4 NICS App. 111, IN THE MATTER OF ROBERTSON (September 1996)
IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS
HOOPA VALLEY INDIAN RESERVATION
HOOPA, CALIFORNIA
In the Matter of Dario F. Robertson
NO. C-96-019 (September 9, 1996)
SUMMARY
Appeal of trial court order which found Appellant had been practicing law on the Hoopa Valley Indian Reservation without having been admitted to the Tribal Bar. Appellant had requested and received an “immediate hearing” to consider his admission to the Tribal Bar. When Appellant missed the hearing, he requested a de novo hearing on the merits, which the trial court denied. Finding that in this matter procedural due process does not require the grant of such a hearing, and further finding that the tribal judiciary has the authority to regulate attorneys and non-attorneys practicing law on the reservation, we affirm.
FULL TEXT
Before: Elbridge Coochise, Chief Justice; Charles R. Hostnik, Justice; Douglas W. Hutchinson, Justice.
Appearances: Dario F. Robertson, Appellant, on his own behalf; Bruce J. Friedman, Senior Tribal Attorney, on behalf of Respondent Hoopa Valley Indian Tribe.
Hostnik, J.:
This matter came before the Hoopa Valley Tribal Court of Appeals pursuant to Appellant’s Notice of Appeal filed on April 8, 1996 and amended on April 9, 1996. Mr. Robertson appeals the April 4, 1996 Order of the Hoopa Valley Tribal Court. That Order found that Mr. Robertson had been practicing law on the Hoopa Valley Indian Reservation prior to March 4, 1996 and ordered that Mr. Robertson be admitted to the Tribal Court bar. The Trial Court further ordered that its April 4, 1996 Order be placed in Mr. Robertson’s Hoopa Bar records and be accessible to the public.
I. JURISDICTION
This Court has personal jurisdiction over Appellant because he has conducted business on the Hoopa Valley Indian Reservation and is therefore deemed to have consented to the jurisdiction of this Tribal Court. The act which is the subject of this appeal occurred within the exterior boundaries of the Hoopa Valley Indian Reservation, giving rise to territorial jurisdiction. This Court
4 NICS App. 111, IN THE MATTER OF ROBERTSON (September 1996) p. 112
has subject matter jurisdiction over this matter pursuant to Title I, Chapter 1, § 1.04 of the Hoopa Valley Tribal Code.
II. FACTS
On February 27, 1996, Bruce J. Friedman, senior tribal attorney for the Hoopa Valley Tribe, filed a complaint against Dario F. Robertson alleging that Mr. Robertson was practicing law in the Hoopa Valley Tribal Court without having been admitted to the Tribal Court bar. The complaint alleges that, with regard to a separate proceeding before the Tribal Employments Rights Commission (TERO Commission), Mr. Robertson was "intentionally misleading the court" by stating that he was merely assisting his client and not practicing law.
On or about February 27, 1996, Appellant met with Chief Judge Mike Ross in chambers to request an immediate hearing on the complaint. The Tribe’s attorney was not present at this meeting with the judge. After discussing various dates, Judge Ross and Appellant agreed upon a hearing date.
On February 28, 1996, the court clerk mailed a letter to the parties, notifying them that at 10:00 a.m. on Monday, March 4, 1996 the trial court would hold a hearing to determine whether to admit Mr. Robertson to the Tribal bar. On March 4, 1996 at 10:30 a.m. the Tribal attorney appeared for the scheduled hearing. After waiting 30 minutes for Mr. Robertson to arrive, Judge Ross proceeded to hear the matter in his absence.
On March 5, 1996, Mr. Robertson filed a Request for New Hearing, stating that on the afternoon of March 4, 1996, he received the letter from the Hoopa Valley Tribal Court, dated February 28, 1996, informing him that the hearing was to take place on March 4, 1996. Mr. Robertson stated in his Request that he believed the hearing had been scheduled to take place on March 5, 1996 at 10:00 a.m.
Although there was an apparent misunderstanding regarding the hearing date, the parties admit that the matter had been scheduled pursuant to Mr. Robertson’s request for an “immediate” hearing. Mr. Robertson alleged that he had been denied due process because the letter did not comply with the notice requirements of Court Rule 12(D), which requires that notice of hearings must be provided “at least five (5) days in advance.” Mr. Robertson’s request for an immediate hearing is inconsistent with, and constitutes a waiver of, the minimum notice requirement.
In a March 11, 1996 letter, the Hoopa Valley Tribal Court denied Mr. Robertson’s request for a new hearing. In the same letter, however, the trial court invited Mr. Robertson to submit “any input on this matter prior to March 20, 1996.” Further, the trial court gave Mr. Robertson permission to join the Hoopa Tribal Court Bar upon taking the Oath and paying bar fees.
