                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                           _______________

                            No. 95-30043
                          Summary Calendar
                           _______________


In The Matter Of:    SEALED APPELLANT,
                                             Appellant.

    - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                           _______________

                           No. 95-30166
                          Summary Calendar
                           _______________


In The Matter Of:    SEALED APPELLANT,
                                             Appellant.


        ____________________________________________________

        Appeals from the United States Disrict Court for the
                    Eastern District of Louisiana
                              (94-2935)
        _____________________________________________________

                         January 17, 1996
Before GARWOOD, WIENER and PARKER, Circuit Judges.*

GARWOOD, Circuit Judge:

       Appellant appeals his suspension from practice before the

United States District Court for the Eastern District of Louisiana

for a period of six months.     Because we find that the district

court did not abuse its discretion in suspending appellant, we

affirm.


*
      Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
                          Facts and Proceedings Below

     This appeal arises out of appellant’s suspension for a period

of six months from the practice of law before the United States

District Court for the Eastern District of Louisiana in accordance

with Rule    III     of    the   Eastern       District   Rules    of   Disciplinary

Enforcement.    Rule III (C)(1) provides for reciprocal disciplinary

proceedings in the district court following the suspension or

disbarment of an attorney before another federal or state court.

Because the district court’s disciplinary action was predicated on

appellant’s suspension by a state court, an examination of the

rather convoluted facts of the underlying state proceedings is

necessary to an understanding of the issues on appeal.

     Appellant       was    the    subject        of   two   state      disciplinary

proceedings.    The first proceeding led to a public reprimand being

issued to appellant.         Appellant’s actions during the pendency of

the initial disciplinary proceedings gave rise to one count of a

two count formal disciplinary charge brought against appellant

which led to his suspension for six months from practice before the

Louisiana    state    courts,     and   subsequently         led   to   his   instant

suspension for a like period from practice before the district

court.

     A.    State Disciplinary Proceedings

         In 1987, Henrietta Reed engaged Appellant to obtain past due

child support owed by her former husband. Appellant obtained a

judgment on behalf of        Reed which ordered payment of past due child

support in the amount of $311 as well as awarding $1,000 in


                                           2
attorney’s    fees.     Apparently   pursuant   to    a   memorandum   from

appellant to Reed, appellant received child support payments on

Reed’s behalf which he was then to distribute to her.            However,

appellant received payments totaling $2,879.25, but paid out only

$1,725.55 to Reed.       Reed discharged appellant and initiated a

complaint with the Louisiana State Bar Association.             Appellant

alleged in that proceeding that he was owed by Reed fees totaling

$6,513.

     On October 12, 1989, a hearing was held before the Committee

on Professional Responsibility.      It was alleged that appellant had

failed to promptly forward funds to a client, had improperly

commingled client funds, and had charged an unreasonable legal fee

for his services. At the hearing, appellant challenged allegations

that he had failed to promptly forward funds to a client and had

commingled client funds with his own by introducing the February 7,

1987 memorandum which he had sent to Reed which provided: “all

checks received pursuant to a judgment resulting from litigation

shall be sent to me for distribution.”        Appellant also introduced

a copy of the petition signed by Reed which requested a percentage

of her former spouse’s retirement pay as community property in

addition to back child support as evidence that he had provided

services beyond those described by Reed. Appellant introduced

sixty-three exhibits in all at the hearing.

     On November 22, 1989, appellant sent a letter to Mr. Fred G.

Ours, Assistant Counsel for the Louisiana State Bar Association,

withdrawing    all    demand   letters   to   Reed.        Appellant   was


                                     3
subsequently notified on March 30, 1990 that the Disciplinary Board

was planning to issue a Letter of Public Reprimand in the matter.

Appellant appealed this decision to the Louisiana Supreme Court on

April 12, 1990.     Meanwhile, appellant sent a letter to Reed dated

April 17, 1990 demanding payment of $3,185 of the $6,513 appellant

claimed he was originally owed, and subsequently filed suit to

collect the reduced amount on May 10, 1990. The Supreme Court

affirmed the Committee’s decision to issue a public reprimand on

May 25, 1990, and denied appellant’s petition to stay the issuance

of the reprimand on June 11, 1990.         The Letter of Public Reprimand

issued the following day.        Appellant then petitioned the Louisiana

Supreme   Court    for   rehearing     which   was    ultimately    denied   on

September 14, 1990.        Appellant voluntarily dismissed his suit

against Reed on October 17, 1990.

