REPORT AND RECOMMENDATION OF THE STANDING COMMITTEE ON ATTORNEY DISCIPLINE BEFORE: Fisher, Chairperson, and Ambro and Hardiman, Members, being the Judges constituting the Standing Committee on Attorney Discipline of the United States Court of Appeals for the Third Circuit*fn1
As required under Rule 10.3 of the Rules of Attorney Discipline Enforcement ("R.A.D.E."), the Standing Committee on Attorney Discipline (the "Standing Committee" or "Committee") has prepared the instant Report and Recommendation setting forth its findings of fact and recommending that Janice Haagensen, Esquire ("Ms. Haagensen") be disciplined by this Court for the reasons discussed below. In the first part of this Report and Recommendation, the Committee will outline the procedural history in the above-captioned matters. In part two, the Committee will address the reciprocal discipline proceeding docketed in C.A. Misc. No. 10-8013 and recommend that the Court impose a reciprocal suspension of one year and one day upon Ms. Haagensen. In part three, the Committee will address the original discipline proceeding docketed in C.A. Misc. No. 10-8046 which arose from a referral from the merits panel in C.A. No. 09-1957. With respect to the conduct which is the subject of C.A. Misc. No. 10-8046, the Committee recommends that Ms. Haagensen be publicly reprimanded for conduct unbecoming a member of the bar of this Court. See R.A.D.E. 2.4.
Part I: Procedural History
These matters came before this Court in the following circumstances. The Supreme Court of Pennsylvania suspended Ms. Haagensen -- who has been a member of the bar of this Court since 1995 and a member of the bar of the Supreme Court of Pennsylvania since November 16, 1987 -- for a period of one year and one day, effective February 17, 2010. Although R.A.D.E. 6.1 required Ms. Haagensen to notify the Clerk of this Court within ten days of her suspension by the Supreme Court of Pennsylvania, she failed to do so.*fn2 Nonetheless, the Committee became aware of the suspension and opened a reciprocal discipline proceeding based on the February 17, 2010 order. See C.A. Misc. No. 10-8013 ("Haagensen I"). Under the rules effective at the time of her suspension by the Supreme Court of Pennsylvania, Ms. Haagensen‟s suspension was automatically effective in this Court. See R.A.D.E 7.1 (March 1991). As the Court was preparing to change the Rules of Attorney Discipline Enforcement to require the issuance of an order to show cause before the imposition of reciprocal discipline, this Committee issued an order granting Ms. Haagensen temporary reinstatement to the bar of this Court, and subsequently issued an order to show cause why this Court should not impose the same discipline as that imposed by the Supreme Court of Pennsylvania.*fn3
Ms. Haagensen filed a response to the order to show cause on July 12, 2010 and requested that she "be heard in person in any hearing convened by the Third Circuit regarding this matter." Thereafter, Ms. Haagensen filed a motion entitled "Motion for Designation of Documents Relevant to Ms. Haagensen‟s Defense" requesting that additional documents in "the Grine case" and the Pennsylvania disciplinary proceedings be made available to her.*fn4 The Committee denied this motion on September 14, 2010 without prejudice to Ms. Haagensen offering relevant evidence at the hearing. The Committee denied Ms. Haagensen‟s motion to reconsider on October 13, 2010. Ms. Haagensen then filed a document entitled "Objection on Jurisdictional Grounds to Third Circuit Suppression of Record in Federal Environmental Action at No. 95-342E and Appeal at No. 03-3028, and Jurisdictional Objection to Clerk‟s Attempt to Alter Underlying Record in Federal and/or State Court Proceedings." These objections were denied for the reasons stated in the Committee‟s order of September 14, 2010.
Following the issuance of this Court‟s show cause order in C.A. Misc. No. 10-8013, Ms. Haagensen continued to represent various parties in this Court, including herself as the appellant in Haagensen v. Supreme Court of Pennsylvania, et al., C.A. No. 09-1957.*fn5 Of relevance to the instant attorney discipline proceedings, Ms. Haagensen filed a motion to restore her right to oral argument in C.A. No. 09-1957 on May 7, 2010. On May 12, 2010, she also filed a motion to recuse Judge Richard L. Nygaard. Both of these motions were denied by the merits panel in orders entered on May 12, 2010 and May 13, 2010, respectively. The merits panel in C.A. No. 09-1957 subsequently decided the case and issued an opinion on August 11, 2010, in which it referred Ms. Haagensen‟s behavior to this Committee pursuant to R.A.D.E. 4.2 for consideration of whether the Court should impose disciplinary sanctions against her. See Haagensen v. Supreme Court of Pennsylvania, No. 09-1957, 390 Fed. Appx. 94, 99 (3d Cir. 2010). In relevant part, the merits panel stated as follows:
Haagensen‟s conduct before this Court and others concerns us. In addition to her suspension from the bar of the Commonwealth of Pennsylvania, she has received reciprocal discipline in the Western District of Pennsylvania. A separate case is pending before the Third Circuit‟s Standing Committee on Attorney Discipline, In Re: Janice Haagensen, Civ. A. No. 10-8013.
