UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: April 18, 1990.
IN RE RONALD T. MITCHELL, ESQ., IN RE STAFFORD A. HILAIRE, ESQ.
On an Original Proceeding, before the Standing Committee on Attorney Discipline.
Sloviter, Stapleton and Greenberg, Circuit Judges.
Opinion OF THE COURT
GREENBERG, Circuit Judge.
This is an original proceeding in a discipline matter, in which we determine what restrictions are imposed on an attorney by an order of suspension from the bar of this court. We conclude that 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. This restriction applies to a suspended attorney until explicitly reinstated by order of this court, except in those cases in which the attorney has been suspended for six months or less and is automatically reinstated by filing an affidavit of compliance with the provisions of the order of suspension in accordance with Rule 12(1) of our Rules of Disciplinary Enforcement (1988), cited herein as Disc.R.
By our order in banc of June 26, 1986, we suspended Ronald T. Mitchell, a Virgin Islands attorney, from the bar of this court for two years.*fn1 The order provided that at the expiration of the two years, Mitchell could apply for reinstatement.*fn2 It does not appear, however, that Mitchell was suspended from the bar of the District Court of the Virgin Islands.*fn3
On May 11, 1989, Mitchell applied for reinstatement as a member of our bar, citing the expiration of the two-year period as the sole justification for his reinstatement.*fn4 On July 5, 1989, we issued an order stating that Mitchell's application would be denied unless he submitted "a detailed affidavit setting forth facts showing there is reason to believe that the pattern of breaches of duty to clients and the court which led to [Mitchell's] suspension will not recur if his petition is granted." Mitchell subsequently withdrew his application for reinstatement.
On July 10, 1989, this court received a motion to reinstate the appeal from the District Court of the Virgin Islands in Jeep Corporation v. Perkins, No. 89-3269, which had been filed April 3, 1989, by Mitchell but had been dismissed on June 15, 1989, for failure of the appellant to prosecute the appeal in a timely manner by filing his brief and appendix. This motion was accompanied by affidavits dated July 5, 1989, of Mitchell and Stafford A. Hilaire, Esq., a Virgin Islands attorney who shares office space with Mitchell, which indicated that Mitchell, with Hilaire's assistance, was practicing law before this court.
In particular, Hilaire's affidavit set forth that on or about April 21, 1989, Mitchell informed him that the appeal could not be docketed under Mitchell's name unless and until he was reinstated, but that the Clerk's office would docket the appeal under Hilaire's name. Hilaire stated in the affidavit that he "was agreeable to having the appeal listed under my name provided that Attorney Mitchell remained responsible for substantive work thereunder." Hilaire further stated that his next contact with the case was a letter from the Clerk's office, in which a jurisdictional question was raised. "This letter was answered by attorney Mitchell during my absence from [St. Thomas] on business." In this letter, which was dated May 30, 1989, Mitchell argued that the appeal was timely.
Mitchell said in his 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." This was consistent with the May 30, 1989, letter in which Mitchell stated that "although the appeal in [ Jeep ] 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." (Emphasis supplied.) In view of these affidavits we issued orders directed to Mitchell and Hilaire to show cause why they should not be disciplined, Mitchell for violating his suspension and Hilaire for aiding and abetting Mitchell in the violation.
The foregoing facts raise a number of questions regarding attorney discipline in this court:
1) What are the restrictions imposed by suspension from the bar of this court?
2) What are the restrictions and obligations with respect to this court in a relationship between a suspended attorney and an attorney in good standing?
3) What must a suspended attorney show in order to be reinstated?
4) What are the responsibilities of an attorney who files an appearance in this court?
