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In re Mann

November 01, 2002

IN THE MATTER OF: BEVERLY B. MANN, RESPONDENT.
ATTORNEY DISCIPLINARY PROCEEDING



Before Easterbrook, Kanne, and Williams, Circuit Judges.

The opinion of the court was delivered by: Easterbrook, Circuit Judge.

HEARD OCTOBER 16, 2002

Earlier this year we directed attorney Beverly Mann to show cause "why she should remain a member of this court's bar with unpaid sanctions entered against her. See Fed. R. App. P. 46(b) (1)(B)." She filed a written response and asked for a hearing, as was her right under Rule 46(c). That hearing has been held, and the matter is ready for decision.

What led to the court's order is Mann's refusal to pay financial sanctions entered under 28 U.S.C. §1927 for unreasonably and vexatiously multiplying the proceedings in an earlier case. Those orders, previously unpublished under Circuit Rule 53, are attached as appendices to this opinion so that the reader may understand the background.

Mann defends on the theory that our award of sanctions was erroneous, which in her view excuses any need to comply. She tells us that she plans to wage a collateral attack on our orders sometime in the future, in some other circuit. How there could be either jurisdiction or venue for such a challenge Mann does not explain. But whether or not the orders are subject to collateral attack, the fact remains that they are still in force. Even orders entered ex parte must be obeyed while they remain outstanding, no matter how erroneous the addressee believes them to be. See, e.g., Pasadena City Board of Education v. Spangler, 427 U.S. 424, 438-40 (1976). It is unthinkable that a lawyer who claims a privilege to disregard any final decision with which she does not agree could remain in good standing at the bar. Such a lawyer would be a hazard to clients and to herself, as well as to the courts. Half of all litigants (the losing half) may believe that the decision is incorrect, but it is essential to the operation of any legal system that unsuccessful litigants abide by the judgment unless they can persuade a higher court to set it aside. See Homola v. McNamara, 59 F.3d 647 (7th Cir. 1995).

At the hearing under Rule 46(c) Mann did not advance any extenuating circumstance (such as financial difficulties) or any legal reason why a lawyer who claims a right to disregard judgments should remain in good standing. This court recognizes that some of our decisions are incorrect -- nomination by the President and confirmation by the Senate do not confer infallibility -- but whether a given order is mistaken must be resolved through the legal process (petitions for rehearing or certiorari) rather than by the unsuccessful litigant's unilateral action. The Supreme Court denied Mann's petition for certiorari to review our decision. See 534 U.S. 1131 (2002). The underlying litigation is over. Only compliance remains -- but it has not been forthcoming.

Mann contended in her written response that the first amendment precludes any sanctions for misconduct during litigation. The problem, however, is what occurred after the litigation -- obdurate refusal to comply with the final decision. Defiance of a judicial order is not a "petition [to] the Government for a redress of grievances" protected by the first amendment. See Cooper v. Aaron, 358 U.S. 1 (1958). Objecting to the sanction itself is a form of collateral attack that we will not entertain. At all events, BE&K Construction Co. v. NLRB, 122 S. Ct. 2390 (2002), the decision on which Mann principally relies, does not establish that using §1927 to shift attorneys' fees violates the Constitution. The Court made this clear: "[N]othing in our holding today should be read to question the validity of common litigation sanctions imposed by the courts themselves... or the validity of statutory provisions that merely authorize the imposition of attorney's fees on a losing plaintiff." 122 S. Ct. at 2402. See also, e.g., Chambers v. NASCO, Inc., 501 U.S. 32 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980).

Her further argument that Rule 46 is unconstitutionally vague fares no better. True enough, Rule 46 adopts for the courts of appeals an open-ended standard of lawyers' deportment rather than a list of disciplinary rules, as all states and many district courts have done. According to Rule 46(b)(1)(B), a lawyer who "is guilty of conduct unbecoming a member of the court's bar" may be disciplined or disbarred. As far as we can tell, this provision has been challenged on due process grounds only once before, and In re Bithoney, 486 F.2d 319 (1st Cir. 1973), held that it gives lawyers adequate notice. Less than a year later, the Supreme Court came to the same conclusion with respect to Article 133 of the Uniform Code of Military Justice, which makes it a crime for a commissioned officer to engage in "conduct unbecoming an officer and a gentleman." See Parker v. Levy, 417 U.S. 733 (1974). Bithoney and Parker observed that long traditions and compiled rules of the legal and military professions flesh out the elliptical "conduct unbecoming" standard. See also In re Snyder, 472 U.S. 634, 645 (1985). We agree with and follow Bithoney today.

Given the collateral-bar rule discussed in Spangler and the holding of Cooper, no reasonable lawyer could believe herself entitled to disregard judicial decisions that bind her in personam -- even decisions that the lawyer sincerely believes to be erroneous. See also Ill. R. Prof. Conduct §8.4(a)(5) ("A lawyer shall not... engage in conduct that is prejudicial to the administration of justice."). A lawyer may advise a client to disobey a judicial order when that step is essential to secure appellate review, see Maness v. Meyers, 419 U.S. 449 (1975), but once the judicial process has run its course the order must be implemented. Chambers and Roadway Express depict lawyers' flouting judicial orders as the paradigm of sanctionable conduct. Mann thus had notice of what was expected. She could have avoided discipline by complying with the decision even after we issued the order to show cause, but she has steadfastly refused to do this. Now she must accept the consequence of her choices.

Beverly Mann is removed from the roll of attorneys authorized to practice in this court.

Appendix A

United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604

Submitted August 15, 2001*

* After an examination of the briefs and the records, we have concluded that oral argument is unnecessary, and the appeals are submitted for decision. ...


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