                                                                F I L E D
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                 DEC 15 2003
                          FOR THE TENTH CIRCUIT
                                                            PATRICK FISHER
                                                                      Clerk

MIGUEL M. RIOS and CORINA
RIOS, husband and wife, and as
parents and next friends of Ami and
Roxanne Rios, minor children,

            Plaintiffs,

v.                                                 No. 03-2049
                                         (D.C. No. CIV-00-68- KBM/LCS)
VILLAGE OF HATCH, ex rel. Hatch                     (D. N.M.)
Police Department; TERRY LEWIS,
individually and in his official
capacity as an Officer for the Village
of Hatch Police Department; UNITED
STATES DEPARTMENT OF
JUSTICE, ex rel. United States;
UNITED STATES DEPARTMENT
OF IMMIGRATION AND
NATURALIZATION SERVICE;
UNITED STATES BORDER
PATROL,

            Defendants.


JOSE L. ARRIETA,

            Appellant.
                             ORDER AND JUDGMENT             *




Before O’BRIEN and ANDERSON , Circuit Judges, and               BRORBY , Senior
Circuit Judge.



       After examining appellant’s brief and the appellate record, this panel has

determined unanimously to grant appellant’s request for a decision on the brief

without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

       Appellant Jose L. Arrieta appeals the order entered by the magistrate judge

on March 14, 2001 removing him as counsel for the plaintiffs in the underlying

civil rights case, Rios v. Village of Hatch, et al.   Although the removal order was

proper given the fact that Mr. Arrieta had not been readmitted to the Federal Bar

of the District of New Mexico after his disbarment by the Supreme Court of New

Mexico, we conclude that the magistrate judge violated Mr. Arrieta’s right to

procedural due process when he went beyond the admission issue and made

specific findings of misconduct by Mr. Arrieta without providing Mr. Arrieta with

prior notice and an opportunity to respond to the misconduct charges. Thus, we


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                             -2-
remand this matter with directions to the district court to provide Mr. Arrieta with

an opportunity to respond to the misconduct findings.


                                          I.

      Mr. Arrieta was disbarred by the New Mexico Supreme Court in 1987 (after

being suspended in 1986), and he was reinstated to probationary active status in

May 2000. See Aplt. App. at 4, 7. Under the terms of the reinstatement order,

Mr. Arietta was prohibited from engaging in the “sole practice of law,” and he

was required to be supervised by an attorney selected by the state disciplinary

counsel. Id. at 1-2. For purposes of   Rios , Mr. Arietta’s supervising attorney was

Greg Valdez, and Mr. Arietta was an associate and employee of the Law Office of

Daniel L. Romero.   Id. at 12; Aplt. Br. at 26.

      In January 2000, Daniel Romero filed a complaint on behalf of the

plaintiffs in Rios. On September 11, 2000, Mr. Arrieta filed his entry of

appearance in Rios , and the signature block on the entry is under the heading

“Law Office of Daniel L. Romero.”      See R., Doc. 16. During this same time

period, Mr. Arrieta also entered his appearance in five other cases in the District

of New Mexico. Id. , Doc. 54 at 2.

      Mr. Arrieta claims that he called the clerk’s office in the District of New

Mexico after his reinstatement by the New Mexico Supreme Court and was told

that he needed only to pay an admission fee in order to be readmitted to the

                                          -3-
Federal Bar of the District of New Mexico.          1
                                                        See Aplt. Br. at 6. Mr. Arrieta

claims that he then paid the fee and “proceeded to practice before the federal

bench.” Id.

