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Legal Malpractice & Attorney Discipline Law Supreme Court Opinion

by Penn, Michele

 

SC20084 - Cimmino v. Marcoccia ("On December 9, 2014, after conducting an en banc hearing on an order to show cause, the defendant in error, the Appellate Court, issued an order suspending the plaintiff in error, Josephine Smalls Miller, "from practice before [the Appellate Court] for a period of six months" and barring her from representing "any client before [the Appellate Court] until she files a motion for reinstatement and that motion has been granted" (2014 order). On October 4, 2017, the Chief Disciplinary Counsel sent a letter to the Chief Clerk of the Supreme and Appellate Courts indicating that Miller had been retained to represent a client in an appeal before the Appellate Court. In response, on February 15, 2018, the Appellate Court issued an additional order, stating that it "hereby clarifies that [the 2014 order] precludes . . . Miller from providing legal services of any kind in connection with any . . . Appellate Court matter until she files a motion for reinstatement and that motion has been granted" (2018 order). Miller then filed the present writ of error, claiming that the 2018 order was an unconstitutional ex post facto law in violation of the United States constitution because it retroactively prohibited her from engaging in certain conduct. In addition, Miller claimed that the 2014 order was the result of the Appellate Court's selective enforcement of the rules of attorney discipline, and argued that both orders were the result of the court's disparate and retaliatory treatment of minority attorneys who pursue racial discrimination claims on behalf of their clients. After oral argument before this court, we, sua sponte, ordered the parties to submit supplemental briefs on the following issue: "Whether the Appellate Court's order of February 15, 2018, clarifying its order of December 9, 2014, violated [Miller's] constitutional right to due process?" We conclude that the 2018 order did not violate the ex post facto clause and that Miller's claims of selective enforcement and discriminatory and retaliatory treatment are not reviewable by this court. We further conclude that the 2018 order did not violate Miller's constitutional due process rights because, as applied, that order did not prohibit her from engaging in conduct that was not also prohibited by the 2014 order. Accordingly, we dismiss the writ of error.")