     A    second   disciplinary      proceeding      was   initiated   by    the

Disciplinary     Counsel   for   the   Louisiana     State   Bar   Association

through a two count formal charge filed on March 15, 1991.               Count

I alleged that appellant had violated the Rules of Professional

Conduct by bringing a claim in bad faith against Reed to collect a

portion of the fee that the Disciplinary Board had determined was

unreasonable.1     Specifically, appellant had informed the Bar that

the demand was withdrawn at the time that the Board was considering

disciplinary action against him only to assert a demand and bring



1
        The Committee on Professional Responsibility was renamed
the Disciplinary Board as the result of changes in Rule 19 of the
Rules of the Louisiana Supreme Court effective April 1, 1990.

                                       4
suit for a portion of the disputed fee once he was informed that a

public reprimand would issue.

     Count II involved an unrelated complaint against appellant

arising out of his representation of Mrs. Luitgardis Marie Tell

Wright in an estate matter.     Appellant handled the succession of

Wright’s late husband’s, and took possession of certain stock

certificates and title documents in order to prepare the succession

documents.   Appellant took possession of these documents in early

1987 and a Judgment of Possession placing these items in the

possession of Wright was signed on November 6, 1987.      However, a

fee dispute arose between appellant and Wright, and Wright sent a

letter on January 5, 1988 demanding the return of the documents.

Appellant responded by letter that “[i]t is customary to return

such property in person,” and that Wright should have her attorney

or representative contact appellant.        Appellant also informed

Wright that suit would be brought against her for the fees.        A

Notice of Privilege and Lien was filed with the Clerk of Court for

Jefferson Parish by Robert C. Evans in whose office appellant

worked.   A suit was also brought against Wright for the fees by the

Law Office of Robert C. Evans.        The formal charge alleged that

appellant had failed to promptly surrender property to a client at

the termination of representation as required by the Rules of

Professional Conduct.

     On July 24, 1991, a hearing was held before Hearing Committee

No. 11 of the Disciplinary Board for purposes of considering the

charges alleged against appellant.      The Hearing Committee issued


                                  5
findings of fact and conclusions which found that: (1) appellant

had not violated the Rules of Professional Conduct by bringing a

suit against Reed in bad faith; and (2) that appellant had failed

to promptly return property to a client as required by the Rules of

Professional Conduct. Therefore, the Hearing Committee recommended

that a public reprimand be issued on Count II.

      The Disciplinary Board issued its Report and Recommendation on

August 31, 1993.       The Board rejected the Hearing Committee’s

conclusion that appellant had not acted in bad faith in bringing

suit against Reed to collect the disputed fees.                 The Hearing

Committee had concluded that appellant was entitled to pursue his

action for fees until the disciplinary proceedings against him were

resolved.    However, the Board noted that appellant had written a

letter withdrawing his demand, and concluded that “[i]t was wrong

to threaten and file suit after purportedly withdrawing the demand

in   order   to   influence   the   disposition    of     the   disciplinary

proceeding.”       The Board concurred in the Hearing Committee’s

conclusion regarding Count II that appellant had violated the Rules

of Professional Conduct by failing to promptly return the disputed

documents    to   Wright.     Therefore,   the    Board    determined   that

appellant should be suspended from the practice of law for a period

of three months.

      On March 18, 1994, the Louisiana Supreme Court issued a per

curiam opinion accepting the findings of the Disciplinary Board,

but ordering a suspension of six months rather than the three




                                     6
months recommended by the Board.             See In re Forman, 634 So.2d 330

(La. 1994), cert. denied, 115 S. Ct. 207 (1994).

      B.    District Court Proceedings

      Appellant’s suspension by the Louisiana Supreme Court led to

reciprocal        disciplinary     proceedings      being    instituted   in   the

district court below.            The Rules of Disciplinary Enforcement for

the   Eastern       District      of   Louisiana     provide    for   reciprocal

disciplinary proceedings against attorneys admitted to practice

before the court who have been subjected to public discipline

before any other federal or state court.                Rule III (C)(1).       The

district court will impose “such discipline as the circumstances

warrant” unless the district court finds “upon the face of the

record     upon    which   the    discipline   in    another    jurisdiction   is

predicated it clearly appears”           that either the procedures in the

disciplining court were so lacking as to violate due process or

that the proof of misconduct was so weak that the district court

cannot accept it.          Rule III (C)(4)(a)-(b).          Otherwise, the other

court’s determination that misconduct occurred shall be conclusive

in the district court.           Rule III (C)(5).

      Upon the filing of a petition and copy of the disciplinary

order in the district court, the attorney is ordered to show cause

within 30 days after service why discipline should not be imposed.

Rule III (D)(3).           The attorney is then required to respond in

writing either admitting or denying the alleged misconduct, and

raising any matters in defense.           Rule III (D)(4).       The judge shall

then set a hearing if the attorney raises any issue of fact or


                                         7
wishes to be heard in mitigation.            Rule III (D)(5).     The judge then

makes written conclusions of law and findings of fact which are

submitted    to    the   court    en   banc     for    determination     of    final

discipline, if any, which is to be imposed.               Rule III (D)(6).

     In the present case, the filing of the Louisiana Supreme

Court’s suspension order in the district court caused the court to

issue an order to appellant to show cause within 30 days why he

should not be suspended from practice before the Eastern District.

Appellant timely filed a response.                  The district court held no

hearing     on    the    matter    prior       to    issuing   its    Report     and

Recommendation      because      the   court    determined     that    appellant’s

response had raised no issue of fact nor indicated any wish to be

heard in mitigation so as to trigger a hearing under Rule III

(D)(5).          The Report lays out the underlying facts and the

substance of appellant’s complaint in some detail before concluding

in rather summary fashion (one paragraph) that appellant raised no

fact issues, nor any procedural defect or infirmity of proof that

would prevent the court from relying on the state proceedings in

imposing its own discipline under Rule III (C)(4).                   Therefore the

district court recommended that Appellant be suspended for six

months. By minute entry signed December 9, 1994, the court sitting

en banc ordered appellant suspended for six months.                   This appeal

followed.

                                   Discussion

     Appellant’s claim on appeal is somewhat difficult to divine as

he has filed as his brief on appeal almost precisely the same


                                         8
document which he filed in response to the order to show cause                 in

the district court.          Appellant’s brief raises several alleged

constitutional defects in the state proceedings. Because the state

court judgment is not subject to collateral attack before this

Court,2 appellant’s complaint on appeal must be that the district

court erred in its determination that no constitutional defect

existed in the state proceedings which would prevent the district

court from    relying   on    those    proceedings    in   imposing    its    own

suspension order under Rule III.           We review disciplinary orders of

the district court for abuse of discretion.                American Airlines,

Inc. v. Allied Pilots Ass’n, 968 F.2d 523, 533 (5th Cir. 1992).

     In Selling v. Radford, 37 S. Ct. 377 (1917), the Supreme Court

announced    the   standard    which   a    federal   court   must    apply   in

reviewing a state attorney disciplinary proceeding before relying

on the state proceeding to impose reciprocal discipline on the

attorney in federal court:

     “[W]e should recognize the condition created by the
     judgment of the state court unless, from an intrinsic
     consideration of the state record, one or all of the
     following conditions should appear: 1. That the state
     procedure, from want of notice or opportunity to be
     heard, was wanting in due process; 2, that there was such
     an infirmity of proof as to facts found to have
     established the want of fair private and professional
     character as to give rise to a clear conviction on our
     part that we could not, consistently with our duty,
     accept as final the conclusion on that subject; or 3,
     that some other grave reason existed which should
     convince us that to allow the natural consequences of the

2
         Court of Appeals lacks authority to review state court
judgment ordering suspension of attorney.     The only available
avenue of appeal to attack such judgments is by certiorari to the
Supreme Court of the United States. Sawyer v. Overton, 595 F.2d
252 (5th Cir. 1979).

                                       9
       judgment to have their effect would conflict with the
       duty which rests upon us not to disbar except upon the
       conviction that, under the principles of right and
       justice, we were constrained so to do.” Id. at 379

Theard v. United States, 77 S.Ct. 1274 (1957).                        This Court adopted

the Selling standard in In re Wilkes, 494 F.2d 472, 476-77 (5th

Cir. 1974), and also applied it in In re Dawson, 609 F.2d 1139,

1142-43     (5th     Cir.    1980).            The        first     two    prongs    of    the

Selling     standard        are        incorporated          into      Eastern       District

Disciplinary Rule III (C)(4)(a)-(b) at issue in the present case.

