In re Moncier

• Decision Date: 29 April 2008
• Docket Number: Case No. 1:08-MC-9.
• Parties: In re: Herbert S. MONCIER, Esq. BPR No. 1910.
• Court: U.S. District Court — Eastern District of Tennessee

Page 768

550 F.Supp.2d 768

In re: Herbert S. MONCIER, Esq. BPR No. 1910.

Case No. 1:08-MC-9.

United States District Court, E.D. Tennessee, at Chattanooga.

April 29, 2008.

Ralph E. Harwell, Knoxville, TN, for respondent.

MEMORANDUM & ORDER

CURTIS L. COLLIER, Chief Judge.

One of the lesser-known responsibilities placed upon the federal courts is the task of admitting attorneys to practice before them and, when necessary, disciplining those attorneys. Each federal court must regulate the requirements and procedures for admission; the requirements and standards for attorneys already practicing before the court; and the procedures and determinations for those attorneys who fail to adhere to the standards of that federal court. These are among the administrative or management responsibilities of the court.

The federal courts do not rely solely upon the states to determine the fitness of an attorney for admission to practice law in federal courts. The federal courts do require an attorney who desires admission into a federal bar to be admitted first to a state bar. However, such an attorney must still apply separately to practice law in a federal court, because the federal courts have their own distinct requirements and standards for attorneys practicing before them. The federal courts also have their own requirements and standards which must be maintained for members to continue to practice in federal court. Thus, the requirements for admission and continued practice in federal and state courts are distinct. Indeed, many lawyers enjoy a long and successful career practicing in state court without ever setting foot in federal court; admission to a federal bar is not a necessity to practice law.

The federal requirements and`standards are not necessarily higher or lower than those of a state bar, but rather reflect the different nature and circumstances of the federal and state courts. As one example, practice in federal courts is generally`more specialized and more formal than practice in state courts, often due to the nature of the legal issues which are addressed in federal courts. Additionally, a federal bar is made up of attorneys from all over the United States and its territories. This is certainly true in the Eastern District of Tennessee, where a large number of the attorneys that are members of the bar of this court are from not just Tennessee, but all across the country. Federal courts must establish their own standards of practice to create an effective, functional judicial system which involves attorneys practicing throughout the United States and its territories.

The existence and importance of varying standards and expectations in the federal courts is evident in the oath attorneys must pledge to become members of that federal bar. Attorneys admitted to federal court must take the following oath:

I do solemnly swear, that to the best of my knowledge and ability, I will support and defend the Constitution of the United States against all enemies, foreign and domestic.... And, that I will demean myself as an attorney, proctor and solicitor of this Court, uprightly and according to law; so help me God.

Upon taking this oath and being approved for admission, attorneys become officers of the court.¹ At a minimum, this oath obligates attorneys admitted to the bar of a federal district court to demean themselves as an attorney uprightly and according to law. Judges of the Eastern District of Tennessee are very proud that the great majority of attorneys admitted to practice law in this district do so in a highly professional and civil manner, demonstrating respect for the court, opposing counsel, the judicial system, and the parties involved in the judicial action. The judges of this district likewise treat the attorneys before them with dignity, respect, civility, and as professionals.

Unfortunately, the Court is now confronted with one of those rare instances where an attorney admitted to the bar of the Eastern District of Tennessee has failed to "demean [himself] as an attorney, * proctor and solicitor of this Court, uprightly and according to law," as required by his oath; has engaged in unethical conduct tending to bring the court and the bar of the Eastern District of Tennessee into disrepute; and has engaged in professional misconduct of a nature that violated the Tennessee Rules of Professional Conduct as interpreted and applied by this Court.² See Wolters Kluwer Fin. Servs. Inc. v. Scivantage, 525 F.Supp.2d 448, 449-50 (S.D.N.Y.2007) ("From time to time, a lawyer's misconduct is so grave and so blatant as to demand more. When such lapses occur in the federal courts, it is not only our prerogative but our responsibility to address them and, where appropriate, impose sanctions. Indeed, as Canon 3B(3) of the Code of Conduct for U.S. Judges makes clear: `A judge should initiate appropriate action when the judge becomes aware of reliable evidence indicating the likelihood of unprofessional conduct by a ... lawyer.'") (footnotes omitted).

