No Oral Hearing Required Under FRAP 46(b)(3) in Reciprocal Discipline; Baseless Judicial-Corruption Accusations Are Unprotected: Commentary on In re Jordan (2d Cir. 2025)

Introduction

This commentary examines the Second Circuit’s summary order in In re Jordan, No. 21-90055 (2d Cir. Aug. 29, 2025), in which the court reciprocally disbarred attorney Jack R.T. Jordan from practice before the Second Circuit following his disbarment by the Kansas Supreme Court, In re Jordan, 518 P.3d 1203 (Kan. 2022), cert. denied, 143 S. Ct. 982 (2023). The Kansas disbarment stemmed from Jordan’s conduct in federal proceedings, including repeated accusations of criminal conduct and corruption by federal judges without evidentiary support.

The Second Circuit’s order addresses several core issues in reciprocal attorney discipline: (1) the presumption of identical reciprocal sanctions under Second Circuit Local Rule 46.2(c)(2) and In re Roman, 601 F.3d 189 (2d Cir. 2010); (2) the standard for rebutting reciprocal discipline under Selling v. Radford, 243 U.S. 46 (1917); (3) the limits of the First Amendment in the context of lawyer speech during pending judicial proceedings; and (4) the procedural meaning of “a hearing, if requested” under Federal Rule of Appellate Procedure 46(b)(3) in reciprocal discipline cases.

Although issued as a summary order (and therefore non-precedential under FRAP 32.1 and Local Rule 32.1.1), the decision clarifies the Second Circuit’s practice in two practical ways: it reaffirms a robust presumption in favor of identical reciprocal discipline and makes explicit that FRAP 46(b)(3)’s “hearing” requirement can be satisfied through written submissions where there are no material factual disputes and oral argument would not aid the decisional process.

Summary of the Judgment

The Second Circuit removed Jordan from the bar of the court on “comparable terms and conditions” to his Kansas disbarment pursuant to Local Rule 46.2(c)(2). Applying In re Roman, the panel held that Jordan failed to meet his burden—by clear and convincing evidence—to show one of the Selling exceptions that would justify a departure from reciprocal discipline. Specifically:

Due process claim rejected: The Kansas Supreme Court primarily relied on Jordan’s own filings; any potential consideration of hearsay did not undermine the fairness or the determination of misconduct.
Sufficiency of the evidence affirmed: Jordan did not dispute making the accusations; the court found those statements warranted discipline, citing Second Circuit and New York authorities disciplining baseless attacks on judicial integrity.
First Amendment defense rejected: The court—relying on Gentile v. State Bar of Nevada, Bill Johnson’s Restaurants, and related decisions—held that attorney speech in pending matters is more readily subject to regulation, and baseless accusations are not constitutionally protected.
No “grave reason” to avoid reciprocity: The panel found no mitigating factor or other reason making reciprocal disbarment inconsistent with principles of right and justice.
No entitlement to oral or in-person hearing: While FRAP 46(b)(3) requires “a hearing, if requested,” the panel concluded that an in-person or oral hearing was unnecessary where written submissions adequately presented the facts and law and oral argument would not significantly aid the decisional process. The court analogized to its prior interpretation of FRAP 46(c) and to FRAP 34(a)(2)(C).

Analysis

Precedents Cited and Their Influence

Selling v. Radford, 243 U.S. 46 (1917): The foundational framework for reciprocal discipline. A federal court will ordinarily impose discipline identical to that of another jurisdiction unless the disciplined lawyer establishes, by clear and convincing evidence, one of three exceptions: (1) lack of due process in the prior proceeding; (2) inadequate proof of misconduct; or (3) some other grave reason making reciprocity inconsistent with right and justice. The panel used Selling—as rearticulated in Roman—to structure Jordan’s challenges and to assess whether reciprocal disbarment should proceed.
In re Roman, 601 F.3d 189 (2d Cir. 2010): Establishes a rebuttable presumption that reciprocal discipline will be “identical—or as close to identical as our rules and the circumstances permit.” It places the burden on the disciplined attorney, by clear and convincing evidence, to show why the Second Circuit should deviate. The panel hewed closely to Roman, underscoring the strong presumption of sameness and the high burden to defeat it.
In re Whiteside, 386 F.2d 805 (2d Cir. 1967): Supports disciplining attorneys who accuse judges of criminal conspiracy without evidence, clarifying that such accusations are not protected simply because the rulings were adverse. The panel cited Whiteside both substantively (disciplining baseless attacks) and in a footnote (rejecting reliance on New York Times v. Sullivan in the attorney-discipline context where no facts support the claim).
In re Bank, 850 F. App’x 115 (2d Cir. 2021) (summary order): Demonstrates that insulting and discourteous conduct toward a judge violates FRAP 46(c) and New York Rule of Professional Conduct 3.3(f)(2). The panel used Bank to reinforce that courts may sanction attorney incivility before the tribunal.
In re Holtzman, 78 N.Y.2d 184 (1991): New York’s high court affirmed discipline for false accusations of judicial misconduct; also cited later for inapplicability of Sullivan to attorney discipline. The panel invoked Holtzman to demonstrate state-level support for professional restrictions on baseless attacks on the judiciary.
Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991): The Supreme Court recognized that lawyer speech in pending matters can be more readily regulated than press speech; lawyers, as officers of the court, are subject to ethical constraints that limit speech that might otherwise be protected. The panel used Gentile to reject Jordan’s First Amendment defense.
Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983): Baseless litigation is not protected by the First Amendment right to petition. The panel analogized this principle to underscore that baseless accusations in pleadings are not shielded by the First Amendment.
New York Times Co. v. Sullivan, 376 U.S. 254 (1964): Cited to explain why its actual malice standard does not apply to attorney discipline for unsupported accusations about judges in litigation, per Whiteside and Holtzman.
Cross-circuit authorities rejecting First Amendment defenses: In re Zeno, 504 F.3d 64 (1st Cir. 2007); Mezibov v. Allen, 411 F.3d 712 (6th Cir. 2005); United States v. Cooper, 872 F.2d 1 (1st Cir. 1989); In re Itel Sec. Litig., 791 F.2d 672 (9th Cir. 1986); In re Reines, 771 F.3d 1326 (Fed. Cir. 2014); and New York cases including In re Giuliani, 197 A.D.3d 1 (1st Dep’t 2021), and In re Krapacs, 189 A.D.3d 1962 (3d Dep’t 2020). Collectively, they affirm that unsubstantiated judicial-accusation speech by attorneys is disciplinable.
In re Rusk, No. 23-90006, 2024 WL 2013672 (2d Cir. May 7, 2024) (summary order): Interprets FRAP 46(c) to allow paper-only dispositions when oral argument would not aid decision-making. The Jordan panel draws on that reasoning to clarify that FRAP 46(b)(3)’s “hearing” need not be in-person or oral.

