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Attorney Irks Tenth Circuit with 'Frivolous' Disbarment Appeal

By Robyn Hagan Cain on November 01, 2012 | Last updated on March 21, 2019

If the definition of insanity is repeating the same action with the expectation of a different result, then the lawyer's definition of insanity is rehashing the same argument before a court with the expectation that you won't be threatened with sanctions.

Courts do not appreciate persistence. And they can back up their annoyance with fines and disbarment.

The Tenth Circuit Court of Appeals suspended David Smith in 1993, and disbarred him in 1996. In reciprocal disciplinary proceedings, the federal district court disbarred him in 1996, and the Colorado Supreme Court disbarred him in 1999.

In 2007, the Tenth Circuit reinstated Smith. Based on that reinstatement, Smith sought to be reinstated to the federal district court. He request was denied because he remained disbarred by the Colorado Supreme Court.

(According to the district court's local rules, an attorney must be in good standing in all courts to which he was admitted.)

Smith repeatedly -- and unsuccessfully -- asked the district court to reconsider. His most recent motions, which he appealed in the Tenth Circuit, may have done more harm than good.

First, invoking Federal Rule of Civil Procedure (FRCP) 60(b), Smith moved the district court to vacate its 1996 disbarment order and a 2010 order denying him reinstatement. He argued that under FRCP 60(b)(4), the district court's orders were void because they were predicated on the Tenth Circuit's original disbarment order, which had been entered without an evidentiary hearing.

The appellate court disagreed and refused to review the matter, noting that it had previously ruled that he was not entitled to an evidentiary hearing.

He also argued under FRCP 60(b)(5) that it was inequitable to prospectively apply the district court's orders following his reinstatement in this court. Again, Smith lost. The appellate court reminded Smith that a district court has independent authority to regulate and discipline the members of its own bar.

Finally, Smith cited the catch-all provision of FRCP 60(b)(6), which allows for relief for any other justifiable reason. The Tenth Circuit concluded that Smith was simply rehashing his evidentiary hearing argument, and denied relief.

Smith moved on to a FRCP 59(e) motion, asking once again that the district court alter or amend its judgment, this time from the denial of Rule 60(b) relief. Smith insisted the disbarment orders entered by the Tenth Circuit, the district court, and the Colorado Supreme Court were all "null and void ab initio" because he had been denied an evidentiary hearing.

It wasn't a winning argument when argued under FRCP 60(b), and it wasn't a winning argument when argued under FRCP 59(e). The appellate court characterized Smith's appeal as frivolous and warned that further frivolous appeals would compromise his bar status.

We get it. Smith makes a living practicing law. If "lack of an evidentiary hearing" is the only argument he's got, we don't blame him for exhausting it. Exhausting the appellate court's patience, however, is a bad idea. Especially when it's the only court that is permitting Smith to practice.

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