of the disciplinary proceedings. This
proceeding stems from a property dispute between Burbank's
neighbors and eighteen members of Burbank's family, including
Burbank.1 The neighbors filed suit, seeking grant of a
prescriptive easement, conversion, and punitive damages regarding
a small piece of property co-owned by Burbank and his family
members. Burbank represented himself and three co-owners (his
1 The neighbors had been using for decades, without issue or
objection, beach-access stairs adjacent to Burbank's Northport,
Maine property to descend an embankment -- they would then cross
a small portion of Burbank's property in order to get to the beach.
Burbank took it upon himself to report the stairs as a zoning
violation and, ultimately, he removed the stairs (contrary to an
advisement from the town and against the wishes of his fellow co-
owners), giving rise to this lawsuit.
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father, sister, and brother); the remaining family members,
separately represented, filed a cross-claim for partition by sale
of property.
In finding in favor of the neighbors across the board
(and also granting the petition for partition), the Maine Superior
Court concluded Burbank's actions demonstrated "malice." The
court levied a $20,000 judgment ($15,000 of that was punitive
damages) in light of "all the aggravating and mitigating factors
indicated by the evidence, the reprehensibility of [Burbank's]
conduct toward the [neighbors], and the harm caused to the
[neighbors]." Lincoln v. Burbank II, 2015 WL 10134783 at *18 (Me.
Super. Aug. 11, 2015). Burbank appealed.2
The SJC, sitting as the Law Court, affirmed, adding
$10,000 in sanctions for Burbank's "repeated misconduct" in
prosecuting the appeal: he "state[d] facts not in the trial court
record"; raised issues but provided "no further argument"; and
argued issues that were "meritless," "frivolous," and "devoid of
legal authority." Lincoln v. Burbank, 147 A.3d 1165, 1172-79 (Me.
2016). The Law Court explained that "Burbank [] consistently
disregarded standards of law and practice that govern appellate
review," and his "efforts ha[d] been disrespectful to the proper
role of the trial court, unfair to and expensive for the other
2 Burbank initially was represented by counsel -- when she
withdrew, Burbank proceeded pro se.
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parties, and contrary to Maine appellate law." Id. at 1179. The
Law Court also concluded that "Burbank's frivolous and baseless
actions [were] egregious conduct that [] confused the issues on
appeal, delayed final resolution of th[e] matter, and
significantly [drove] up the costs to other parties."
Id.
The Board of Overseers commenced an investigation and
then disciplinary proceedings. The matter was then referred to
the SJC, where Burbank's actions continued to be "problematic."
Based on the SJC's findings and conclusions in the underlying case,
taken together with the evidence the SJC heard at the disciplinary
hearing, the SJC ordered the suspension of Burbank based on his
violations of the Maine Rules of Professional Misconduct.3 Bd. of
Overseers of the Bar v. Burbank, No. BAR-17-12, 5-8 (Me. Jan. 24,
2018).
As for the penalty to be imposed, the SJC observed there
were "many aggravating factors" and "some mitigating factors."
Id. at 7. As for the aggravating factors, the SJC considered the
seriousness of the misconduct and the fact that he "caused
substantial injury to the parties" and wasted judicial resources.
Id. But the SJC also noted that Burbank had no prior disciplinary
3Rules violated included Rule 1.1 (requiring competence),
Rule 1.3 (requiring diligence), Rule 3.1 (barring frivolous and
bad faith arguments), Rule 3.4 (barring attorneys from "knowingly
disobey[ing] an obligation under the rules of a tribunal"), and
Rule 8.4 (barring violations of these Rules and "engag[ing] in
conduct that is prejudicial to the administration of justice").
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record in Maine alongside the stress he was under due to his
father's poor health and Burbank suffering a stroke himself. Id.
Additionally, the SJC recognized that Burbank had provided
competent legal representation in Maine in the past, and while not
all of Burbank's misconduct was deliberate, as a practicing
attorney he "should have known that his conduct was far afield
from the standards expected of a reasonably competent attorney,
and that his actions constituted misconduct."
Id. at 7-8.
