Opinion
No. 03-809.
Filed May 20, 2003.
Before EBEL, KELLY, and O'BRIEN, Circuit Judges.
Order to Show Cause (Attorney Discipline)
This disciplinary panel was drawn at random from active judges to consider whether Attorney Jo Ann Fulton should be sanctioned as provided in the court's local rules. See 10th Cir. R. 46.6(C) and Addendum III, Plan for Attorney Discipline Enforcement. The rules are available athttp://www.ck10.uscourts.gov/circuit/rules.cfm. Possible sanctions, up to and including suspension or disbarment, are detailed in the rules. The following information has been provided to the panel and serves as the basis for possible discipline.
Ms. Fulton's most recent violations occurred in two direct criminal appeals. In United States v. Thayer, appeal No. 02-8081, she failed to file the opening brief and failed to respond to the court's show cause order. In United States v. Rael, appeal No. 02-8086, she failed to file the opening brief. After receiving a warning letter, she filed a deficient brief. The clerk's office mailed a deficiency letter and ordered her to file a corrected brief, which she failed to do. The clerk's office then issued a show cause order, to which she failed to respond. Consequently, the Clerk's Panel struck her from appeal Nos. 02-8081 and 02-8086 and referred her to the attorney discipline program. She ignored the court's orders to mail all documents pertinent to the appeals to the attorneys appointed to replace her.
Jo Ann Fulton has been a member of the bar of this court since 1992. She has been involved in at least twelve Tenth Circuit appeals and committed violations in ten of these appeals. A chart has been prepared which details the violations, most of which occurred in direct criminal cases. Ms. Fulton has been referred to the attorney discipline program twice before. See In re: Jo Ann Fulton, 97-811; In re: Jo Ann Fulton, 02-809. The court imposed sanctions of $100 and $500, which she paid.
Within twenty days of the date of this order, Ms. Fulton shall indicate in writing how the recited facts are inaccurate and, if not, show cause why she should not be disciplined for failure to abide by the rules of this court. The clerk shall include a copy of the chart detailing historical violations with this Order to Show Cause. Notice shall be provided to attorney Jo Ann Fulton by regular and certified mail. If Ms. Fulton fails to timely respond, discipline up to disbarment may be imposed.
9.0 Aggravation and Mitigation
9.1 Generally
After misconduct has been established, aggravating and mitigating circumstances may be considered in deciding what sanction to impose.
Commentary
Each disciplinary case involves unique facts and circumstances. In striving for fair disciplinary sanctions, consideration must necessarily be given to the facts pertaining to the professional misconduct and to any aggravating or mitigating factors (see Standards for Lawyer Discipline, Standard 7.1). Aggravating and mitigating circumstances generally relate to the offense at issue, matters independent of the specific offense but relevant to fitness to practice, or matters arising incident to the disciplinary proceeding.
9.2 Aggravation
9.21 Definition. Aggravation or aggravating circumstances are any considerations, or factors that may justify an increase in the degree of discipline to be imposed.
9.22 Factors which may be considered in aggravation. Aggravating factors include:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;
(g) refusal to acknowledge wrongful nature of conduct;
(h) vulnerability of victim;
(i) substantial experience in the practice of law;
(j) indifference to making restitution.
Commentary
Cases citing each of the factors listed above include: (a) prior disciplinary offenses: Matter of Walton, 251 N.W.2d 762 (N.D. 1977), People v. Vernon, 660 P.2d 879 (Colo. 1982); (b) dishonest or selfish motive: In re: James H. Dineen, SJC-535 (Maine 1980); (c) pattern of misconduct: The Florida Bar v. Mavrides, 442 So. 2d 220 (Fla. 1983); State v. Dixon, 233 Kan. 465, 664 P.2d 286 (1983); (d) multiple offenses: State ex rel. Oklahoma Bar Association v. Warzya, 624 P.2d 1068 (Okla. 1981), Ballard v. State Bar of California, 35 Cal. 3d 274, 673 P.2d 226, 197 Cal. Rptr. 556 (1983); (e) bad faith obstruction of disciplinary proceedings In re Brody, 65 Ill. 2d 152, 357 N.E.2d 498 (1976), Committee on Prof. Ethics v. Brodsky, 318 N.W.2d 180 (lowa 1982); (f) lack of candor during the disciplinary process: In re Stillo, 68 Ill. 2d 49, 368 N.E.2d 897 (1977), Weir v. State Bar, 23 Cal. 3d 564, 591 P.2d 19, 152 Cal. Rptr 921 (1979); (g) refusal to acknowledge wrongful nature of conduct: Greenbaum v. State Bar, 18 Cal. 3d 893 544 P.2d 921 126 Cal. Rptr. 785 (1976), H. Parker Stanley v. Bd. of Professional Responsibility, 640 S.W.2d 210 (Tenn. 1982); (h) vulnerability of victim: People v. Lanza, 613 P.2d 337 (Colo. 1980); (i) substantial experience in the practice of law John F. Buckley, 2 Mass. Atty. Dis. Rpt. 24 (1980); (j) indifference to making restitution: The Florida Bar v. Zinzell, 387 So. 2d 346 (Fla. 1980); Bate v. State Bar of California, 34 Cal. 3d 920, 671 P.2d 360, 196 Cal. Rptr. 209 (1983).
9.3 Mitigation
9.31 Definition. Mitigation or mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed.