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In re Shieh

October 07, 1999


Terry, Farrell, and Ruiz, Associate Judges.

The opinion of the court was delivered by: Farrell, Associate Judge

Argued September 14, 1999

Over a period of three years, respondent, a member of the Bars of California, New York, and the District of Columbia, "was at war with the courts, individual Judges, his former law firms and attorneys who were his ex-employees." As a result, according to the California State Bar Court, he established himself as "the benchmark by which all vexatious litigants in the state of California will be Judged." Concluding that "[n]othing the attorney discipline system can do will prevent respondent from continuing to abuse the legal system as a litigant, if he so chooses," the California court nonetheless determined that it must "at least prevent him from continuing his abusive course of conduct under the cloak of authority conferred on him by his membership in the bar," *fn1 and it recommended his disbarrment. The Supreme Court of California disbarred him. New York followed suit reciprocally on the basis of the California order. The matter is before this court on reciprocal discipline, *fn2 specifically on the recommendation of the Board on Professional Responsibility ("the Board") that respondent not be disbarred but, rather, that he be suspended from the practice of law in the District of Columbia for two years and required to show fitness to resume practice. Bar Counsel objects to the downward departure from the sanction ordered by California. For his part, respondent contends that the manner in which California imposed discipline - in part by way of a default adjudication - violated due process, thus rendering its decision an invalid basis for reciprocal discipline. See D.C. Bar Rule XI, Sec. 11 (c)(1).

We reject respondent's procedural challenge, and we order respondent disbarred. The Board agreed with Bar Counsel that respondent's "disregard for the administration of Justice surpasses our disciplinary experience"; its refusal to recommend disbarrment stemmed chiefly from what it considered to be a lack of "unequivocal direction from th[is c]court" as to the proper sanction for conduct prejudicial to the administration of Justice unaccompanied by other misconduct such as dishonesty or neglect of client affairs. If our decision that follows does not supply that direction for most, or even many, future disciplinary matters of this kind, it is only because respondent's abuse of the legal system in California may well be in a class by itself. Not to disbar him would defile that system and bring deserved discredit upon the authority by which he has been allowed to practice law.


The sheer volume of respondent's abusive filings and other sanctioned behavior makes synopsis of it in a few paragraphs impossible. *fn3 We therefore attach the State Bar Court's opinion hereto as an appendix. It reveals a history of lawsuits (many duplicative), frivolous motions (including for removal of cases to federal court and recusal of Judges), meritless appeals, *fn4 and disobedience of court orders, resulting at one point in his conviction on three counts of criminal contempt for which he escaped punishment by fleeing to his native Taiwan, where he remains a fugitive from Justice in California. As the State Bar Court summed up:

There was a pattern of repeated abuse of the judicial process and multiple acts of wrongdoing. Significant harm resulted to the many defendants involved in Respondent's vexatious litigation "war" who, because of Respondent's flight and concealment of assets, will never recover the sanctions and costs owed to them. The judicial system was stymied by Respondent's wasteful and meritless litigation, and he proceeded undeterred by enormous sanctions and stay orders. His actions were in bad faith and motivated by base and improper aims. His tactics as a whole are devoid of any consideration for the victims of his "war." He is defiant and unrepentant. [Citations omitted.]


Respondent contends that the California proceedings resulting in his disbarrment were "so lacking in notice or opportunity to be heard as to constitute a deprivation of due process." D.C. Bar Rule XI, § 11 (c)(1). He cites the failure of the State Bar to serve him with the Notice to Show Cause (the initiating document equivalent to a petition for discipline under D.C. Bar Rule XI, § 8 (c)) in Taiwan, including its failure to follow up after an unsuccessful first mailing or to engage process servers in Taiwan. The result of the failure to effect service, respondent argues, was that California treated him in default and so deemed the facts alleged in the Notice to Show Cause to be admitted. Moreover, it resulted in the absence of an evidentiary hearing and thus a disbarrment entered without sworn testimony, itself, in respondent's view, a reason to disregard the California discipline. See D.C. Bar Rule XI, § 11 (c)(2) ("infirmity of proof" grounds for refusing to impose reciprocal discipline); In re Williams, 464 A.2d 115, 119 (D.C. 1983) ("the hearing of evidence by the [Hearing] Committee was a legal prerequisite to its findings").