We have inherent authority to suspend, disbar, or otherwise discipline a member of our bar for conduct unbecoming a member of the bar of this court. In re Snyder, 472 U.S. 634, 643, 105 S. Ct. 2874, 2880, 86 L. Ed. 2d 504 (1985); Ex parte Garland, 71 U.S. (4 Wall.) 333, 378-79, 18 L. Ed. 366 (1867); see also Ex parte Burr, 22 U.S. (9 Wheat.) 529, 531, 6 L. Ed. 152 (1824) (Supreme Court will not interfere with Circuit or District Court's regulation of its own bar unless "the conduct of the Circuit or District Court was irregular, or was flagrantly improper."). This authority derives from the lawyer's role as an officer of this court. Theard v. United States, 354 U.S. 278, 281, 77 S. Ct. 1274, 1276, 1 L. Ed. 2d 1342 (1957); see also People ex rel. Karlin v. Karlin, 248 N.Y. 465, 470-71, 162 N.E. 487, 489 (1928) (Cardozo, J.) ("'Membership in the bar is a privilege burdened with conditions.' [ Matter of Rouss, 221 N.Y. 81, 84, 116 N.E. 782, 783 (1917)] [An attorney is] received into that ancient fellowship for more than private gain. He [becomes] an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice."). Authority to discipline members of our bar is also explicitly granted by Fed. R. App. P. 46(b) and (c). The purpose of such discipline is "to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to discharge their professional duties to clients, the public, the legal system, and the legal profession." American Bar Association, Standards for Imposing Lawyer Sanctions, Standard 1.1 (1986).
We may prescribe and enforce disciplinary rules for attorneys admitted to practice before us, see Matter of Abrams, 521 F.2d 1094, 1099 (3d Cir.) (in banc), cert. denied, 423 U.S. 1038, 96 S. Ct. 574, 46 L. Ed. 2d 413 (1975), and our disciplinary rules provide that "[discipline] may consist of . . . suspension from practice before this Court. . . ." Disc.R. 3(1). An order of suspension may be enforced under our inherent power of contempt, Young v. U.S. ex rel. Vuitton Et Fils S.A., 481 U.S. 787, , 107 S. Ct. 2124, 2130, 95 L. Ed. 2d 740 (1987), and under Disc.R. 2(3), to which both Hilaire and Mitchell are subject.*fn5
Restrictions on a Suspended Attorney
We have not previously defined the scope of the restrictions imposed by a suspension from the practice of law before this court and it appears that there is a dearth of federal court opinions addressing the disabilities of a suspended attorney. Likewise, the rule which authorizes United States Courts of Appeals to suspend an attorney, Fed. R. App. P. 46(b),*fn6 does not define suspension, nor is "suspension from practice before this court" defined by our Rules of Attorney Disciplinary Enforcement.
In an earlier case in which we lacked specific ethical standards, In re Corn Derivatives Antitrust Litigation, 748 F.2d 157 (3d Cir. 1984), cert. denied, 472 U.S. 1008, 105 S. Ct. 2702, 86 L. Ed. 2d 718 (1985), we stated that "the appropriate guidance for finding the current national standards of ethical norms lies in the standards promulgated by the American Bar Association." Id. at 160. However, the ABA 1979 Standards for Lawyer Discipline and Disability Proceedings do not define suspension and the 1986 ABA Standards for Imposing Lawyer Sanctions, which serve as a model for determining the appropriate sanctions for lawyer misconduct, simply define suspension as "the removal of a lawyer from the practice of law for a specified minimum period of time." Standard 2.3. Futhermore, while the commentary to the latter section suggests time periods for a suspension (no less than six months, no more than three years) and appropriate requirements for reinstatement, it is not particularly helpful to us as it does not define "the practice of law."*fn7 In fact, the prime sources of authority for determining the effect of a suspension are the opinions of state courts, though in considering them we, as a court of limited jurisdiction, must be mindful of our "slightly different concern in maintaining discipline than a state bar authorizing the general practice of law." Petition of Olkon, 605 F. Supp. 784, 792 (D. Minn. 1985), aff'd and remanded, 795 F.2d 1379 (8th Cir. 1986).