4 NICS App. 111, IN THE MATTER OF ROBERTSON (September 1996) p. 113
On March 11, 1996, Mr. Robertson submitted a Brief in Support of the Admission of Dario Robertson, wherein he requested the Court fully exonerate him of all allegations of misconduct and immediately permit him to apply for admission to the Hoopa Tribal Court Bar. Mr. Robertson further requested: (1) that the Trial Court reprimand Mr. Friedman for filing a frivolous complaint, and (2) award, as a punitive sanction against complainant, reasonable attorney fees for the time spent preparing his defense to the allegedly frivolous charges against him.
Mr. Robertson was, in fact, sworn in to the Hoopa Valley Tribal Court Bar on March 14, 1996. On March 19, 1996 he moved to disqualify Judge Ross from hearing the matter. Mr. Robertson’s motion alleges that Judge Ross is “bias[ed] . . . [and] unqualified and ineligible to decide the complex issue of professional responsibility. . .” in this case.
In its April 4, 1996 Order the trial court found that Mr. Robertson had engaged in the practice of law on the Hoopa Valley Indian Reservation and that he had made “knowingly inaccurate statements to the Tribal Court.” The trial court ordered that Mr. Robertson “be admitted to the Hoopa Bar. . . .” [Emphasis added]. The trial court further ordered that the April 4, 1996 Order be placed in Mr. Robertson’s Hoopa Bar records and be accessible to the public.
Mr. Robertson filed his Notice of Appeal on April 8, 1996 and filed an Amended Notice of Appeal on April 9, 1996. This Court accepted the appeal on April 19, 1996. Oral arguments were held on May 21, 1996.
III. ISSUES ON APPEAL
In his Notice of Appeal, Mr. Robertson lists several grounds for his appeal. Those grounds may be distilled into the following issues:
1) Was Appellant denied due process by the trial court’s failure to hold a hearing prior to issuing its April 4, 1996 Order?
2) Does the Tribal judiciary have legal authority to regulate attorneys or non-attorneys practicing law outside of Tribal Court on the Hoopa Valley Indian Reservation?
3) Is the judgment of the trial court arbitrary, capricious, or unsupported by the law and applicable facts?
IV. DISCUSSION
It is important to note at the outset that this appeal originated as a complaint against Mr. Robertson for allegedly engaging in the unauthorized practice of law. Pursuant to the complaint, the parties’ requested that the trial court hold a hearing to determine whether Mr. Robertson should be
4 NICS App. 111, IN THE MATTER OF ROBERTSON (September 1996) p. 114
admitted to the Tribal Court bar.
The trial court held a hearing. Due to an apparent miscommunication regarding the date, Mr. Robertson did not attend that hearing. Nevertheless, Mr. Robertson was given the opportunity to submit written arguments before the trial court rendered its opinion. Mr. Robertson availed himself of this opportunity by submitting his Brief in Support of [his] Admission. He was admitted to the Tribal Court bar less than one week later.
A. No Denial of Due Process
Appellant alleges that the trial court deprived him of due process when it failed to grant him a de novo hearing on the merits. Both the Hoopa Valley Tribal Constitution and the Indian Civil Rights Act of 1968 prohibit a Tribal government from “deny[ing] to any person within its jurisdiction the equal protection of its law or depriv[ing] any person of liberty or property without due process of law.” Hoopa Valley Tribal Constitution, art. VIII, § 1(h); Indian Civil Rights Act of 1968, 25 U.S.C. § 1302(8).
The Court uses a two-step analysis in determining whether procedural due process has been denied. First, we consider whether a protected “liberty” or “property” interest has been impaired. Second, we must determine what procedures are due.
The interests Appellant claims have been impaired are (1) his ability to practice law in the Hoopa Valley Tribal Courts and (2) his community standing and reputation for honor and integrity. Regarding Appellant’s first claim, he has been admitted to the Tribal bar; therefore, the issue regarding his ability to practice in the tribal court is moot. Regarding Appellant’s second claim, we need not reach the issue of whether Appellant’s “standing and association . . . in his community” are constitutionally protected interests because we find that procedural due process has been satisfied.
Appellant claims that he was denied due process when the Trial Court refused to grant him a de novo hearing on the merits. The minimum requirements of due process are some form of notice and an opportunity to be heard. The opportunity to be heard may include, but does not require, the right to present oral argument. Appellant concedes as much in his opening brief where he states that he was entitled to “notice and a fair opportunity to respond.” Appellant’s Brief at 13. It is well within the discretion of the court to determine whether it will hear oral arguments in a pending matter.
Appellant had a fair opportunity to respond to the charges against him. At the time the Trial Court denied his request for a new hearing, it allowed him to submit a written brief in support of his position. Appellant took full advantage of that opportunity and submitted a twenty-page brief in his defense and in support of his admission to the Tribal bar. Therefore, Appellant had a meaningful opportunity to present his evidence before the Trial Court rendered its decision.