We begin by noting the obvious connection between the claimed failure to serve respondent and the fact, found by the California court, that six months earlier he had fled to Taiwan to avoid criminal sentencing and remained there at the time of the disciplinary proceeding. California had only a post office box in Taiwan as respondent's latest address shown in Bar records; and although he initiated phone calls to Bar officials from Taiwan, he refused to give them his telephone number. The express mailing to him with return receipt requested, sufficient under California law, was unsuccessful since apparently the box rental had been terminated. The Board here concluded that respondent had "either failed or refused to accept service." Although respondent contends there is no record support for this suggestion that he purposely avoided service, his flight from the jurisdiction provides support for the inference that that is indeed what he was doing.

In any case, we agree with the Board's rejection of respondent's due process argument because he had actual notice of the California disciplinary proceedings and adequate opportunity to appear and contest the charges. First, respondent concedes that he learned by telephone three months before the charges were filed of the State Bar's intent to file them if he did not resign. Certainly that provided him with an opportunity to learn the nature of the proposed charges and, perhaps more importantly, with notice of the need to insure that he received any subsequent written communications from the state Bar directed to him. Second, after the Notice to Show Cause was filed and he did not respond, the State Bar filed a written motion for entry of default which warned him that disbarrment was being sought and that default would be entered unless he filed a timely response. Respondent does not dispute that he learned of this default notice and did not immediately respond to it; instead he attempted to remove the proceedings to federal district court. Only when the federal court summarily remanded the case to the State Bar Court - a month after the default notice had been sent - was default entered, and by that time he still had not responded to the charges or taken steps to overcome his claimed ignorance of their nature. Finally, California law affords relief from an entered default upon a showing of (inter alia) reason for the failure to respond and an offer of proof of facts going to the merits and/or mitigation. Cal. State Bar Rule 203 (c)(4). Although respondent moved to vacate the default, he made neither of these showings, as the State Bar Court found. Respondent simply has not demonstrated that he lacked notice of and a fair opportunity to defend against the disciplinary charges.

Neither are we persuaded by his argument that when the State Bar Court then proceeded on the basis of the default, the resulting absence of sworn testimony resulted in an "infirmity of proof" undermining the California discipline. D.C. Bar Rule XI, § 11 (c)(2). The decisive consideration here, as the Board found, was that "[t]he State Bar Court based its decision on both the facts deemed to have been admitted by Respondent's default and on the additional documentary evidence submitted by the State Bar - 65 binders of documentary evidence" (emphasis by the Board). Respondent argues that these documents -consisting in large part of public court records swollen with respondent's filings - could not answer the "central factual issue" of whether he, rather than the attorneys routinely representing him, should be held responsible for the abusive filings and other vexatious litigation tactics that resulted in discipline. That question, however, has been resolved against respondent over and over again by the California courts, which repeatedly sanctioned him individually - either apart from and more seriously than his attorneys, or "jointly and severally" with them - for litigation abuses. The California Bar Court took special note of the "[t]hree tactics" by which respondent "direct[ed] his attorneys." And in August 1993 the California Court of Appeals had addressed this issue directly in holding respondent to be "a vexatious litigant" under California law (who therefore could be barred from filing new litigation without leave of court) despite the fact that he had appeared in both pro se and represented capacities:

It is apparent from syntax, grammar, style and tone that, both in the trial courts and in this court, many - if not most - of the pleadings and other documents filed by Shieh or on his behalf have been written by the same person. This is the case even though Shieh has filed many of the initial pleadings in propria persona and then associated in co-counsel or substituted in a variety of replacement counsel, some of whom in turn become defendants in new litigation Shieh initiates. It is patently obvious that every writ petition, notice of appeal, appellant's brief and opposition to orders to show cause filed in this division has been drafted by the same hand, even though Shieh ostensibly has appeared in propria persona and through two separate attorneys . . . .

In short, it is clear that Shieh does not engage attorneys as neutral assessors of his claims, bound by ethical considerations not to pursue unmeritorious or frivolous matters on behalf of a prospective client. Rather, these attorneys who ...

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