Mitchell, In re

• Citation: 901 F.2d 1179
• Decision Date: 27 December 1989
• Docket Number: 89-8072,Nos. 86-8018,s. 86-8018
• Parties: In Re Ronald T. MITCHELL, Esq. In Re Stafford A. HILAIRE, Esq. Misc. . Submitted Under Third Circuit Rule 12(6)
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 1179

901 F.2d 1179

58 USLW 2705

In Re Ronald T. MITCHELL, Esq. In Re Stafford A. HILAIRE, Esq.

Misc. Nos. 86-8018, 89-8072.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Dec. 27, 1989.

Decided April 18, 1990.

Ronald T. Mitchell and Stafford A. Hilaire, 5A Commandment Gade, St. Thomas, Virgin Islands, pro se.

Before 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.

Operative Facts

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. ¹ The order provided that at the expiration of the two years, Mitchell could apply for reinstatement. ² It does not appear, however, that Mitchell was suspended from the bar of the District Court of the Virgin Islands. ³

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. ⁴ 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.

Issues Presented

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?

Discussion

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. Culkin, 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 "[d]iscipline 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, 793-94, 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. ⁵

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), ⁶ 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. Furthermore, 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." ⁷ 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, 648, 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]...