4 NICS App. 111, IN THE MATTER OF ROBERTSON (September 1996) p. 115
Furthermore, procedural due process does not require that the court in all instances hold an adversary, judicial-type hearing, either before or after deprivation of a protected liberty or property interest. Matthews v. Eldridge, 424 U.S. 319 (1976). Since filing his Notice of Appeal, Appellant has had ample opportunity to present his case, both in writing and during oral argument, to this Court of Appeals.
This Court finds that due process requirements have been satisfied. The judgment of the Trial Court will not be reversed on procedural due process grounds.
B. Tribe’s Regulatory Authority
Prior to March 3, 1994, Title 1, chapter 4.0 governed the regulation of spokespersons on the Hoopa Valley reservation, and governed admission requirements to the Tribal Court Bar. Section 1.4.03 sets forth a Spokesperson’s Oath, which all persons seeking admission to the Tribal Court Bar were required to take. Any violations of that Spokesperson’s Oath subjected a spokesperson to disciplinary proceedings under §§ 1.4.06 and 1.4.07 of the Hoopa Valley Tribal Code.
Under these Tribal Code sections the application of the code provisions was limited to persons assisting others in presenting a case in the Hoopa Valley Tribal Court. See § 1.4.01. Spokespersons need not be attorneys. Therefore both attorneys and non-attorneys were regulated under Title 1, chapter 4 of the Hoopa Valley Code.
Whether the Hoopa Valley Tribal Court had inherent authority to regulate attorneys or non-attorneys practicing law outside of Tribal Court on the Hoopa Valley Reservation is an issue we need not reach. On March 3, 1994 the Hoopa Valley Tribal Council passed a Professional Ethics Code for Spokespersons and Attorneys as Ordinance Number 94-1. This was codified as Title 32 of the Hoopa Valley Tribal Code. This appeal raises issues of first impression concerning the construction and scope of the Ethics Code as applied to individuals practicing law on the Hoopa Valley reservation.
The Ethics Code is clearly intended to be broadly construed to regulate the conduct of those practicing law on the Hoopa Valley reservation or otherwise within the jurisdiction of the Hoopa Valley Tribal Court:
The purpose of this Ordinance is to exercise comprehensive Tribal regulatory authority over the ethical conduct of spokespersons and attorneys practicing within the jurisdiction of the Hoopa Valley Tribal Court, as set forth below.
Ordinance No. 1-94, p. 2, § 32.0.2. Dario Robertson is clearly an “attorney” as that word is defined by the Ethics Code. See Ordinance No. 1-94, p. 4, § 32.4.1.
4 NICS App. 111, IN THE MATTER OF ROBERTSON (September 1996) p. 116
It is undisputed in this case that Mr. Robertson was representing a client in an administrative proceeding before an agency of the Hoopa Valley Tribe prior to being admitted to the Tribal Court Bar. Although it can be argued that Title 1, Chapter 4 only applies to persons who practice law in the Hoopa Valley Tribal Court, it is clear that under the 1994 Ethics Code all practice of law on the Hoopa Valley Reservation is now regulated. As soon as an attorney accepts a case on the reservation, and practices law in any capacity, he is subject to the Ethics Code. See Ordinance No. 1-94, pp. 2-3, § 32.1.1; especially § 32.1.1 (a).
The Ethics Code is to be read in conjunction with Title 1, § 1.4 governing the regulation of spokespersons in Tribal Court. See Ordinance No. 1-94, pp. 3-4, § 2.2.1. In the event of any conflict between those regulatory schemes, the Ethics Code is to prevail. This extends not only to direct conflicts in specific requirements, but also extends to conflicts with “the spirit and purposes of this Code of Professional Ethics for Spokespersons and Attorneys.” § 32.2.1 (emphasis added). This language refers the reader back to the comprehensive purpose statement contained in § 32.0.2 of the Ethics Code.
It is clear that the Tribal Court is designed to be the regulating mechanism for disciplinary purposes, much like state bar associations charged with the responsibility of regulating and disciplining attorneys for violations of professional ethics:
BE IT FURTHER ORDAINED THAT: The Hoopa Valley Tribal Court will have regulatory authority governing the ethical conduct of all spokespersons or attorneys practicing within the jurisdiction of the Tribal Court in order to properly regulate, manage, and provide for the ethical conduct of all spokespersons and attorneys pursuant to the provisions of the following Code . . .