      At some point during the summer of 2000, Mr. Arrieta also filed an

application to be reinstated to the District of New Mexico’s Criminal Justice Act

Panel. In a letter dated September 17, 2000, the Chair of the CJA Committee

informed Mr. Arrieta that he could not be accepted to the panel “until he . . . is in

good standing with the New Mexico State Bar.” Aplt. App. at 6. In response to

the Chair’s letter, Mr. Arrieta submitted a certificate of good standing from the

New Mexico Supreme Court dated August 1, 2000 to Robert March, the Clerk of

the Court.   2
                 Id. at 7, 9. After receiving the certificate of good standing,


1
       Mr. Arrieta claims that he was initially admitted to the bar of the District of
New Mexico in the early-to-mid 1980s.     See Aplt. Br. at 8, 28-29. The District of
New Mexico has no record of Mr. Arrieta having been a member of its bar prior
to his disbarment, however, and Mr. Arrieta has not produced a certificate
confirming his admission. Nonetheless, because he has submitted Criminal
Justice Act vouchers showing that he was practicing in the District of New
Mexico prior to his disbarment, see Aplt. App. at 16-20, we will assume for
purposes of this appeal that: (1) Mr. Arrieta was formerly admitted to the Federal
Bar of the District of New Mexico; (2) he was automatically suspended from
practicing in the District of New Mexico after he was disbarred by the New
Mexico Supreme Court, see D.N.M. LR-Civ. 83.10(b) (2000); and (3) he was
required to apply for readmission to the Federal Bar of the District of New
Mexico after he was reinstated by the New Mexico Supreme Court,        see D.N.M.
LR-Civ. 83.10(c) (2000).
2
      The certificate of good standing stated that Mr. Arrieta was “Reinstated to
Probationary Status on 5/24/00 after 2/26/87 disbarment.” Aplt. App. at 7.

                                              -4-
Mr. March sent Mr. Arrieta a letter dated October 23, 2000, informing him that

“[t]he Active District Judges decided that you must complete your probationary

period with the New Mexico Supreme Court and, upon completion of that

requirement, you may apply for readmission to the Federal Bar and the [CJA]

Panel.” Id. at 8. Mr. Arrieta then sent Mr. March additional correspondence

requesting that he be readmitted to practice in the District of New Mexico.        Id. at

12. In response to the additional correspondence, Mr. March sent Mr. Arrieta a

letter dated November 17, 2000, informing him that “[t]he U.S. District Judges

met on November 8, 2000, to consider your request. By unanimous vote, the

Judges decided your suspension from all practice in this Court will be upheld.”

Id. at 15. Mr. March also informed Mr. Arrieta that “the Judges further ruled that

you not be allowed to practice       pro hac vice . Any cases in which you are still the

attorney of record or associated with another attorney of record, must be

reassigned immediately to an active member in good standing with the Bar of

the . . . District of New Mexico.”      Id.

       As of the end of January 2001, Mr. Arrieta had not filed a motion on his

own behalf to withdraw from      Rios . Instead, on January 31, 2001, Daniel Romero

filed a motion to withdraw as attorney of record for the plaintiffs, claiming that

he was downsizing his office and that plaintiffs wanted to retain other counsel,




                                              -5-
and Mr. Romero requested that Greg Valdez (Mr. Arrieta’s supervising attorney)

be substituted as counsel for plaintiffs.   See R., Doc. 32 at 1-2.

       A magistrate judge presided over     Rios with the consent of the parties under

28 U.S.C. § 636(c). On February 21, 2001, the magistrate judge entered an order

setting a telephonic motion hearing for March 12, 2001. The order stated that the

matters to be heard at the hearing were the “Order to Show Cause Why Case

should not be Dismissed (Doc. 29) and Plaintiffs’ . . . Motion to allow withdrawal

attorney Daniel L. Romero & to substitute attorney with attorney G. Greg Valdez.

(Doc. 32).” R., Doc. 47. The hearing was subsequently held before the

magistrate judge on March 12, and Mr. Arrieta and Mr. Valdez appeared in person

at the hearing.

       The first matter addressed by the magistrate judge at the hearing was

Mr. Arrieta’s status, and Mr. Arrieta acknowledged that he was not admitted to

practice in the District of New Mexico.     See Aplt. App. at 24. The magistrate

judge then inquired as to Mr. Arrieta’s status in the other District of New Mexico

cases in which he had entered his appearance. As discussed on the record at the

hearing, it was determined: (1) that one of the cases had settled and was finished;

(2) that Mr. Arrieta was still counsel of record in two of the cases; and (3) that

Mr. Arrieta was not sure whether he had withdrawn from one of the other cases.