On balance, those factors added up to the imposition of
a twelve-month suspension with the requirement that Burbank
petition for reinstatement.4 Back in Connecticut, Burbank's
primary residence and practice jurisdiction, the Superior Court,
Office of Chief Disciplinary Counsel v. Burbank, No. DN HHDCV
186088744-S, ¶ 3 (Conn. Super. Ct. June 4, 2018), and then the
United States District Court for the District of Connecticut, In
re Burbank, No. 3:18-gp-00006 (MPS), 1 (D. Conn. Nov. 8, 2018),
imposed reciprocal suspensions.
Upon receiving the SJC's order, this court initiated its
own disciplinary proceedings through an order to show cause why
substantially the same discipline should not be imposed. Indeed,
our inquiry is limited to the appropriateness of imposing
4The Maine suspension was entered on January 24, 2018, so
Burbank is now eligible for reinstatement, however he has not
petitioned for reinstatement; the $10,000 and $20,000 in sanctions
and damages remain unpaid.
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reciprocal discipline in this court, and our standards for doing
so "are clear and are set forth in In re Williams, 398 F.3d 116
(1st Cir. 2005) (per curiam)." In re Oliveras López De Victoria,
561 F.3d 1, 3 (1st Cir. 2009). We impose substantially similar
discipline to that imposed in the state court unless the respondent
persuades us
1. that the procedure used by the other court was so
lacking in notice or opportunity to be heard as to
constitute a deprivation of due process; or
2. that there was such an infirmity of proof establishing
the misconduct as to give rise to the clear conviction
that this Court could not, consistent with its duty,
accept as final the conclusion on that subject; or
3. that the imposition of substantially similar
discipline by this Court would result in grave
injustice; or
4. that the misconduct established is deemed by the Court
to warrant different discipline.
In re Williams, 398 F.3d at 119 (quoting 1st Cir. R. Att'y Discip.
Enf. (Discip. R.) II.C)); see also Fed. R. App. P. 46(b)(1)(A).
The respondent bears the burden to demonstrate "by clear and
convincing evidence . . . that the imposition of substantially
similar discipline is unwarranted." In re Barach,
540 F.3d 82, 85
(1st Cir. 2008). "Given the limited nature of our inquiry, the
norm will be for this court to impose discipline which is
substantially similar to that imposed by the state court." In re
Williams, 398 F.3d at 119 (citing In re Hoare,
155 F.3d 937, 940
(8th Cir. 1998)); see also In re Kersey,
402 F.3d 217, 218 (1st
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Cir. 2005).
In his lengthy response to the show cause order, Burbank
appears to argue that: he was deprived of due process in this
court by virtue of improper service of the order to show cause;
the SJC didn't consider his health issues when imposing its
discipline; the SJC violated his rights under a United Nations
treaty; and the Maine courts and this court committed a variety of
violations of his constitutional rights.5
As we review these arguments, we will "treat the state
court's factual findings with a high degree of respect," In re
Barach, 540 F.3d at 84 (citing In re
Williams, 398 F.3d at 118),
even as we "fully consider the state record" in determining whether
reciprocal discipline is warranted,
id. (citing Selling v.
Radford,
243 U.S. 46, 51 (1917)).
Overall, we are not persuaded by Burbank's conclusory
and haphazard arguments, most of which seek to relitigate the SJC's
disciplinary proceedings or request dismissal of the "federal
complaint" against him. First, we reject Burbank's service- and
notice-related contention that the case (our disciplinary inquiry,
5 To the extent Burbank's attacks on the SJC's disciplinary
proceedings and fact-finding are a plea for us to do something
about the discipline the SJC imposed, we note only that this court
"lack[s] jurisdiction in a federal disciplinary proceeding to
vacate or modify the state court's imposed discipline." In re
Barach, 540 F.3d 82, 84 (1st Cir. 2008) (citing In re
Williams,
398 F.3d at 118).
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we assume) must be dismissed because he says the SJC's disciplinary
decision was not attached to our show-cause order. Even if this
argument would fit the bill for one of the four enumerated grounds
for not imposing substantially similar discipline, and further
assuming the SJC's decision was not attached, as he says, Burbank
has suffered no prejudice since he already had a copy of the SJC's
decision -- he conceded as much to this panel at oral argument.