Ordinance No. 1-94, p. 2. That regulation is done by requiring spokespersons and attorneys who desire to practice law to first be admitted to the Tribal Court Bar, just as it is required that an attorney be admitted to the state bar before he or she is permitted to practice law in that state, whether that practice of law be in a state court, before an administrative body, or confined to an office practice within the jurisdiction of that state. If admission to the bar was not required, then Rule 1.0 (c) of the Rules of Professional Conduct adopted under Ordinance No. 1-94 would make no sense in referring to the Hoopa Tribal bar, rather than the Hoopa Tribal Court:
In the case of any willful breach of these rules or misconduct by an attorney practicing before the Hoopa Tribal Bar, the Hoopa Tribal Court reserves the right to notify the appropriate state bar association of the results of any disciplinary action for any misconduct or breach of these rules.
Ordinance No. 1-94, p. 7, § 32.5, Rule 1.0 (c). Application of the Ethics Code to the practice of law, reservation-wide, not just in Tribal Court, is in conformance with the broad purpose and clear statutory intent of Ordinance No. 1-94.
4 NICS App. 111, IN THE MATTER OF ROBERTSON (September 1996) p. 117
The Appellant’s argument that he was practicing law before an administrative agency, and not before the Tribal Court therefore misses the point. The Tribe is correct in pointing out that the issue is not which body before whom the practice of law occurs. The issue is that an individual is practicing law on the Hoopa Valley Reservation. By doing so Appellant comes within the ambit of the Professional Ethics Code, and is subject to all provisions of that Ethics Code. Appellant therefore must become a member of the Tribal Court Bar before practicing law on the Hoopa Valley reservation.
We note that in his order of April 4, 1996 the Trial Judge stated as follows:
The Tribal Court turns to the crucial issue of the manner in which it is to carry out its “regulatory authority governing the ethical conduct of all . . . attorneys practicing within the jurisdiction of the Tribal Court . . .” The tool plainly at hand to assure that unethical attorneys practicing law on the Reservation before administrative components of Tribal government do not elude the reach of the Tribal Court, is to affirm that attorneys, precedent to practicing law here, shall seek to be admitted to the Hoopa Bar.
. . .
Tribal regulatory authority respecting the “ethical conduct of all spokespersons or attorneys practicing within the jurisdiction of the Tribal Court” would be somewhat less than “comprehensive” if attorneys practicing law before a Tribal administrative component were past the reach of the disciplinary capacity that Hoopa Bar membership affords the Tribal Court.
Order of April 4, 1996, pp. 5-6, 7-8. We wholeheartedly agree.
C. Trial Court Judgment Neither Arbitrary Nor Capricious
The trial court found that Appellant made several knowingly inaccurate statements concerning his representation of a client in hearings before the Tribe’s TERO Commission. There is substantial evidence in the record to support the Trial Judge’s findings on that issue.
Appellant stated to the trial court that he was not practicing law on the Reservation but that he was merely “assisting” his client. Mr. Robertson drafted and signed pleadings and submitted documents as “Counsel for Defendant”, counseled his client, and appeared in hearings before the TERO Commission, all on behalf of his client. See, e.g., Gray v. Justice’s Court of Williams Judicial Township, 18 Cal.2d 420 (1937) (the practice of law encompasses oral instructions, letters, instruments by which legal rights are secured and administrative assistance, to say the least, not simply court appearances); see, also, California Business and Professions Code § 6125.
We cannot conclude the findings were either arbitrary or capricious. Therefore we will not disturb the trial court’s factual conclusion on that issue.
4 NICS App. 111, IN THE MATTER OF ROBERTSON (September 1996) p. 118
V. INAPPROPRIATE CONDUCT
We note that the trial court could have imposed disciplinary sanctions against Mr. Robertson, but elected not to do so. This judicial restraint was laudable in light of the important issues raised in this case. There is substantial evidence in the file to support the trial judge’s conclusion, and the trial judge’s decision on this issue did not therefore amount to a manifest abuse of discretion. The trial judge is commended for exercising judicial restraint in the face of a rather contentious proceeding as demonstrated by the record before us, and as demonstrated by the disappointing conduct of both counsel during oral argument before this appellate panel.
Nonetheless, the conduct of both counsel throughout these proceedings has not gone unnoticed by this Court of Appeals. The personal attacks on the trial judge are especially appalling. Based on our review of the record and the observation of both attorneys during oral argument, it is this Court’s opinion that sanctions would have been justified.
It is hoped that the level of practice in the future by both counsel will rise above the record that has been produced in this appeal. The record before us is appalling concerning the lack of respect shown the Tribal Court and its officers, including opposing counsel. Both counsel are encouraged to review the Spokesperson’s Oath that they took when they became members of the Hoopa Valley Tribal Court Bar.
VI. ORDER
Therefore, based on the foregoing, it is hereby ordered that the judgment of the trial court is affirmed. This Opinion shall be available for review by the public.
Coochise and Hutchinson, JJ., concur.