Not surprisingly, the state decisions deal with more than litigation in defining the practice of law and the consequence of a suspension, and indicate that the practice of law is not limited to appearances in court and the signing of pleadings. In State of Nebraska ex rel. Nebraska State Bar Ass'n v. Butterfield, 172 Neb. 645, , 111 N.W.2d 543, 546 (1961), the court defined the practice of law as "the giving of advice or the rendition of any sort of service by a person, firm or corporation when the giving of such advice or the rendition of such service requires the use of any degree of legal knowledge or skill." The court held that a suspended attorney who "drew deeds, mortgages, and releases, . . . made out income tax returns . . . drafted a will . . . [and] drafted a power of attorney" was guilty of practicing law in violation of his suspension. See also Cape May County Bar Ass'n v. Ludlam, 45 N.J. 121, 211 A.2d 780 (1965).
In State v. Schumacher, 214 Kan. 1, 519 P.2d 1116 (1974), the Supreme Court of Kansas decided that the practice of law "includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court." Id. at , 519 P.2d at 1121. The court found a suspended attorney who continued to practice, with the sole exception that he did not make any formal appearances in court, was guilty of contempt. Thus, it suspended him indefinitely.
Many state court decisions hold that a suspension is violated when the attorney maintains public, visible signs of attorney status while under suspension.*fn8 We, however, are not directly concerned with that problem, since we do not regulate the general practice of law and there can be no doubt that a duly admitted attorney suspended only in this court may hold himself or herself out as an attorney, provided this holding out does not include a representation that he or she can practice in this court. This case, however, does raise the question of to what extent, if any, an attorney suspended from practice before this court may assist another attorney in a case before this court, effectively functioning as a law clerk or paralegal.
Attorneys charged with violations of suspensions frequently argue that they are only performing acts which may lawfully be performed by laymen. However, "[a] suspended lawyer is not the same as a layman. The public knows that he has a legal education, that he has engaged in the practice of law, and that his work and his opinions are presumably more valuable on that account." Application of Christianson, 215 N.W.2d 920, 925 (N.D. 1974). See also Matter of Discipline of Jorissen, 391 N.W.2d 822, 825 (Minn. 1986) ("Where the individual charged with unauthorized practice has had legal training, his activities are subject to even closer scrutiny."); Butterfield, 172 Neb. at , 111 N.W.2d at 546 (preparation of deeds, mortgages or income tax returns "is properly identified the practice of law, whether or not it might under some other circumstances be properly performed by others not admitted to the bar. 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."). The court in In re Lizotte, 32 R.I. 386, 79 A. 960 (R.I. 1911), noted that
[while] it is true that persons who are not of the legal profession at times assume to do the things which this respondent has done since his suspension, they do not, and would not be permitted to, so act in the guise of attorneys at law. Members of the bar who are under suspension will be required to comply with the terms of the decree suspending them in such a manner that there may be no ground for suspicion on the part of other members of the bar or of the public that the decrees of the court are not being exactly observed in their letter and their spirit.
Id. at 961.
A number of jurisdictions permit suspended attorneys to act as law clerks, on condition that they have no contact with clients or courts.*fn9 In The Florida Bar v. Thomson, 310 So.2d 300 (Fla. 1975), the Supreme Court of Florida permitted a suspended attorney to work as "a law clerk or investigator for members in good standing of The Florida Bar." Id. at 302. The attorney had assured the court that he had no contact with any client. The court reasoned that
[employment] of [the suspended attorney] in a supervised status within the profession seems to us to be an almost ideal manner in which he may demonstrate during his suspension his potential for rehabilitation and maintain his competency to practice law upon reinstatement.
Id. at 302.*fn10
Other jurisdictions which permit or have permitted suspended attorneys to work as law clerks include California,*fn11 Delaware,*fn12 Michigan,*fn13 Minnesota,*fn14 North Dakota,*fn15 Oregon*fn16, and possibly Pennsylvania.*fn17 On the other hand, in Illinois*fn18 and New Jersey*fn19, a suspended attorney may not act as a law clerk.