The panel also treated the ABA Model Rules of Professional Conduct (Rules 3.1, 8.2(a), 8.4(d)) and the New York Rules of Professional Conduct (Rule 3.3(f)(2)) as persuasive—not binding—guidance informing the scope of sanctionable conduct under FRAP 46(b) and (c).

Legal Reasoning

Reciprocal discipline framework and presumption: Local Rule 46.2(c)(2) directs reciprocal discipline on comparable terms when another “attorney disciplinary authority” disbars or suspends a lawyer. Mirroring Roman, the panel applied a rebuttable presumption favoring identical discipline, placing on Jordan the burden to show, by clear and convincing evidence, one of the Selling exceptions.
Due process challenge based on hearsay rejected: The panel emphasized the Kansas Supreme Court’s reliance on Jordan’s own filings—admissions that he made the accusations. Because those admissions suffice, any possible hearsay consideration cannot undermine the fairness or correctness of the decision. In other words, even if hearsay appeared in the record, it was not material to the outcome.
Substantial evidence of misconduct: Jordan did not deny making unsupported criminality accusations against judges. Citing Whiteside, Bank, and Holtzman, the panel reasoned that baseless accusations against the judiciary, and undignified or discourteous conduct before a tribunal, fall squarely within disciplinable misconduct. The persuasive ethics rules (ABA and NY) further underscore that reckless or knowingly false statements about a judge’s integrity (Rule 8.2(a)), frivolous assertions (Rule 3.1), and conduct prejudicial to the administration of justice (Rule 8.4(d)) are sanctionable.
First Amendment defense rejected: Relying on Gentile and a cross-circuit consensus, the panel held that attorney speech in pending matters is “extremely circumscribed” and subject to ethical constraints not applicable to the general public. Baseless pleadings are not protected by the right to petition (Bill Johnson’s), and the Sullivan “actual malice” standard does not immunize unsupported accusations made by lawyers about judges in litigation (Whiteside n.4; Holtzman).
No “grave reason” to avoid reciprocity: The panel found no mitigating facts or other equitable considerations justifying departure from identical reciprocal disbarment. It noted Jordan’s refusal to concede even the possibility that his conduct breached professional obligations.
FRAP 46(b)(3) hearing clarification: While a “hearing” must be provided if requested before imposing suspension or disbarment under FRAP 46(b)(3), the panel concluded that “hearing” does not invariably mean an in-person or oral proceeding. Building on In re Rusk (construing FRAP 46(c)) and invoking FRAP 34(a)(2)(C), the court held that written submissions can satisfy the hearing requirement when the briefs and record adequately present the facts and law and oral argument would not aid decision-making. Here, Jordan had filed voluminous submissions, raised no material factual disputes requiring credibility determinations, and identified no issue needing oral elucidation.

