452 F.2d 111 (7th Cir. 1971), 18400, In re Oliver

Docket Nº:18400.
Citation:452 F.2d 111
Party Name:In the Matter of Frank W. OLIVER, Attorney, Respondent-Appellant.
Case Date:November 02, 1971
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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452 F.2d 111 (7th Cir. 1971)

In the Matter of Frank W. OLIVER, Attorney, Respondent-Appellant.

No. 18400.

United States Court of Appeals, Seventh Circuit.

November 2, 1971

Page 112

Percy L. Julian, Jr., Anthony J. Theodore, Madison, Wis., Robert Kasanof, New York City, Melvin B. Lewis, Chicago, Ill., James M. Shellow, Milwaukee, Wis., Frank W. Oliver, Edmund W. Kitch, Mark Spiegel, Chicago, Ill., Shellow & Shellow, Milwaukee, Wis., for respondent-appellant.

William J. Bauer, U. S. Atty., D. Arthur Connelly, Chief, Civil Div., Asst. U. S. Atty., Chicago, Ill., for appellee; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel.

Edmund W. Kitch, Mark Spiegel, Chicago, Ill., for amicus curiae, the Chicago Council of Lawyers.

Before SWYGERT, Chief Judge, DUFFY, Senior Circuit Judge, and KERNER, Circuit Judge.

SWYGERT, Chief Judge.

This is an appeal from a final judgment in a disciplinary proceeding instituted against an attorney admitted to practice before the United States District Court for the Northern District of Illinois. Frank W. Oliver, the attorney, was charged with violating a certain "Policy Statement" promulgated by that court on November 12, 1965 [*] which related to extra-judicial comment by attorneys with regard to pending litigation and with violating then Canon 20 of the Canons of Professional Ethics of the American Bar Association which related to the same subject matter. Upon its finding that Oliver had violated the policy statement and the Canon, the executive committee of the district court reprimanded Oliver and warned him that "any future misconduct similar to that here reprimanded shall subject him to disbarment." In re Oliver, 308 F.Supp. 1183, 1185 (N.D.Ill.1970).

The district court found that Oliver, together with numerous other attorneys of its bar, had filed a petition which was the subject of the district court's opinion reported as In re Trials of Pending & Future Criminal Cases, 306 F.Supp. 333 (N.D.Ill.1969), and that Oliver had then held a prearranged press conference and issued public statements "which related to and commented upon the petition he had just filed with the court." The petition was ultimately dismissed by the court, In re Trials of Pending & Future Criminal Cases, supra, and the court issued a citation to Oliver leading to this proceeding.

Oliver conceded in the trial court, as that court found, that he had knowledge of the policy statement at the time of the conduct charged and that he knowingly violated it. He urges us that the only issues on this appeal are whether the policy statement and Canon 20 are

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facially constitutional and whether, assuming facial validity, his conduct may be constitutionally punished. The United States Attorney argues, on behalf of the district court, that the only issue before us is whether Oliver may even question the constitutional validity of the policy statement and the Canon after having violated them knowingly. The threshold issue is whether Oliver may challenge the validity of the rule he violated.

The principal thrust of the Government's argument is that a general rule of court promulgated to govern the conduct of attorneys admitted to practice before it may not be challenged after its violation, but rather must be obeyed until it is abrogated through a declaratory judgment or similar action which contests its validity without violation. As its principal authority for this proposition, the Government cites Walker v. Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967), and United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947), and argues that both were cases involving injunctions which were violated where the validity of the injunctions and the statutes on which they were based was not permitted to be challenged in contempt of court proceedings which resulted from such violations. The Government argues that the case of a violated injunction whose validity is sought to be challenged is highly analogous to the case before us where a local rule of court was violated and its validity is challenged. We do not believe the analogy the Government seeks to draw is an appropriate one.

In Gamble v. Pope & Talbot, Inc., 307 F.2d 729 (3d Cir. 1962) (en banc), an attorney had violated a district court's local rules establishing a standard pretrial briefing schedule which also provided that, among other sanctions for violation of such rules, "[T]he Court, in its discretion may make such order with respect to the imposition of fines, costs and counsel fees, as is just and proper * * *." Id., at 730. The district court as punishment ordered that the defendant (who was represented by the offending attorney) be precluded from calling certain witnesses at...

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