We will follow the majority of jurisdictions, and will permit a suspended attorney to work as a law clerk, with respect to matters in this court with no contact with clients or the court, under the close supervision of an attorney who is admitted to practice before us.*fn20 We agree with the Florida Supreme Court that this process would contribute to the rehabilitation of the suspended attorney, and we are satisifed that both the public and the court will be adequately protected by the restrictions on the suspended attorney's activities, and the fact that the attorney in good standing will be responsible for close supervision. In addition, we think that in some cases the interests of the clients may be prejudiced if the suspended attorney cannot work as a law clerk, as that attorney may have participated in the trial of the matter, if not suspended in the district court, and may have insights helpful on the appeal. Of course, the admitted attorney cannot share his or her fee with the suspended attorney, any more than he or she could share the fee with a layman.*fn21
Obligations of Attorney in Good Standing
The admitted attorney must maintain actual, as well as formal, control of the case. The ABA Model Rules of Professional Conduct, Rule 5.5(b), note that "[a] lawyer shall not assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law." The comment to that section notes that "[paragraph] (b) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. " (Emphasis supplied).
In Crawford v. State Bar of California, 54 Cal.2d 659, , 355 P.2d 490, 495, 7 Cal. Rptr. 746 (1960), the California Supreme Court noted that the work of a law clerk, and by extension the work of a suspended or disbarred attorney acting as a law clerk, "'must be such . . . as loses its separate identity and becomes merged in the product, of the attorney himself.'" The court disciplined an attorney because he permitted his father, a disbarred attorney with whom the attorney shared an office, to act independently in legal matters, of which the attorney "merely had knowledge of [their] existence . . . but not of their progress or disposition." See also In re Lacy, 234 Mo.App. 71, , 112 S.W.2d 594, 606 (1937).
Application of the Foregoing Rules in this Case
The facts of this case demonstrate clear violations of the rules regarding restrictions on the suspended attorney and the obligation of the attorney in good standing. According to Hilaire's affidavit of July 5, 1989, in support of the motion to reinstate the appeal in Jeep Corporation v. Perkins, he was aware that Mitchell was under suspension, and "was agreeable to having the appeal listed under my name provided that Attorney Mitchell remained responsible for substantive work thereunder." (Emphasis supplied). Furthermore, Hilaire indicated that he "turned over to Attorney Mitchell all correspondence concerning the appeal of which" he was aware.
In his affidavit of July 5, 1989, to reinstate the Jeep appeal, Mitchell stated that he "was trial counsel and is the only attorney for the Appellant who has first-hand knowledge below and to date." (Emphasis supplied). In addition, in his response to the request from the clerk's office for comment on the possible jurisdictional defect, Mitchell submitted his letter of May 30, 1989, which stated
Furthermore, he argued in the letter why the appeal was timely.
We recognize that in his response of December 18, 1989, to the order to show cause of October 17, 1989, Hilaire explained that "I would be directly responsible for the prosecution of the appeal, including signing all briefs, memoranda and correspondence as well as presentation of the appropriate oral argument, but Mitchell would assist me in making all necessary preparations therefore." (Emphasis supplied). We further acknowledge that in his response of December 18, 1989, to our order to show cause, Mitchell indicated that after he learned that he would have to be reinstated to prosecute the appeal, he ceased acting for the appellant in Jeep and indicated that he was only assisting Hilaire in the appeal as would a paralegal, law student, law graduate or attorney not admitted to the appellate bar.