       Appellant first argues that the letter of public reprimand

issued on June 12, 1990, particularly the finding that Appellant

had charged an excessive fee, operated to deprive him of due

process in various ways. Specifically, appellant contends that the

letter of public reprimand: (1) failed to discuss any of the

factors     listed     in    Rule        1.5        of     the     Louisiana     State     Bar

Associations’s       Rules        of    Professional             Conduct    regarding      the

reasonableness of attorney’s fees; (2) did not specify the amount

by which the fee was excessive; (3) failed to show any relationship

between the amount of the fee and the value of Reed’s community

property right in her former husband’s retirement pay; and (4)

formed the basis of the second disciplinary action for bringing

suit   in   bad    faith     against       Reed          despite    the    absence    of   any

indication as to the amount by which the fee was excessive.

       These claims are without merit.                       The first three of these

claims are undercut by the fact that correspondence between the

Disciplinary Board and appellant expressly stated that appellant’s

fee was excessive because it exceeded the amount awarded by the

                                               10
court in violation of La. R.S. 9:305.3           In particular, the letter

from the Assistant Counsel to appellant stated:

      “That La. R.S. 9:305 provides that when a court renders
      a judgment to make past due child support executory, the
      court shall award attorney’s fees. The reason for the
      awarding of attorney’s fees in such matters is so that
      the full amount of the past due child support is used for
      the benefit of the child. The court in Ms. Reed’s case
      awarded an attorney’s fee of $1,000.00. That you have
      claimed attorney’s fees in the amount of $6,513.00 in
      this matter.”

Therefore, Appellant was clearly apprised of the fact that the

Disciplinary   Board   considered      any    amount      over   $1,000   to    be

excessive. Appellant’s fourth argument fails because it is clear

from the record that he was sanctioned for bringing suit in bad

faith at least partly because he had brought suit after informing

the Disciplinary Board that he had withdrawn his demand to Reed in

an apparent effort to influence the outcome of pending disciplinary

proceedings, and not simply because he sought to obtain some

portion of the disputed fee.

      Appellant then raises various claimed procedural defects in

the   disciplinary   hearing   held    October      12,   1989.4     Under     the

circumstances,   these   allegations         make   out    no    constitutional

3
       This section has since been repealed by the Louisiana state
legislature effective January 1, 1991. However, the statute was in
effect at the time that appellant handled the matter for Reed and
at the time that the letter of public reprimand was issued.
4
         Specifically, appellant claims: (1) he did not have                   the
right to take Mrs. Reed’s deposition before the hearing; (2) he                did
not have the right to a pre-hearing conference to clarify                      the
issues;(3) the hearing lasted only two hours; (4) he was                       not
permitted to individually introduce and explain all of                         his
exhibits.



                                      11
deprivation.    Procedural due process requires that an attorney be

given fair notice of the charges against him and an opportunity to

be heard in an attorney disciplinary proceeding.               In re Ruffalo, 88

S.Ct. 1222, 1226 (1968).          The record reflects that appellant was

afforded such an opportunity in the case at bar.                        Appellant

participated in a hearing before the state disciplinary body and

was allowed to introduce evidence in his defense.                     Under these

facts, that he was not allowed to introduce and explain each of his

63   exhibits   individually      is    not   violative   of    procedural     due

process.   United States v. Engstrom, 16 F.3d 1006, 1012 (9th Cir.

1994) (procedural due process does not require that attorney be

allowed to present all evidence at evidentiary hearing in attorney

disciplinary proceeding, but only notice and opportunity to be

heard).

      Appellant next asserts that the Louisiana Supreme Court’s

order disciplining appellant for bringing suit against Reed in bad

faith denied appellant the exercise of his right of access to the

courts in violation of Article I,              Section 22 of the Louisiana

Constitution    of   1974   and    of    Article   IV,    and   the    First   and

Fourteenth Amendments of the United States Constitution. The power

of both state and federal courts to discipline members of their

respective bars is so well-established as to be beyond dispute.                 In

an analogous context, the Louisiana Supreme Court has suggested

that the law protects a person’s right of access to the courts

under the Louisiana Constitution “when they act in good faith upon

reasonable grounds in commencing either a civil or a criminal


                                        12
proceeding.”      Robinson v. Goudchaux’s, 307 So.2d 287, 289 (La.

1975) (emphasis added) (malicious prosecution).             Implicit in this

statement is the notion that the right of access to the courts is

subject to abuse, and the law affords no protection to persons

bringing suit in bad faith.            Appellant cites no authority to

suggest that a different result obtains under the United States

Constitution.