Impact

Even as a non-precedential summary order, In re Jordan is likely to influence reciprocal discipline practice in several ways:

Procedural clarity on FRAP 46(b)(3): The Second Circuit has now expressly stated that the hearing requirement in FRAP 46(b)(3) can be met through written submissions in appropriate cases—especially where there are no material factual disputes and oral argument would not assist. This streamlines reciprocal discipline proceedings and provides predictable process to practitioners.
Reinforcement of the reciprocity presumption: The decision strengthens the “identical or as close as possible” presumption under Roman and Local Rule 46.2(c)(2). Lawyers disbarred or suspended in another jurisdiction should anticipate comparable sanctions in the Second Circuit unless they can meet the stringent Selling burden.
Limits on lawyer speech in litigation: The robust rejection of the First Amendment defense, with cross-circuit support, sends a clear signal: unsupported allegations of criminality or corruption against judges, particularly in court filings, expose counsel to discipline. The decision underscores the profession’s duty of candor, civility, and respect for the tribunal.
Proof and due process standards in discipline: Where a lawyer’s own filings demonstrate the misconduct, due process objections predicated on evidentiary technicalities (e.g., hearsay) will likely fail. The decision reinforces that admissions and the content of pleadings can be sufficient proof of disciplinable conduct.
Cross-jurisdictional consequences: Discipline imposed by state high courts will predictably reverberate in federal appellate courts. Attorneys must consider not only state-bar implications but also federal court access when deciding how to litigate and how to characterize judicial actions.

Complex Concepts Simplified

Reciprocal discipline: When one court or bar authority disciplines a lawyer, another court where the lawyer practices may impose similar discipline, absent compelling reasons to diverge.
The Selling factors: A disciplined lawyer can avoid identical reciprocal discipline by proving one of three exceptions: (1) the original proceeding lacked due process; (2) the evidence of misconduct was insufficient; or (3) some other grave reason makes reciprocity unjust.
Clear and convincing evidence: A high standard of proof requiring the judge to be firmly convinced. It’s more than “more likely than not,” but less than “beyond a reasonable doubt.”
FRAP 46(b) vs. 46(c): Both address attorney discipline in federal appellate courts. Subsection (b) governs suspension/disbarment based on broader grounds (including reciprocal matters), while subsection (c) addresses discipline for conduct before the court. Both contemplate “hearing” opportunities that can be satisfied on the papers when appropriate.
“Hearing” under FRAP 46(b)(3): If a hearing is requested, the court must provide one—but it need not be in-person or oral if written submissions adequately present the issues and oral argument would not help the court decide.
ABA Model Rules as persuasive authority: Federal courts often look to the ABA ethics rules to help interpret the scope of sanctionable conduct, even when those rules are not binding.
Undignified or discourteous conduct: Rules like NY RPC 3.3(f)(2) prohibit disrespectful or insulting conduct toward the tribunal, reflecting the profession’s duty of civility and respect in court proceedings.
Summary order (non-precedential): A decision that—by rule—does not create binding precedent, though it may guide future practice and be cited as persuasive authority under FRAP 32.1 and local rules.

Practical Guidance for Lawyers

Ground serious allegations in admissible facts: Before asserting criminality or corruption by judges (or other actors), ensure a solid evidentiary foundation. Unsupported accusations—especially in pleadings—are likely to trigger discipline.
Use proper channels for judicial misconduct concerns: Where evidence suggests misconduct, consider formal complaint mechanisms rather than rhetorical escalation in filings. Maintain civility and adhere to candor obligations.
Anticipate reciprocal consequences: If disciplined in a state court, expect similar discipline in federal courts unless you can satisfy a Selling exception by clear and convincing evidence.
Build a record if challenging reciprocity: To argue due process defects, identify concrete procedural deficiencies in the original proceeding. For sufficiency challenges, address the evidentiary basis head-on. For “grave reason,” develop cogent mitigation, remorse, or other equitable considerations.
Do not assume an oral hearing: A request for a “hearing” under FRAP 46(b)(3) may be satisfied by the court on the papers. Focus on comprehensive, well-supported written submissions; identify any material factual disputes necessitating witness testimony or credibility findings if you believe an in-person proceeding is essential.
Observe civility rules: Even apart from truth/falsity, undignified or discourteous conduct can itself be sanctionable. Professionalism is not optional in court filings.

Conclusion

In re Jordan affirms core principles of reciprocal discipline in the Second Circuit: a strong presumption favoring identical sanctions, a disciplined attorney’s heavy burden under the Selling exceptions, and the limited scope of lawyer speech rights within pending judicial proceedings. The court also offers a procedural clarification with practical significance: FRAP 46(b)(3)’s “hearing” requirement does not guarantee an in-person or oral hearing where written submissions suffice and oral argument would not aid the decisional process.

Key takeaways:

Reciprocal discipline will ordinarily mirror the original sanction absent clear and convincing proof of a Selling exception.
Baseless accusations of judicial criminality or corruption in court filings are disciplinable and not protected by the First Amendment.
Due process objections grounded in evidentiary technicalities will fail when the record (including the attorney’s own filings) amply demonstrates misconduct.
FRAP 46(b)(3) “hearing” can be satisfied through written submissions; no categorical right to oral or in-person proceedings exists in reciprocal discipline cases absent material disputes of fact requiring live resolution.
Ethics standards (ABA Model Rules and state rules) continue to inform federal courts’ understanding of sanctionable conduct under FRAP 46.

While non-precedential, Jordan consolidates a coherent, cross-jurisdictional message: the federal courts will act swiftly and on the papers to reciprocate state discipline, and they will not tolerate unsupported, incendiary attacks on the judiciary cloaked as protected speech. The decision thus reinforces both the integrity of the bar and the administration of justice.