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In re Moncier

August 22, 2008

IN RE: HERBERT S. MONCIER, ESQ.


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

BPR No. 1910

MEMORANDUM

Herbert S. Moncier, Respondent, is a member of the bar of this court and is licensed by the state of Tennessee. Because of professional misconduct that violated the Tennessee Rules of Professional Conduct and unethical conduct that brought the court and bar of the Eastern District of Tennessee into disrepute and which he did not seriously dispute, this Court, pursuant to E.D.TN. LR 83.7, suspended him from the bar of the Eastern District of Tennessee for a period of three to five years ("Suspension Order," 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 (Court File No.75). Prior to filing the notice of appeal, Respondent, through his counsel, Ralph E. Harwell, filed a post-suspension motion asking the Court to clarify the limitations imposed by the suspension order (Court File No. 72). The Court decided that the general issue of what limitations a member of the bar of this court labors under while suspended did not infringe upon the Sixth Circuit's jurisdiction and a discussion of this issue would be of benefit to the public, the bar, and the bench. The Court issued a memorandum that generally defined the nature and extent of a suspension from practice in the Eastern District of Tennessee ("Memorandum Defining Suspension," Court File No. 80).*fn1 The Memorandum Defining Suspension provides the governing definitional framework regarding Respondent's suspension.

Having now defined the meaning of a suspension from practice in this district, the Court has considered the remaining aspects of Respondent's motion and concludes the notice of appeal does not deprive the Court of authority to address some of the remaining issues.

I. COURT'S AUTHORITY TO CONSIDER MOTION

Respondent brings his motion pursuant to Fed. R. Civ. P. 52(b) and 28 U.S.C. § 2202 (Court File No. 72, p. 1). However, Rule 52 and indeed the Federal Rules of Civil Procedure generally are not applicable to this disciplinary proceeding because, as stated previously, this is not a civil proceeding (Court File No. 69, p. 8). Rule 52(b) thus provides no authority for Respondent's request.

Respondent also cites 28 U.S.C. § 2202 as authority for his motion. This reliance is misplaced since § 2202 is predicated upon the previous entry of a declaratory judgment pursuant to 28 U.S.C. § 2201. No declaratory judgment had been entered in this case and § 2201 has never been invoked in these proceedings; therefore, § 2202 cannot provide any authority for Respondent's request.

Despite the absence of governing rules or a specific grant of statutory authority, the Court has inherent authority to reconsider, amend, and change its decisions. Even after a notice of appeal is filed, the Court has this authority so long as the Court has not been divested of authority by the Court of Appeals and the Court's action will not conflict with or interfere with any potential ruling by the court of appeals. In addressing Respondent's motion, the Court is not reconsidering, amending, or changing any of its previous decisions. Rather, the Court is merely expounding on the law as it pertains to this particular issue.

II. RESPONDENT'S SUSPENSION

Respondent's motion raises specific inquiries into the suspension as it applies to him and his law firm (Court File No. 72). The Memorandum Defining Suspension, which outlines the definition of "suspension" as used in disciplinary proceedings in this district, provides more than sufficient substance so as to permit a suspended attorney to interpret it, or obtain counsel to interpret it, and addresses some of Respondent's inquiries.

Respondent specifically seeks clarifications of the suspension as it pertains to: (1) the ability of individual judges in this district to vacate the suspension order; (2) Respondent's ability to practice law in the federal courts of the Eastern District of Tennessee; (3) Respondent's ability to operate a law firm that practices law in the federal courts of the Eastern District of Tennessee; and (4) the ability of Respondent's employees to practice law in the federal courts of the Eastern District of Tennessee.

A. Respondent's Suspension cannot be Vacated on a Case-By-Case Basis

Respondent suggests individual judges in the district can vacate his suspension on a case-by-case basis (Court File No. 72, p. 1). This is incorrect and would undermine the purposes of suspension. Respondent is suspended from practicing law in any court in the Eastern District of Tennessee, in accordance with the terms of his suspension (see Court File No. 69).

As this Court previously explained, "[t]he judicial officers of this court are not foreign bodies, but constitute the court itself" (Court File No. 6, p. 4). Respondent's suspension was an act of "the court," which entails all the judicial officers in the Eastern District of Tennessee. See E.D.TN. LR 83.7(a) ("The court may impose discipline on any member of its bar who has violated the Rules of Professional Conduct as adopted by the Supreme Court of Tennessee, or has engaged in unethical conduct tending to bring the court or the bar into disrepute. . . . Discipline which may be imposed includes disbarrment, suspension, reprimand, or such other further disciplinary action as the court may deem appropriate and just."). Thus, to the extent Respondent seeks individual judges to rule on the appropriateness of the suspension, or how that suspension affects Respondent's ability to represent a specific client, those determinations have already been made in the original suspension order (see Court File No. 69).*fn2 Respondent has provided the Court with no reason to revisit the issue.

1. Purposes of the Suspension - Incentive for Respondent to Raise His Professional Conduct to the Standards of this Bar

In the Suspension Order, the Court identified a number of objectives of Respondent's discipline, i.e., the suspension. One of the objectives was to "correct the unethical and unprofessional behavior of Respondent" (Court File No. 69, p. 74). The Court elaborated on this objective by stating that the purpose of discipline for Respondent was to " impress upon Respondent the absolute requirement he live up to the standards and expectations of the bar of this court; to provide him an opportunity to demonstrate understanding of his unethical and unprofessional conduct; to provide him an opportunity to make amends for this misbehavior; and to allow him to return to this bar under supervision to protect the public and the integrity of the bar of this court" (id.). This objective is rehabilitative. If Respondent were allowed to practice in some courts in this district but not others, before some judges of this bench but not others, then the goal of impressing upon him the necessity of his ...


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