We are not impressed with these responses to our orders to show cause. The affidavits of July 5, 1989, written before discipline was an issue, show that while the Jeep appeal was an ongoing matter Mitchell and Hilaire regarded the former as responsible for it and Hilaire as being uninvolved in the case. Indeed, Hilaire used the very word "responsible" to describe Mitchell's role in the appeal and Mitchell in his letter of May 30, 1989, stated that Hilaire had no involvement with the case at all. In fact, when Mitchell sent the letter to the clerk arguing that the appeal was timely, that was practicing law in this court, an act not justified by Hilaire's unavailability. In sum, the affidavits of July 5, 1989, and the conduct of Mitchell and Hilaire, clearly indicate that Mitchell was in control of the appeal, and negate any suggestion that Hilaire exercised supervision over it. Rather, Hilaire was acting simply as a "front" for Mitchell and we thus do not regard the responses to the orders to show cause as raising legitimate disputes of facts with respect to how the appeal had been earlier managed.*fn22
Violations of these rules are grounds for discipline under this court's Rules of Attorney Disciplinary Enforcement. Violation of an order of suspension is "conduct with respect to this court which violates . . . orders . . . of the Court," Disc.R. 2(c), and also constitutes a contempt of this court's order of suspension. An attorney in good standing who serves as a "front" for a suspended attorney, who undertakes to supervise the suspended attorney's work, but who freely permits his name to be used without exercising any supervision, is guilty of "conduct unbecoming a member of the bar of this Court," in violation of Disc.R. 2(d). Both the suspended attorney and the attorney acting as the front are guilty of "conduct that is prejudicial to the administration of justice" in violation of DR 1-102(A)(5) of the Code of Professional Responsibility and Rule 8.4(d) of the Rules of Professional Conduct.
Duty of an Attorney of Record
In addition to our foregoing conclusions, we find Hilaire's understanding that the appeal could be listed under his name, while Mitchell "remained responsible for substantive work thereunder" untenable as it implies that an appearance on an appeal is a mere formality, without any substantive meaning. An attorney who files an appearance in this court accepts the responsibility to see to it that the litigation is conducted in accordance with the rules and orders of this court. Cf. The Hilmon Co. (V.I.) Inc. v. Hyatt Int'l, 899 F.2d 250 (3d Cir. 1990) (holding attorney of record personally responsible for sanctions for frivolous appeal under Fed.App.P. 38). The fact that an attorney of record may make an agreement with some other person, attorney or layman, regarding a division of labor, does not diminish the attorney's personal responsibility for compliance with the rules of this court, and liability for discipline if those rules are not complied with. See Matter of Withey, 537 F.2d 324 (9th Cir. 1976).*fn23 Thus, even if Mitchell had not been suspended, Hilaire's understanding with him would not have been acceptable.
The Disposition of this Case
Mitchell and Hilaire argue that the limitations on a lawyer suspended from practice in this court were unclear when they acted, that they truly believed that their actions were proper, and that their good faith in this regard is proven by the fact that they openly described their actions in their affidavits. We find enough merit in these contentions to conclude that they should not be disciplined. While Mitchell and Hilaire exhibited poor professional judgment, in that their conduct did not meet even the most lenient standard of supervision, given the novelty in the federal courts of the question of what activities a suspended attorney may perform, our ruling in this case will only apply to actions taken after the date of this opinion. See Christianson, 215 N.W.2d at 925. Accordingly, the orders to show cause will be discharged.
While we have determined that we should impose no discipline in this case, we nevertheless deem it appropriate to deal with Mitchell's contention, as set forth in his response of December 18, 1989, that "the Suspension Order did not address the consequences of lack of reinstatement upon the expiration of the prescribed two years." He seems to suggest that at the end of the two years he should "be regarded as unreinstated but not suspended." We decline the invitation to create a new disciplinary status.
