ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Civil No. 76-495.
Van Dusen, Adams and Gibbons, Circuit Judges.
The issue for resolution here is whether the district court erred in refusing to intervene in a pending state bar disciplinary proceeding.
This appeal arises out of litigation in which Leroy Gipson, Jr., a member of the bar of the State of New Jersey who is under temporary suspension on account of alleged ethical violations, sought to have the district court lift his suspension and declare New Jersey's system of attorney discipline unconstitutional.*fn1
As a result of numerous complaints alleging that Mr. Gipson had failed to deal properly with and to account for client funds, the Union County Ethics Committee issued a complaint against him on December 4, 1974. Although state disciplinary rules provide that an answer must be filed within ten days, Mr. Gipson did not respond until February, 1975. His answer admitted some of the allegations but denied any deliberate wrongdoing.
On June 4, 1975, the Committee, pursuant to its investigatory powers, served a subpoena duces tecum on Mr. Gipson requiring his presence at a hearing on June 18, 1975, and ordering the production of financial documents for a period stretching from January, 1970 to June, 1975. The hearing was postponed until June 26, 1975, at which time Mr. Gipson appeared without an attorney and without the requested documents. A further adjournment was granted in order to enable Mr. Gipson to retain counsel.
When a lawyer was obtained, Mr. Gipson requested a change of venue, charging that previous disciplinary actions concerning him had biased the Union County Committee. This request was denied. Mr. Gipson then filed a similar request for a change of venue with the New Jersey Supreme Court. Chief Justice Hughes directed that a formal motion be made before the Union County Committee. This was done, and after several affidavits were filed on behalf of the Committee, the motion for a change of venue was denied on September 9, 1975. The Supreme Court then issued a rule to show cause on Mr. Gipson concerning compliance with the subpoena. Shortly thereafter, the composition of the Committee conducting the investigation was changed to insure that no member had any connection with prior proceedings concerning Mr. Gipson.
As a result of these developments, Mr. Gipson agreed to cooperate with the Committee. But when he appeared for a hearing on December 2, 1975, he produced only a small portion of the requested records. A further two-week extension was granted and Mr. Gipson agreed to comply with the subpoena. However, at the conclusion of the two week period he again failed to bring forward the subpoenaed documents.
At this juncture, the Chief of Central Ethics, a disciplinary officer with statewide authority, requested the New Jersey Supreme Court to suspend Mr. Gipson temporarily on account of his failure to produce the subpoenaed materials. The Supreme Court issued a rule to show cause on February 4, 1976. Mr. Gipson filed an affidavit with the Court, alleging that he was currently maintaining the required records. At oral argument before the Supreme Court, however, Mr. Gipson's attorney admitted that such records had not been kept by his client before December, 1975. But his counsel also stated that Mr. Gipson was attempting to reconstruct such records.
On March 12, 1976, the New Jersey Supreme Court temporarily suspended Mr. Gipson.*fn2 Its order provided, however, that the suspension would be lifted if Mr. Gipson supplied either the subpoenaed documents or an acceptable reconstruction of his financial records. At oral argument before this Court, we were informed that Mr. Gipson has yet to comply with the subpoena, and had not reconstructed his financial records. His attorney also conceded that at no point has Mr. Gipson petitioned the New Jersey Supreme Court to lift his temporary suspension on the ground that it is impossible for him to comply with the court order.
Following his suspension, Mr. Gipson commenced his federal court action. He sought, inter alia, a vacation of the suspension order. Since Mr. Gipson's complaint also challenged the constitutionality of the rules of attorney discipline of the State of New Jersey, a three-judge district court was convened.*fn3 On July 21, 1976, the suit was dismissed, the three-judge court ruling that its action ...