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In re Moncier

July 30, 2008

IN RE: HERBERT S. MONCIER, ESQ.


The opinion of the court was delivered by: Chief Judge Curtis L. Collier

BPR No. 1910

MEMORANDUM

Respondent Herbert S. Moncier ("Respondent") has been suspended as a member of the bar of the Eastern District of Tennessee for a period of three to five years pursuant to E.D.TN. LR 83.7 (Court File No. 69). In re Moncier, 550 F. Supp. 2d 768 (E.D. Tenn. 2008). Respondent has appealed the order of suspension to the United States Court of Appeals for the Sixth Circuit. Prior to filing his notice of appeal, Respondent filed a post-suspension motion asking the Court for more specificity as to the limitations imposed on his practice in this district by the suspension order (Court File No. 72).*fn1 In so far as the Court can determine, this question has never been addressed by either the Sixth Circuit*fn2 or this district court. The question - what are the ethical and legal constraints on a member of the bar of the Eastern District of Tennessee resulting from being suspended from that bar - is of significance to both the bench and bar of this district, and the Court will address it here.*fn3

I. NATURE OF SUSPENSION FROM PRACTICE IN FEDERAL COURT

As a general matter, a suspension from practice is an intermediate sanction between disbarrment and lesser sanctions such as reprimands and admonitions. Courts have defined suspension in similar language. "Disbarrment is the severance of the status and privileges of an attorney, whereas suspension is the temporary forced withdrawal from the exercise of office, powers, prerogatives, and privileges of a member of the bar." In re Morrissey, 305 F.3d 211, 216 (4th Cir. 2002) (citing State ex rel Nebraska State Bar Ass'n v. Butterfield, 111 N.W.2d 543, 546 (Neb. 1961)). "[A] suspended attorney 'still holds his office as an attorney and is subject to the jurisdiction of the court. His former suspension operates simply to deprive him temporarily of the right to practice his profession' in this court." In re Mitchell, 901 F.2d 1179, 1183 n.5 (3d Cir. 1990) (quoting State v. Schumacher, 519 P. 2d 1116, 1122 (Kan. 1974)).

A suspension operates to temporarily deprive the suspended attorney from exercising the powers, prerogatives, and privileges of a member of the bar of the Eastern District of Tennessee. "An order of suspension deprives the suspended lawyer from performing any service recognized as the practice of law and which is usually performed by lawyers in the active practice of law." In re Mitchell, 901 F.2d at 1185.

It is axiomatic that the suspension is personal and specific to the attorney disciplined. It does not operate to suspend from practice other lawyers in the suspended attorney's law firm or associated with the suspended attorney. However, attorneys admitted to practice before the bar of this court that are in the suspended attorney's law firm or associated with the suspended attorney may have practical and ethical considerations that will constrain their practice in this court.

Other federal courts have had occasion to consider suspension in the context of federal practice. This case law provides instructive guidance as to the meaning of suspension in federal court. The Court will rely principally upon three of these cases, In re Mitchell, 901 F.2d 1179 (3d Cir. 1990); Cooper v. Texaco, Inc., 961 F.2d 71 (5th Cir. 1992); and, In re Perez, 327 B.R. 94 (Bankr. E.D.N.Y. 2005).

A. In re Mitchell

The decision of the United States Court of Appeals for the Third Circuit in In re Mitchell, 901 F.2d at 1179, is particularly instructive.*fn4 In re Mitchell concerns a suspended attorney, Mitchell. Despite the suspension order from the court of appeals, Mitchell utilized an admitted attorney, Hilaire (with whom Mitchell shared office space), to continue to represent a client before the court. Mitchell testified by way of affidavit that he "was trial counsel and is the only attorney for the Appellant who has first-hand knowledge of the record below and to date." Id. at 1182. In a letter written to the court, Mitchell stated "although the appeal in [the case] is being carried under the name of Attorney Hilaire until the Court acts on my reinstatement . . . he has had no involvement with the case at all." Id. (emphasis removed). The court was critical of Hilaire's facilitation of Mitchell's practicing law using Hilaire's name; "Hilaire was acting simply as a 'front' for Mitchell . . . ."*fn5 Id. at 1188.

The panel canvassed the state authority concerning the limitations imposed upon suspended attorneys. It thoroughly explored the applicable authority on attorney suspensions and the rationale for suspension. It then distilled the principles from those authorities and applied them to federal practice. It concluded by stating: "an attorney suspended from the bar of this court can have no contact with this court, its staff, or a client in any proceeding before this court, except if the attorney is representing only himself or herself as a party, but may act as a law clerk or legal assistant under the close supervision of a member in good standing of the bar of this court." Id. at 1181.

B. Cooper v. Texaco, Inc.

In this case the suspended attorney, Strauss, was the sole shareholder of his law firm. After his suspension, he hired two associates who became counsel of record for all of Strauss's cases pending in federal court in the Eastern District of Louisiana. 961 F.2d at 72. Notwithstanding the order of suspension, "Strauss solicited new clients, and contingency fee contracts were entered into between Strauss & Associates and new clients in Eastern District cases. Strauss supervised and controlled his associates, participated in depositions, negotiated and approved settlements, advised clients, and wrote letters on his professional stationery relating to cases filed in the Eastern District. He did not submit any papers to the court under his own name or appear in court in the Eastern District (except to the extent that appearance at a deposition can be deemed to be participation in a court proceeding)." Id. (footnote omitted).*fn6

Strauss was prosecuted criminally for violating the suspension order. The Fifth Circuit upheld his conviction for criminal contempt. The court agreed with the suspension limitations expressed in In re Mitchell, and concluded that a suspended attorney could act only as a law clerk. Id. The court also decided that Strauss, as a suspended attorney, could not retain legal fees for work performed while he was under suspension. Id. at 73-74.

C. In re Perez

The last case, In re Perez, is a bankruptcy case involving suspended attorney Hussain-El. Hussain-El had been suspended by the New York state courts. 327 B.R. at 94. Nonetheless, Hussain-El continued to render legal services to a bankruptcy client who had retained him before his suspension. He continued to have discussions with the client, provide legal advice and assistance to the client, accept fees from the client, prepare legal papers for the client, and file certain legal documents with the court in such a manner so as to appear the client had prepared and filed the documents. Id. at 98-99. Hussain-El argued he did not violate the suspension order because "he was only acting as a bankruptcy preparer service, and not as a lawyer." Id. at 98. The bankruptcy court rejected this claim, finding that "[t]he demand for payment and the acceptance of a fee for legal services described as 'motion and consultation' months after Hussain-El was suspended is clear and convincing evidence that he intentionally engaged in the practice of law." Id. at 99.

D. Definition of Suspension

In defining the nature of suspension, the Court agrees with and adopts the standard announced in In re Mitchell - a suspended attorney cannot exercise any of the powers, prerogatives, or privileges of an attorney who is a member in good standing of the bar of this court. 901 F.2d at 1181; accord In re Martin, 400 F.3d at 867; Cooper, 961 F.2d at 71. A suspension entails both legal and ethical constraints. A suspended attorney is under legal constraints in that the suspended attorney is under a court order and faces a contempt of court charge for violation of that order. The suspended attorney is under ethical constraints in that there are ethical implications to the attorney's actions while ...


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