Cooper v. Texaco, Inc. ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 91-3441
_______________
DOUGLAS W. COOPER, et al.,
Plaintiffs,
VERSUS
TEXACO, INC., et al.,
Defendants,
BERNEY L. STRAUSS, STRAUSS & ASSOCIATES,
and RICHARD LEE ROOT,
Movants-Appellants.
* * * * * * * * * *
________________
No. 91-3446
________________
IN RE: BERNEY L. STRAUSS,
Petitioner.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
(May 1, 1992)
Before SMITH and EMILIO M. GARZA, Circuit Judges, and KENT,*
District Judge.
JERRY E. SMITH, Circuit Judge:
*
District Judge of the Southern District of Texas, sitting by designa-
tion.
1
I.
On April 9, 1990, Berney L. Strauss was "suspended from the
practice of law before this court" by the United States District
Court for the Eastern District of Louisiana, en banc. This court
affirmed the suspension. In re Strauss, 931 F.2d 891 (5th Cir.
Apr. 18, 1991) (per curiam) (unpublished) (No. 90-3441). At the
time of the suspension, Strauss was a practicing attorney in
Louisiana and was the sole partner and shareholder of Strauss &
Associates, a professional law corporation. After his suspension,
he hired two associates,1 who became the attorneys of record for
any and all Strauss & Associates's cases pending in the Eastern
District.
Strauss solicited new clients, and contingency fee contracts
were entered into between Strauss & Associates and new clients in
Eastern District cases. Strauss supervised and controlled his
associates, participated in depositions,2 negotiated and approved
settlements, advised clients, and wrote letters on his professional
stationery relating to cases filed in the Eastern District. He did
not submit any papers to the court under his own name or appear in
court in the Eastern District (except to the extent that appearance
at a deposition can be deemed to be participation in a court
proceeding).
1
One of these associates was replaced in October 1990.
2
Indeed, Strauss instructed one associate not to attend a deposition
because Strauss could not attend.
2
On March 20, 1991, after a bench trial, Strauss was found
guilty of criminal contempt for violating the suspension order. On
April 10, 1991, the district court ruled that neither Strauss, nor
Strauss & Associates, nor any lawyer working for Strauss &
Associates could collect fees for any legal work performed on
Eastern District cases after the suspension order was entered.
Strauss appeals both rulings, which bear our docket No. 91-3446
(criminal contempt) and No. 91-3441 (receipt of fees).
II.
A person may not be convicted of criminal contempt for
violating an order unless that order is clear and unambiguous.
United States v. O'Quinn, 913 F.2d 221, 222 (5th Cir. 1990) (per
curiam).3 Any ambiguity must be resolved in favor of the defen-
dant. Id. (citing NBA Properties v. Gold, 895 F.2d 30, 32 (1st
Cir. 1990)). Strauss contends that the order was vague.
We find that the suspension order was unambiguous and that no
reasonable attorney could fail to understand it. Local Disciplin-
ary Rule 20.101E of the Eastern District of Louisiana, entitled
"Practicing Before Admission or During Suspension," provides,
Any person who exercises in any proceeding in this court
any of the privileges of a member of the bar or who
pretends to be entitled to do so before his or her
admission to the bar of this court, or during his or her
disbarment or suspension, is in contempt of court and
subjects himself or herself to disciplinary action.
3
There are three elements to contempt under 18 U.S.C. 401(3): (1) a
reasonably specific order, (2) violation of the order, and (3) the willful
intent to violate the order. United States v. Burstyn, 878 F.2d 1322, 1324
(11th Cir. 1989).
3
Since his suspension, Strauss consistently has exercised
privileges of a member of the bar and has pretended to be entitled
to do so. He participated in several depositions, which are
proceedings before the court. He attended the depositions as the
supervising attorney, defended a deposition alone, and advised a
client to answer a question the client had refused to answer.