Haagensen‟s manner of practicing law has been described as "vexatious," Grine, 214 F.R.D. at 369, and her conduct in pursuing this appeal amply evidences this. Following the panel‟s decision not to grant oral argument in this matter, she filed an "Emergency Motion to Restore her Right to Present Oral Argument." Haagensen contended that the Court violated Federal Rule of Appellate Procedure 34, which discusses when oral argument is proper. According to Haagensen, the Clerk of Court, in advising the parties that the case would be submitted on the briefs, "reli[ed] on hearsay and closed-door internal operating procedure to inform Appellant that her right to present oral argument has been terminated." (Appellant‟s Emergency Mot. ¶ 8.) Rule 34 does not state that a panel must place on record its reason for denying oral argument. Moreover, the rule specifically provides for the clerk to advise parties regarding whether oral argument will be scheduled. Haagensen provides no basis for her bold insinuation that the decision not to schedule oral argument was the product of nefarious back-room dealings, rather than the self-evident conclusion that her case did not merit argument.
We find no more persuasive Haagensen‟s contention, which relies on our order excusing the Appellees from filing a brief, that this "case cannot be submitted, as stated in the Clerk‟s letter, "on the briefs,‟ because only one brief (by Appellant) is before the Court." (Id. ¶ 9.) This argument moves an already frivolous case into the realm of the farcical.
The Court is also troubled by the inappropriate language used by Haagensen in addressing this Court and referring to members of this panel. In a Motion for Recusal of Judge Nygaard she alleged that Judge Nygaard "grossly corrupted the record" in a related case and that his "interest in protecting from objective inspection this corruption of the federal record disqualifies him as a judge on the merits panel contemplating Appellant‟s claims against state court judges." (Mot. for Recusal ¶ 6.) Such baseless allegations, directed at a single member of a panel and relying on the language of an unfavorable decision, are reflective of the undisciplined and unprofessional manner in which Haagensen appears to practice law. Haagensen‟s Petition for Rehearing in Grine v. Colburn's Air Conditioning and Refrigeration, et al., Civ. A. No. 09-3775, provides further evidence of Haagensen‟s inappropriate ad hominem attacks. In that Petition, Haagensen contends that Judge Nygaard, the author of our decision in that case, chose to affirm the District Court‟s judgment "because he believes that federal judges are above the law, and ought to be able to write orders which are not subject to review." Id., Appellant‟s Pet. for Rehearing, at 9. Finding normal typeface insufficient, Haagensen proceeds to charge Judge Nygaard with "going outside the record, and off the reservation, WITH A VENGEANCE." (Id. at 12. (emphasis in original)).
For the foregoing reasons, we will affirm the District Court.
We also refer Haagensen‟s behavior in this case to the Court‟s
Standing Committee on Attorney Discipline, which is already considering whether to suspend her in this Court. See Rule 4.2,
Third Circuit Rules of Attorney Disciplinary Enforcement.
Based on this referral from the merits panel in C.A. No. 09-1957, a second disciplinary case concerning Ms. Haagensen was opened: C.A. Misc. No. 10-8046 ("Haagensen II"). Pursuant to R.A.D.E. 7.3, the Committee issued an order to show cause in C.A. Misc. No. 10-8046 which quoted verbatim from the opinion issued in C.A. No. 09-1957 and ordered Ms. Haagensen to show cause why she should not be subject to disciplinary action as a result of alleged violations of R.A.D.E. 2.3 and 2.4.*fn6 Ms. Haagensen filed a response to this order to show cause on September 29, 2010 and requested to be heard in person before the Committee.