      Turning now to the count respecting Wright, appellant contends

that: (1) the Louisiana Supreme Court’s suspension order was

violative    of   due   process    because    it    penalized     appellant   for

exercising his constitutionally protected property right to assert

an attorney’s lien for fees on Wright’s property; (2) the Louisiana

Supreme Court’s summary rejection of appellant’s claim of res

judicata violated both substantive and procedural due process; and

(3)   Rule   1.16(d)    of   the   Rules     of    Professional    Conduct    was

unconstitutionally vague because it failed to specifically provide

that an attorney was prohibited from holding a client’s property

against which a lien had been filed until the client posted a

security bond.     We address these complaints seriatim.

      Leaving aside the question of whether appellant was entitled

to assert a lien for fees in the first place, he makes out no

constitutional violation because the lien which he filed did not

entitle him to retain Wright’s property.             Louisiana law recognizes

two types of attorneys’ liens: (1) the charging lien embodied in

LSA-R.S. 9:5001 which gives an attorney “the right to compensation

for services from the funds or judgment which the attorney has


                                      13
recovered for the client;” and (2) the retaining lien found at LSA-

C.C. 3022 and 3023 which gives an attorney the “right to retain

possession of a client’s documents . . . until paid for services.”

Bd. of Trustees of the East Baton Rouge Mortgage Fin. Auth. v. All

Taxpayers, 361 So.2d 292, 295 (La. Ct. App. 1978).               Appellant’s

notice of privilege was filed under the former provision.                 As a

result, appellant had no valid lien which would entitle him to

retain Wright’s property. Appellant was disciplined for wrongfully

retaining a client’s property not for exercising his right to

obtain a lien for disputed attorneys’ fees.5

     Appellant bases his claim of res judicata on the fact that a

letter dated   March   24,    1988   indicated   that    the    Committee    on

Professional   Responsibility        had   concluded     that     there     was

insufficient evidence to support Wright’s allegations, yet the same

underlying events led to his suspension as the result of charges

brought against him by the Disciplinary Counsel on March 15, 1991.

Appellant   claims   that    the   Louisiana   Supreme    Court’s    summary

rejection of his claim of res judicata deprived him of both

substantive and procedural due process.            Appellant bases his

substantive due process argument on the Supreme Court’s decision in

Western Union Co. v. Pennsylvania, 82 S.Ct. 199 (1961), which he

claims stands for the proposition that res judicata is included


5
        The Hearing Committee concluded that appellant’s “failure
to return the documents was not merely an oversight but was in fact
intentional upon the belief, however erroneous, that there was a
legitimate privilege on the documents and property pursuant to R.S.
9:5001 and that this privilege allowed the retaining of documents
and property.”

                                     14
within substantive due process. Appellant bases his procedural due

process claim on the Louisiana Supreme Court’s summary rejection of

his claim of res judicata and failure to follow its own rules which

recognize that the Louisiana Code of Civil Procedure applies in

disciplinary proceedings except where specifically excluded.                      See

La. Sup. Ct. Rule XIX, §18.

     Appellant cites no Louisiana authority indicating that the

Committee on Professional Responsibility’s investigatory decisions

are to be given res judicata effect nor do we find any such

authority. Indeed, we would be surprised to find such authority as

the doctrine      of   res    judicata    clearly   requires      a    prior    final

judgment.     See, e.g., Steele v. Compass Welding Co., Inc., 590

So.2d 1235, 1238 (La. Ct. App. 1991).             Yet the Louisiana State Bar

Association’s disciplinary body has no authority to issue a final

judgment, but rather recommends appropriate discipline to the

Louisiana Supreme Court which acts as the trier of fact and

conducts an independent review.                Louisiana State Bar Ass’n v.

Boutall,    597    So.2d     444,   445    (La.   1992).     It       follows   that

recommendations,       much    less   investigatory        decisions,      of     the

Committee   on    Professional      Responsibility     are   not       entitled   to

preclusive effect. We find no constitutional flaw in the Louisiana

Supreme Court’s summary rejection of such a patently meritless

contention.       Furthermore, since appellant had no arguably valid

claim of res judicata the Louisiana Supreme Court did not fail to

observe its own rules so as to deprive appellant of his right to

procedural due process.


                                          15
     Because appellant had no lien which would entitle him to

retain Wright’s property, we need not address his claim that Rule

1.16(d) of the Rules of Professional Conduct was void for vagueness

for failing to specifically provide that an attorney could not

retain a client’s property pursuant to a lien.

     Having found no defect in either notice and opportunity to be

heard or in the reliability of the proof in the state proceedings,

we find no abuse of discretion on the part of the district court in

relying on the state disciplinary proceedings in imposing its

suspension order.

     Accordingly the district court’s order is AFFIRMED.




                                16