Next: Burbank's claim that he's "clearly exempt[ ] from
ethics rules due to diagnosed medical incapacity," and his
assertion that his health was not adequately considered by the
SJC. But we're not aware of -- and Burbank does not direct us to
-- any authority supporting his take on the rules of professional
conduct. And the second piece is easily disposed of since the SJC
explicitly listed Burbank's health among the mitigating factors it
carefully weighed.6
We collapse Burbank's remaining big-ticket arguments
into one: constitutional and treaty-based violations, all of which
we reject as nonstarters, and most of which do not relate to any
of the four enumerated grounds that must be shown to persuade us
not to impose substantially similar discipline. For example,
Burbank says Maine's discipline, along with our own reciprocal
Burbank also advances an Eighth Amendment argument that the
6
SJC disregarding his health is cruel and unusual punishment, but
again, the SJC did consider his health. For this reason (and
others we need not get into), this is another baseless assertion.
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discipline inquiry, are in contravention of his rights under a
United Nations treaty, which he says allows him to protect his
family and therefore renders his "frivolous" arguments not so
frivolous since they were made for that purpose.7 But even taking
that novel and devoid-of-legal-authority argument as true, Burbank
does not tell us -- and we do not see -- how it advances any of
the grounds for us not imposing substantially similar discipline
in his case. And, along those same lines, he says his arguments
were protected political speech, but that flies in the face of our
precedent. See, e.g., In re Zeno, 504 F.3d 64, 66 (1st Cir. 2007)
(explaining that an attorney's "free speech" during litigation is
"extremely circumscribed," and an attorney cannot rely on the First
Amendment to bring any legal theory he wishes without risk of
sanction or discipline) (quoting Gentile v. State Bar of Nevada,
501 U.S. 1030, 1071 (1991)).
Burbank also points to the Fourteenth Amendment in
support of his position that the Maine proceedings and this
"federal complaint" were deficient and constitute a due process
violation because he was never informed of the specific claims
against him. This lacks merit. To the extent Burbank is attacking
the proceedings before the Law Court, that court's procedure is
7 Burbank mostly just copied and pasted from the treaty with
little effort at developed argumentation, but the family-
protection angle is something he somewhat attempts to develop.
That's the only part of his treaty-based argument we spill ink on.
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not our focus8 -- we instead look to the proceedings before the
SJC, which bear no indicia of any due process shortcomings.
Indeed, the SJC provided sufficient notice to Burbank of the
allegations against him, time to respond, and, ultimately, a
testimonial hearing before imposing a suspension from practice.
For our part, this court notified Burbank of the claims against
him in the show-cause order. We see no defect at all, let alone
one so severe as to constitute a deprivation of due process in the
notice and opportunity to be heard. See In re Williams, 398 F.3d
at 119-20; Discip. R. II.C(1).
And we reject out of hand Burbank's conclusory position
that he has demonstrated that the imposition of reciprocal
discipline would occasion grave injustice. See In re Williams,
398 F.3d at 119; Discip. R. II.C(3). This was not adequately
developed by Burbank and, in any event, lacks merit.
We therefore impose upon Burbank a twelve-month
suspension from the bar of this court nunc pro tunc to run
concurrently with his Maine suspension. If and when Maine
But we do note that the Law Court's decision itself put
8
Burbank on notice of the misconduct allegations that would follow,
spending a great many pages describing in detail Burbank's
misconduct before concluding it warranted sanctions, Lincoln, 147
A.3d at 1172-79, even going as far as to write that "Burbank has
had both notice of the potential for sanctions on this appeal (and
similar notice at the trial court level), and an opportunity to be
heard on the motion for sanctions, which he treated with the same
disregard for deadlines as he has treated other court rules,"
id.
at 1176.
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reinstates Burbank to the practice of law, Burbank may seek
reinstatement in this court.
So ordered.
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