United States District Court, S.D. Illinois
November 16, 2004.
IN RE ERIC D. TROUTT, Attorney Disciplinary Matter.
The opinion of the court was delivered by: MICHAEL J. REAGAN, District Judge
ORDER FOLLOWING CONTEMPT/SHOW CAUSE HEARING
A. Introduction and Procedural Background
On June 25, 2004, attorney Eric Troutt was suspended from the
practice of law in this District under Rule 83.4 of the LOCAL
RULES OF THE SOUTHERN DISTRICT OF ILLINOIS. The suspension was
based on a September 2002 Order of the Supreme Court of Oklahoma
approving Troutt's resignation pending disciplinary proceedings.
Troutt sought review of his suspension by motion filed July 6,
2004. Randomly assigned to this case, the undersigned District
Judge convened a status conference/hearing on July 30, 2004,
heard argument from Troutt, and accepted supplemental material in
support of Troutt's motion.
On August 6, 2004, the undersigned District Judge granted the
relief sought by Troutt and reinstated Troutt to the roll of
attorneys admitted to practice in this Court. Later that day,
Troutt filed two pleadings. One (Doc. 12) was a motion to alter
or amend the Court's reinstatement Order. The other was a
document captioned "Response to Court Order" (Doc. 11). In that
pleading, Troutt harshly criticized the undersigned District
Judge for three sentences in the reinstatement Order. Based on
the filing of that "Response," this Court ordered Troutt to
appear at a hearing (set in October 2004) to show cause why he
should not be held in criminal contempt. See Doc. 17. In mid-August 2004, a party not involved in the disciplinary
matter before this Court filed a motion seeking a temporary
restraining order ("TRO") or injunctive relief against Troutt.
This Court conducted a hearing on the motion and denied the
request for a TRO or injunction. During the hearing on that
motion, however, certain other facts came to light which resulted
in the Court entering a Supplemental Show Cause Order on
September 3, 2004.
That Order reminded Troutt that he must appear for a show
cause/contempt hearing on October 29, 2004 before the undersigned
Judge. The September 3rd Order also directed Troutt to
respond in writing by September 24, 2004 to both the original
Show Cause Order and the Supplemental Show Cause Order. Troutt
filed a written response on September 25, 2004 (Doc. 27).
Although, technically, the response was filed belatedly, the
Court accepted and considered it.
Two days before the October 29, 2004 show cause/contempt
hearing, Troutt moved to continue the hearing due to personal,
confidential reasons. The Court (without requiring Troutt to
delineate the personal, confidential reasons) immediately issued
an Order continuing the hearing for two weeks, "so that he
(Troutt) may rest and get well" (Doc. 31). The hearing was
rescheduled for November 12, 2004, one of very few open slots on
the Court's docket/calendar for the month of November. The Court
also reiterated that, at the show cause/contempt hearing, Troutt
would be permitted not only to orally argue the points advanced
in his September 25th response to the Show Cause Orders but
also to call witnesses and present evidence relevant to the
contempt issues. On November 10, 2004 (again, two days before the scheduled
hearing), Troutt moved the Court to cancel the hearing and
instead schedule a status conference in this matter (Doc. 32).
The Court denied the motion immediately (Doc. 33).
The following day, November 11, 2004 (a day on which the
Courthouse was closed for the observance of Veteran's Day),
Troutt filed a motion again asking the Court to delay the show
cause/contempt hearing (Doc. 34). That motion hinted that Troutt
would not appear at the hearing the following day, due to
commitments in other Courts, before other Judges.
Because the undersigned Judge and one of his law clerks both
were working from their respective homes on the Court holiday,
they were electronically alerted to Troutt's Veteran's Day filing
and were able to draft and e-file an Order that same day denying
Troutt's motion and emphasizing that he must appear at the
November 12th hearing, that the Court would render a decision
with or without Troutt present, and that Troutt's failure to
appear November 12th would be construed as contumacious
behavior (Doc. 35).
Despite having been given multiple notices of the hearing
(Docs. 17, 23, 31, 33, 35), Attorney Troutt failed to appear at
the show cause/contempt hearing.
B. Jurisdiction and Venue
Eric Troutt has been a lawyer practicing in this District since
February 14, 2003. Local Rule 83.4 of this District provides
that the Judges of this Court, in furtherance of their inherent
power and responsibility to supervise the conduct of attorneys
admitted to practice before them, may conduct disciplinary
proceedings. Additionally, 18 U.S.C. § 401 provides the federal district
courts with general contempt authority. Section 401 provides:
A court of the United States shall have power to
punish by fine or imprisonment, or both, at its
discretion, such contempt of its authority, and none
(1) Misbehavior of any person in its presence or so
near thereto as to obstruct the administration of
justice; . . . [and]
(3) Disobedience or resistance to its lawful writ,
process, order, rule, decree, or command.
Furthermore, FEDERAL RULE OF CRIMINAL PROCEDURE 42(b)
empowers a United States District Court to "summarily punish a
person who commits criminal contempt in its presence if the judge
saw or heard the contemptuous conduct and so certifies." The
undersigned District Judge now certifies that he did witness,
first-hand, contemptuous conduct by attorney Eric Troutt.