This case involves an attorney who refused to obey a court order, threatened to abandon a client during a court proceeding, and displayed disrespectful and contemptuous behavior towards the institutional role of the judge. The gravity of this attorney's misconduct is exacerbated by his inability to recognize and apologize for his wrongdoings, his frivolous filings with this Court, and other aggravating factors. Accordingly, for the following reasons, the Court SUSPENDS Respondent, Herbert S. Moncier, from the bar of the Eastern District of Tennessee.

1. PROCEDURAL HISTORY AND BACKGROUND

A. The Show Cause Order

On January 17, 2008, the Court ordered Respondent Herbert S. Moncier ("Respondent") to show cause why disciplinary action should not be taken against him for unethical and unprofessional conduct. The Show Cause Order made certain factual allegations regarding Respondent's conduct as counsel in a court proceeding before United States District Judge J. Ronnie Greer on November 17, 2006 (Court File No. 1). Specifically, the Show Cause Order alleged Respondent "repeatedly interrupted or spoke over the presiding judge," "accused the prosecution of engaging in a conspiracy to prevent him from trying cases due to his success in past trials," "threatened to `sit there and remain moot,'³ i.e., not provide a defense for his client, due to a potential conflict Respondent perceived," "contradict[ed] the court's admonishment," and disobeyed a direct order from the court that he stop interrupting and not say another word (id., pp. 1-3).

The Show Cause Order informed Respondent that based upon those factual allegations, it appeared "Respondent's actions constitute a violation of an order of the court, abuse of the court, disrespect for the court, contemptuous behavior directed at the court, interference and needless prolongation of the proceeding before the court, and obstructive behavior" (id., p. 1). The Show Cause Order quoted from Eastern District of Tennessee Local Rule 83.7 ("E.D.TN. LR" or "Local Rule"), which provides: "The court may impose discipline [for a violation] of the Rules of Professional Conduct [or for] unethical conduct tending to bring the court or the bar into disrepute." (Id., p. 4).

The Show Cause Order gave Respondent twenty days to show cause why disciplinary action should not be taken against him (id., p. 4). The Show Cause Order, citing E.D.TN. LR 83.7(d), specified what was required in Respondent's response (id., pp. 4-5). The Show Cause Order directed Respondent to include in his response a specific request for a hearing or a statement specifically declining a hearing (id., p. 5). Last, the Show Cause Order required Respondent to inform other judicial officers in this district before whom he had cases of the initiation of this action (id.).

The Show Cause Order, and indeed the local rules which it cited, made it clear what specific information was required in a response — namely whether the factual allegations in the Show Cause Order were accurate and, if those factual allegations were accurate, why disciplinary action would not be warranted.⁴

B. The Underlying Conduct

The Show Cause Order relates to conduct of Respondent in a court proceeding before United States District Judge J. Ronnie Greer on November 17, 2006 (see Vassar, No. 2:05-CR-75-3, Court File No. 683). Because of Respondent's conduct during the course of the proceeding, Judge Greer had Respondent taken into custody. Subsequently, Judge Greer filed a Show Cause Order alleging Respondent had committed a criminal offense, i.e. contempt of court (id., Court File No. 677). This charge was referred to the United States Attorney for this district who reviewed the charge and decided to prosecute Respondent. Thereafter, Respondent was tried and found guilty of criminal contempt of court. Judge Greer issued a written opinion explaining his findings and conclusions.⁵ United States v. Moncier, 2007 WL 1577718 (E.D.Tenn. May 30, 2007) ("Moncier II"). In his opinion, Judge Greer noted Respondent had exhibited disrespect and contempt for the institutional role of the judge. Id. at *3-4. The Court will return to this later.

Prior to the contempt of court trial, Respondent filed a motion seeking to disqualify Judge Greer from presiding over the trial. Judge Greer denied this motion in a written opinion. United States v. Moncier, 2007 WL 1206731 (E.D.Tenn. Apr. 23, 2007) ("Moncier I"). This opinion also contains relevant factual background in this matter.

II. EASTERN DISTRICT OF TENNESSEE LOCAL RULE DEALING WITH DISCIPLINARY ACTION AGAINST MEMBERS OF ITS BAR

A. Federal Court Authority to Admit and Discipline

The very concept of a court carries with it certain authority necessary for it to function. "It has long been recognized that `[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution,' powers `which cannot be dispensed...