Id. at 25-30. Following the discussion regarding the other cases, Mr. Arrieta


                                            -6-
agreed that he would withdraw from each of the cases, and it was also agreed that

he would withdraw from Rios . Id. at 35-36, 40-41.

          On March 14, 2001, the magistrate judge entered an order regarding the

motion to withdraw and substitute counsel. In the order, the magistrate judge

stated that “[a]lthough the motion to withdraw and substitute counsel will be

granted, the Court takes this opportunity to address Mr. Arrieta’s standing in

federal court as well as inconsistent representations made by Mr. Arrieta

regarding his ability to practice within this Court.” R., Doc. 54 at 1. The

magistrate judge then went on to review the cases that were discussed at the

hearing on March 12, and the judge found that Mr. Arrieta made “false

statements” at the hearing regarding his status in two of the cases.      Id.

at 3-4.

          In addition, with respect to   Rios , the magistrate judge found that “Mr.

Arrieta has been appearing in front of the court and signing pleadings, motions

and papers on behalf of his clients in clear violation of [Mr. March’s]

November 17th letter.”        Id. at 4. The magistrate judge also stated that Mr.

Arrieta’s conduct “may even violate the New Mexico Supreme Court’s

[Reinstatement] Order.”        Id. at 5. Finally, the magistrate judge ordered “that Mr.

Arrieta is removed as attorney for Plaintiffs effectively [sic] immediately,” and

the removal order was preceded by the following statements/findings:


                                               -7-
       Therefore, due to Mr. Arrieta’s blatant failure to abide by the rulings
       of this Court not to practice in federal court, his likely failure to
       abide by the Order of the New Mexico Supreme Court, his false
       statements with respect to his representations with other federal
       cases, and his apparent violation of disciplinary rule 17-212, I must
       remove Mr. Arrieta as attorney for the Plaintiffs. After receiving a
       letter from the Clerk of the Court and subsequently signing a
       pleading in this court, Mr. Arrieta’s behavior may even rise to the
       level of contempt.

Id. The magistrate judge then concluded his March 14 order by directing “that the

Clerk forward a copy of this order to the New Mexico Supreme Court

Disciplinary Board.”    Id.


                                             II.

       A final judgment has been entered in        Rios , and the case has been dismissed

with prejudice.   See R., Doc. 100. Consequently, as a threshold matter, we must

determine whether Mr. Arrieta has standing to independently pursue this appeal

and whether the appeal is moot.

       Because the magistrate judge’s March 14, 2001 order disqualified

Mr. Arrieta from representing the plaintiffs in      Rios based on specific findings of

attorney misconduct that could potentially harm his professional reputation, we

conclude that Mr. Arrieta has standing to independently challenge the misconduct

findings, and that the dismissal of   Rios did not moot his appeal.     See Weeks v.

Indep. Sch. Dist. No. I-89 , 230 F.3d 1201, 1207-08 (10th Cir. 2000) (holding that

an attorney has standing to independently appeal a disqualification order imposed

                                            -8-
as a sanction for misconduct where “a favorable court decision would likely

provide at least some redress from the injury from the sanction because it could

help ameliorate the damage to [the attorney’s] professional reputation”);     Johnson

v. Bd. of County Comm’rs,     85 F.3d 489, 492-93 (10th Cir. 1996) (addressing

mootness issue and holding “that settlement of an underlying case does not

preclude appellate review of an order disqualifying an attorney from further

representation insofar as that order rests on grounds that could harm [the

attorney’s] professional reputation”);   see also Butler v. Biocore Med. Tech., Inc.   ,

348 F.3d 1163, 1166-69 (10th Cir. 2003) (holding that an attorney may

independently appeal an order finding that the attorney engaged in misconduct

even if the order did not impose any sanction, monetary or otherwise, and noting

that an attorney’s professional reputation is his most important and valuable

asset).