On November 18, 2010, a Clerk‟s order was issued consolidating C.A. Misc. Nos. 10-8013 and 10-8046 for all purposes. On December 1, 2010, Ms. Haagensen filed a "Jurisdictional Objection" to this consolidation order, which was denied on December 16, 2010. A hearing was scheduled and held in C.A. Misc. Nos. 10-8013 and 10-8046 on January 10, 2011 at 3 p.m.*fn7 Ms. Haagensen represented herself at the hearing, as she has throughout these disciplinary proceedings. At the hearing, the Committee entered into the record the orders to show cause, the responses thereto, and all of the documents listed in the Clerk‟s letter of December 17, 2010.*fn8 Neither the Committee nor Ms. Haagensen called any witnesses at the hearing. Ms. Haagensen offered into evidence one exhibit, a copy of the Petition for Discipline filed by the Office of Disciplinary Counsel on November 15, 2006 before the Disciplinary Board of the Supreme Court of Pennsylvania.*fn9
Part II: Reciprocal Discipline Proceeding in C.A. Misc. No. 10-8013
The reciprocal discipline proceeding at C.A. Misc. No. 10-8013 was initiated when the Clerk of this Court obtained a copy of the Supreme Court of Pennsylvania‟s order suspending Ms. Haagensen. By way of background, this suspension in Pennsylvania was the culmination of disciplinary proceedings stemming from Ms. Haagensen‟s representation of plaintiffs in a federal civil action, Grine v. Coombs, W.D. Pa. No. 95-342 and multiple appeals to this Court from district court orders entered in that matter. In Grine v. Coombs, 112 Fed. Appx. 830 (3d Cir. 2004), this Court awarded approximately $45,000 to appellees under Federal Rule of Appellate Procedure 38. This amount was taxed solely against Ms. Haagensen, rather than her client, because the merits panel determined that the frivolous appeals were the result of her professional errors. Id. at 834. In November 2006, a petition for discipline was filed with the Disciplinary Board of the Pennsylvania Supreme Court alleging that during the Grine case, Ms. Haagensen violated various Pennsylvania Rules of Professional Conduct.
A Hearing Committee of the Pennsylvania Disciplinary Board concluded that Ms. Haagensen had violated Rules 3.1 and 8.4 of the Pennsylvania Rules of Professional Conduct. The Disciplinary Board concurred, ordered a private reprimand, and taxed Ms. Haagensen $1,499.00 for expenses incurred during the investigation. Ms. Haagensen appealed the Disciplinary Board‟s decision to the Supreme Court of Pennsylvania. On September 25, 2008, the Supreme Court of Pennsylvania affirmed the Disciplinary Board‟s decision and ordered a private reprimand. Ms. Haagensen failed to appear for the scheduled private reprimand and did not pay the expenses taxed against her. The Disciplinary Board subsequently recommended that the private reprimand be converted to a public reprimand. The Supreme Court of Pennsylvania rejected this recommendation and instead entered a rule on November 18, 2009 "to show cause why [Ms. Haagensen] should not be suspended from the practice of law in this Commonwealth for a period of one year and one day." Ms. Haagensen did not respond and the Supreme Court of Pennsylvania entered the February 17, 2010 order suspending her for a period of one year and one day, which is the subject of the reciprocal discipline proceeding in this Court.*fn10
As discussed above in Part I, the Clerk of this Court transmitted the February 17, 2010 order of the Supreme Court of Pennsylvania to the Committee. On June 15, 2010, the Committee ordered Ms. Haagensen to show cause why she should not be suspended for a period of one year and one day in this Court, "effective upon the entry of the order of suspension in this Court." Upon the filing of Ms. Haagensen‟s response opposing the imposition of reciprocal discipline, the proceedings in C.A. Misc. No. 10-8013 continued as a contested proceeding under R.A.D.E. 10.
Admission to the bar of this Court is predicated upon an attorney‟s admission to the bar of the Supreme Court of the United States, any United States Court of Appeals, any United States District Court, the District Court of the Virgin Islands, or the highest appellate court of any state or territory. Attorneys who are disciplined in other courts are subject to reciprocal discipline in this Court under R.A.D.E. 7. The "identical discipline imposed by another court is presumed appropriate for discipline imposed as a result of that other court‟s suspension or disbarrment of an attorney." R.A.D.E. 3.1. As reflected by the record in this case, Ms. Haagensen has been ordered suspended for a period of one year and one day by each of the following courts: the Supreme Court of Pennsylvania (by order dated February 17, 2010), the United States District Court for the Western District of Pennsylvania (by order dated March 31, 2010), and the United States District Court for the Eastern District of Pennsylvania (by order dated September 23, 2010).*fn11
In her response to the order to show cause issued in C.A. Misc. No. 10-8013, Ms. Haagensen contends that she should not be subject to reciprocal discipline in this Court because the Pennsylvania proceedings constituted a violation of the Supremacy Clause of the United States Constitution. According to Ms. Haagensen, this Court cannot take reciprocal disciplinary action premised upon the Supreme Court of Pennsylvania order of February 17, 2010 because it is "null and void on its face because it is rendered by a tribunal unknown to the federal republic." (Response filed in C.A. Misc. No. 10-8013 at ¶ 3, p. 1.) In essence, Ms. Haagensen contends that the order is null and void because the Supreme Court of Pennsylvania and the Pennsylvania Disciplinary Board were without jurisdiction to sanction her, even though she is a member of the Pennsylvania bar, because the sanctions were based on putative actions in federal proceedings, e.g., actions in the United States District Court for the Western District of Pennsylvania and before this Court in the Grine case. (Id. ¶¶ 21, 22, at p. 6.) Ms. Haagensen alleges that, "[a] state in reliance on its constitution or through its sovereignty has no power to override or make exceptions to the original or appellate jurisdiction conferred on the federal courts by the Constitution of the United States. Pennsylvania‟s state courts are constitutionally precluded from interfering with discovery process in a federal forum, reviewing federal appeals on their merits, ruling on the merits of petitions for certiorari to the U.S. Supreme Court, and making findings as to the integrity of FOIA inquiries." (Id. at ¶13, p. 3.) According to Ms. Haagensen, if any discipline was to be imposed as a result of her conduct in the Grine appeals, then the merits panels in those cases should have referred her behavior to the Committee. In other words, because the merits panels in the Grine cases did not "frame disciplinary charges against the Respondent," the state authorities were without jurisdiction or authority to later do so under the Pennsylvania Rules of Disciplinary Enforcement.