The American Bar Association's Standards for Imposing Lawyer Sanctions (1986) recommends that "a lawyer should not be permitted to return to practice until he has completed a reinstatement process demonstrating rehabilitation, compliance with all applicable discipline or disability orders and rules, and fitness to practice law." Standard 2.3. "In a reinstatement proceeding, the applicant bears the burden of establishing 'by clear and satisfactory evidence . . . that [he] has undergone such a moral change as to now render him a fit person to enjoy the public confidence and trust once forfeited.'" Olkon, 605 F. Supp. at 787. Due to the vital societal interests at stake,*fn24 "any doubt" as to a petitioner's fitness to practice in a federal court should be "resolved in favor of the public." See Matter of G.L.S., 586 F. Supp. 375, 379 (D. Md.), aff'd, 745 F.2d 856 (4th Cir. 1984). See In re Isserman, 345 U.S. 286, 289, 73 S. Ct. 676, 677, 97 L. Ed. 1013 (1953), judgment set aside on other grounds, 348 U.S. 1, 75 S. Ct. 6, 99 L. Ed. 3 (1954). See also Butterfield, 172 Neb. at , 111 N.W.2d at 547 ("A suspended lawyer is required to affirmatively show . . . that he will not in the future engage in any practices offensive to the practice of law."); McKelvey, 82 Cal.App. at , 255 P. at 836 ("'The petition for restoration should be granted when, and only when, the court upon the case as presented to it is convinced by positive evidence that the applicant has established, and now possesses, that good moral character which will make of him a trustworthy and honorable member of the bar.'").
Our Rules of Attorney Disciplinary Enforcement specify that
An attorney suspended for six months or less is automatically reinstated at the end of the period of suspension upon the filing of an affidavit of compliance with the provisions of the order. An attorney suspended for more than six months or disbarred may not resume practice until reinstated by order of the court.
The period specified in an order of suspension for a period greater than six months is the minimum period before which the attorney may apply for reinstatement. Such an application is not automatically granted. The Rules explain:
The Clerk refers petitions for reinstatement to the Standing Committee [on Attorney Discipline]. If the Standing Committee is satisfied that reinstatement is appropriate based on the findings of another court or otherwise, it recommends to the Court that the petition be granted. If the Standing Committee is not so satisfied or if the matter is returned to it by the Court, the Standing Committee schedules a prompt hearing on the petition. At the hearing, the petitioner has the burden of demonstrating by clear and convincing evidence that he or she has the moral qualifications, competency, and learning in the law required for admission to practice before this Court and that his or her resumption of the practice of law will not be detrimental to the integrity and standing of the bar or to the administration of justice, or subversive of the public interest.
Disc.R. 12(4) (emphasis supplied).
The rule requires that the petition demonstrate that reinstatement is appropriate. If another court has found the applicant to be rehabilitated, a certified copy of the opinion of that court should be attached to the petition. If not, rehabilitation must be demonstrated by other means. Our order of July 5, 1989, regarding Mitchell's May 11, 1989, petition for reinstatement isillustrative. We required that he
5. . . . submit . . . a detailed affidavit setting forth facts showing there is reason to believe that the pattern of breaches of duty to clients and the court will not recur if his petition is granted.
6. The affidavit filed by petitioner should reflect
(a) a description of petitioner's professional activities, if any, during the period of suspension,
(b) a statement of whether petitioner has been disciplined or reinstated by any other court during that period, and, if so, the circumstances thereof,
(c) a description of the circumstances under which petitioner is currently, or intends to be, practicing law including the professional or non-professional support available to him and the procedures, if any, in place to ensure that petitioner's responsibilities to the court and his clients will be met in a timely and professional manner, and
(d) any other facts bearing on his fitness to practice before this court.
Items (a), (b), and (d) would be appropriate for any application for reinstatement. Item (c) was specifically tailored to the reasons that Mitchell was suspended. An attorney suspended for other reasons should provide information showing that the factors leading to his or her suspension would not reoccur.
We hold that the only contact an attorney suspended from practice before this court may have with a case before this court (other than on his or her own behalf) is as a law clerk or legal assistant operating under the close supervision of a member in good standing of the bar of this court, and then only so long as the suspended attorney has no contact with clients, this Court, or its staff. While we believe that the conduct of Mitchell and Hilaire in this case violated even the most lenient standard of practice, we agree that until now the rules governing suspended attorneys in the practice of law were unclear. Accordingly, the Orders to Show Cause directed to Ronald T. Mitchell, Esq. and Stafford A. Hilaire, Esq. are discharged.*fn25