          We also conclude that the magistrate judge violated Mr. Arrieta’s right to

procedural due process when he imposed the sanction of disqualification and

entered his misconduct findings without giving Mr. Arrieta prior notice and an

opportunity to respond to the misconduct charges.      See Kleiner v. First Nat’l Bank

of Atlanta , 751 F.2d 1193, 1211 (11th Cir. 1985) (holding that attorney “sanctions

must be imposed in accordance with the due process of law,” and that, unless

exigent circumstances exist, an attorney may not be disqualified from a case on


                                            -9-
the basis of misconduct without “an opportunity to be heard”);     cf. G.J.B. &

Assocs., Inc. v. Singleton,   913 F.2d 824, 830 (10th Cir. 1990) (noting that “[t]he

due process clause of the fifth amendment . . . requires that an attorney facing

sanctions in federal court be given notice and an opportunity to be heard,” and

holding that district court abused its discretion by imposing sanctions against an

attorney under Fed. R. Civ. P. 11 when the attorney “was given neither notice that

the court was considering Rule 11 sanctions, nor an opportunity to respond either

before or after their imposition”);   Mattox v. Disciplinary Panel of the United

States Dist. Court for the Dist. of Colo.   , 758 F.2d 1362, 1368-69 (10th Cir. 1985)

(holding that federal district court violated an attorney’s right to procedural due

process when it denied her application for readmission to the bar of the court

without giving her prior notice of the reasons for the denial and an opportunity to

respond).

       While Mr. Arrieta knew or should have known that his continued presence

as counsel in Rios was in direct violation of Mr. March’s November 17, 2000

letter, Mr. Arietta did not receive any notice prior to the hearing on March 12,

2001 that the magistrate judge was going to sanction him based on findings of

misconduct, and there were no discussions regarding sanctions or misconduct

findings at the hearing. Instead, it was simply agreed at the hearing that Mr.

Arrieta would withdraw from      Rios and the other cases discussed at the hearing.


                                            -10-
See Aplt. App. at 35-36, 40-41. Further, as the magistrate judge’s March 14,

2001 order clearly indicates, the magistrate judge decided to impose the removal

sanction based, in large part, on his specific finding that Mr. Arrieta made false

statements during the March 12 hearing.    See R., Doc. 54 at 3-5. Consequently,

we must remand this matter to the district court for the limited purpose of

providing Mr. Arrieta an opportunity to respond to the findings of misconduct in

the March 14 order.   3



      Finally, Mr. Arrieta is also seeking to litigate the issue of whether the

district court properly denied his application for readmission to the Federal Bar of

the District of New Mexico.    See Aplt. Br. at 10-17. Because Mr. Arrieta’s

challenges to the district court’s refusal to readmit him are beyond the scope of

Rios , this court has no jurisdiction to consider that aspect of his appeal. Thus, we

must dismiss Mr. Arrieta’s claims regarding the readmission process for lack of

jurisdiction.


3
        The district court will need to determine whether Mr. Arrieta is entitled
only to an opportunity to respond in writing to the misconduct findings or whether
it is necessary to conduct an evidentiary or oral hearing. We note, however, that
“[t]he right to respond does not necessarily require an adversarial, evidentiary
hearing.” FDIC v. Daily , 973 F.2d 1525, 1531 (10th Cir. 1992). As a result, we
have held in analogous cases involving attorney sanctions under Fed. R. Civ. P.
11 that an opportunity to respond in writing is sufficient to satisfy due process.
See, e.g., G.J.B. , 913 F.2d at 830 (noting that “prior to imposing fees and costs
upon an attorney for whatever reason, the district court should provide the
attorney with an opportunity to fully brief the issue. An oral or evidentiary
hearing . . . is not required.”).

                                          -11-
      This matter is REMANDED to the district court with directions to the court

to provide Mr. Arrieta with an opportunity to respond to the findings of

misconduct in the magistrate judge’s March 14, 2001 order. Mr. Arrieta’s claims

regarding the District of New Mexico’s readmission process are DISMISSED for

lack of jurisdiction.


                                                   Entered for the Court


                                                   Wade Brorby
                                                   Senior Circuit Judge




                                        -12-