Strauss portrayed his associates as assisting in Eastern
District cases; he wrote five letters relating to Eastern District
cases on Strauss & Associates letterhead and signed these in his
capacity as partner. He negotiated and approved settlements; no
settlement could be issued without his authorization. Finally,
despite his intimate involvement in the cases, Strauss took no
precautions in his correspondence, appearances at depositions, or
negotiations with opposing counsel to explain that he was partici-
pating in a limited role. No attorney reasonably could have
believed that these actions were consistent with an order of
suspension. See FTC v. Gladstone, 450 F.2d 913, 914-15 (5th Cir.
1971) (contempt conviction upheld where attorney could not have
believed his actions complied with court order).
Strauss argues that suspension is similar to the status of an
attorney not yet admitted to practice and that, as an attorney in
good standing in other jurisdictions, he should have been permitted
to participate in depositions, settlements, and any activity other
than appearing before the court. To the contrary, however,
suspension is a temporary disbarment, and Strauss reasonably could
not have believed otherwise. A cursory glance at Black's Law
4
Dictionary 1447 (6th ed. 1990) would have revealed to Strauss that
a suspension is a "temporary . . . debarring." The Local Rules of
the Eastern District of Louisiana also indicate that suspended
attorneys and visiting attorneys are treated quite differently.
Local Rule 20.06 provides that visiting attorneys may participate
in Eastern District cases if certain conditions are met. The local
rules group suspended and disbarred attorneys together, see, e.g.,
Local Rule 20.10M, and make no provision for practice during
suspension. Interpreting a similar order of suspension, the
Third Circuit held that a suspended attorney may continue to work
on cases in the jurisdiction from which he is suspended only in the
capacity of a law clerk. In re Mitchell, 901 F.2d 1179, 1181-89
(3d Cir. 1990). Reasoning that Mitchell was the first case
interpreting a suspension order and that there was significant
evidence that the defendants had acted in good faith, the Third
Circuit applied its holding prospectively.
Mitchell persuades us that a suspended attorney may act only
as a law clerk, but we decline to hold that the application of this
rule is prospective only. Unlike the defendants in Mitchell,
Strauss ignored the blanket language of Local Disciplinary Rule
20.101E and the fact that the only reported federal case discussing
suspension forbade his actions; nor is there any evidence that he
acted in good faith. These factors distinguish the instant case
from Mitchell, and we therefore apply our holding to Strauss.
5
III.
Strauss seems to challenge some of the district court's
factual findings detailing his violation of the suspension order
and the sufficiency of the evidence that he intentionally violated
the suspension order. We have reviewed the record and conclude
that these contentions are plainly without merit.
IV.
Strauss also appeals the order denying any legal fees to
Strauss & Associates for work performed after the suspension order
on six Eastern District cases.4 The clients in all six cases have
entered contingency fee contracts with Strauss & Associates; three
were clients at the time of the suspension order, and three others
became clients after the suspension order was entered. The
district court held that Strauss was entitled to recover quantum
meruit fees for work performed on the three pre-existing cases
before he was suspended but that he could recover no fees from the
three cases he assumed after the suspension order. We agree.
Strauss is the sole shareholder in Strauss & Associates and
the sole beneficiary of contingency contracts. Since Strauss was
suspended and thus forbidden from working in the capacity of
supervising attorney on any Eastern District cases, he may not
receive legal fees for performing work in violation of the order.
4
Strauss did not cite the appropriate source of jurisdiction over this
appeal in his brief. Since the April 10, 1991, order continued an injunction,
we have jurisdiction over the appeal under 28 U.S.C. § 1292(1) (West Supp.
1991).
6
Neither Strauss nor Strauss & Associates may receive legal fees for
any work on Eastern District cases performed after April 9, 1990,
and during the period of the suspension.
V.
For the reasons explained above, we AFFIRM the conviction of
criminal contempt in No. 91-3446 and AFFIRM the order denying legal
fees in No. 91-3441.
7