The case law does not support Ms. Haagensen‟s position. See, e.g., Gadda v. Ashcroft, 377 F.3d 934, 944 (9th Cir. 2004) (rejecting as without merit an attorney‟s arguments that "federal law preempts a state‟s authority to discipline or regulate the conduct of attorneys who, like him, practice exclusively in the immigration or federal courts and, accordingly, the Supreme Court of California lacked jurisdiction to disbar him"); Gillette v. Edison, 593 F. Supp. 2d 1063, 1068 (D.N.D. 2009) ("The Court expressly finds that the North Dakota Supreme Court has jurisdiction to discipline Gillette for professional misconduct regardless of where the misconduct occurred."); Woloohojian Realty Corp. v. Bogosian, No. CA 93-348 L, 2008 WL 4646109, at *1 (D.R.I. Oct. 17, 2008) (rejecting attorney‟s argument that Massachusetts could not discipline him for conduct occurring in a federal case heard in Rhode Island) (collecting cases); In re Dennis, 188 P.3d 1, 13-14 (Kan. 2008) (holding that Kansas Supreme Court possessed jurisdiction to discipline attorney for conduct in federal court) (per curiam); In re Scanio, 919 A.2d 1137, 1145 (D.C. 2007) ("[A]ttorneys have a duty, at all times and in all conduct, both professional and personal, to conform to the standards imposed upon members of the Bar as conditions for the privilege to practice law.") (internal quotation marks omitted); In re Soininen, 783 A.2d 619, 622 (D.C. 2001) (disciplining member of D.C. bar for acts committed in Virginia); Mississippi Bar v. Strauss, 601 So.2d 840, 845 (Miss. 1992) (imposing suspension from practice of law in Mississippi for violation of a local rule of the federal court).
Ms. Haagensen‟s attempts to raise similar jurisdictional arguments before the Pennsylvania Supreme Court, the United States District Court for the Western District for Pennsylvania, and this Court have all been unsuccessful. See Haagensen, 390 Fed. Appx. at 96-97, aff‟g Haagensen v. Supreme Court of Pennsylvania, 651 F. Supp. 2d 422, 429 (W.D. Pa. 2009) (collecting cases rejecting arguments similar to Ms. Haagensen‟s); In re: Haagensen, No. 09-mc-310, 2010 WL 887366, at *3 (W.D. Pa. March 8, 2010) ("Further, even assuming [Ms. Haagensen] properly asserted [the jurisdictional argument that she attempts to re-litigate] here, we find that this argument does not fall within any of the four exceptions to L.R. Civ. P. 83.3.D.4."). Thus, assuming arguendo that Ms. Haagensen has properly raised these jurisdictional arguments again before the Committee, we recommend that this Court likewise reject Ms. Haagensen‟s jurisdictional arguments.
Ms. Haagensen‟s remaining arguments regarding the putative violation of her due process rights and R.A.D.E. 10.5 are also unpersuasive. It is clear that even in a reciprocal disciplinary proceeding arising from the imposition of discipline in another court, a federal court has the power to determine who may be admitted to its bar. See In re Surrick, 338 F.3d 224, 230-31 (3d Cir. 2003). A state court disbarrment proceeding will not be considered valid if it was entered without due process of law, was not predicated on sufficient evidence, or for some other reason should not be recognized. In re Rodriguez, 304 Fed. Appx. 947, 954 (3d Cir. 2008) (citing Selling v. Radford, 243 U.S. 46, 51 (1917)). R.A.D.E. 10.5 provides that:
A certified copy of a judgment or order demonstrating that a member of the bar of this Court has been disbarred or suspended by another court is accepted as establishing that the conduct for which the discipline was imposed in fact occurred and that the discipline imposed was appropriate unless it appears:
(a) that the procedure was so lacking in notice or opportunity to be heard as to constitute a ...