In the original Show Cause Order (Doc. 17), the Court outlined
three reasons Troutt should show cause why he ought not be held
in criminal contempt.
First, the Federal Rules of Civil Procedure provide
no procedural vehicle for an attorney who is
dissatisfied with a Court Order to excoriate the
Judge issuing that Order. In appropriate
circumstances, motions may be filed. But lawyers may
not engage in mordacious attacks on the Court via
diatribes labeled as a "Responses" to Orders.
Second, the substantive contents of the Response
warrant issuance of a Show Cause Order. Troutt
pointedly accuses the undersigned Judge of
disparaging his character and maligning his
performance. . . .
Third, Troutt's Response not only constitutes an
unbridled attack on the undersigned Judge's
authority, Troutt also appears to be using this
Court's electronic case filing system as a bully
pulpit from which to belittle his former business
partner, attorney Terry Sharp. The Response accuses
Sharp of "fraudulently billing clients . . . for a
long time" and snidely quips that Sharp "has had quite the
RICO operation going." Doc. 11, p. 2. Troutt then
challenges this Court to meet its obligation to
discipline Sharp "for such gross violations." Id.
If Troutt truly believes that the undersigned Judge
has shirked his judicial duties, he should file a
complaint with the Clerk of the United States Court
of Appeals for the Seventh Circuit, for transmission
to Chief Judge Joel Flaum. If Troutt has evidence
that his former law partner (Terry Sharp)
fraudulently billed clients or masterminded a RICO
operation, then Troutt likely has an obligation,
under In re Himmel, 533 N.E.2d 790 (Ill. 1988),
to report Sharp to the Illinois Attorney Registration
and Disciplinary Commission. . . . Clearly, though,
this closed miscellaneous case is not the venue in
which Troutt should vent these accusations. At best,
Troutt's jeremiad is inappropriate. At worst, it
constitutes contempt of Court.
The original Show Cause Order plainly stated that the Court was
contemplating holding Troutt in criminal contempt and explained
that, under the law of this Circuit, contempt orders are
considered criminal if the purpose is "to punish the contemnor,
vindicate the court's authority, or deter future misconduct." In
re Grand Jury Proceedings, 280 F.3d 1103
, 1107 (7th Cir.),
cert. denied, 536 U.S. 925 (2002). The Order also
acknowledged that criminal contempt requires proof beyond a
reasonable doubt. See Doc. 17, p. 2, citing U.S. v. Dowell,
257 F.3d 694
, 699 (7th Cir. 2001).
In the Supplemental Show Cause Order (Doc. 23), the Court added
three more potential grounds for holding Troutt in criminal
(1) Troutt's apparent filing of five pleadings in
Case No. 04-cv-4100-JLF, after he was suspended and
before he was reinstated to practice in this
District (Docs. 18-22);
(2) a six-page ex parte communication faxed to the
undersigned Judge on August 24, 2004 (now part of the
record in Case No. 04-mc-0029-MJR at Doc. 19) which,
inter alia, stated that the undersigned Judge is
"doing the bidding" and "dirty work" of other District Judges in
Benton, Illinois; and
(3) a flier entitled "Corruption Alert!" accusing
Judge George Timberlake of the Second Judicial
Circuit of Illinois of being "for sale," "bought and
paid for," and disinterested in "upholding the law"
(that flier was admitted into evidence at the August
26, 2004 hearing held before the undersigned Judge).
For the purposes of this show cause/contempt proceeding, the
Court dispenses with the final potential ground for a finding of
contempt (listed third in the Supplemental Show Cause Order) and
determines that Troutt's distribution of the "Corruption Alert!"
flier is not cause to hold Troutt in contempt in this Court.
While distribution of such a flier is inconsistent with the
professional decorum expected of attorneys in the State of
Illinois, Troutt's actions relating to the flier are best
resolved in a state court forum. They are, however, indicative of
his pattern of inappropriate behavior in judicial settings.
The Court concludes that the other five grounds quoted above
(which were outlined in full in the original Show Cause Order and
Supplemental Show Cause Order), constitute a valid basis for
holding Troutt in contempt. Specifically, the Court FINDS BEYOND
A REASONABLE DOUBT that Troutt's conduct in this Court
constitutes criminal contempt.
Troutt filed five pleadings in this Court after he was
suspended and before he was reinstated to practice here. That
alone would warrant the imposition of further discipline. (The
Court rejects Troutt's claim that he filed those pleadings in his
capacity as a trustee, and thus the filings did not violate the
terms of his suspension.) Moreover, Troutt's failure to appear in Court at the show
cause/contempt hearing on November 12, 2004 after this Court
continued the hearing at his request and reminded him via five
Orders that he must appear at the hearing (where he could present
both evidence and argument) bolsters the conclusion that
Troutt's pattern of disregard for the authority and process of
this Court justify finding him in contempt.
In summary, Troutt's vitriolic attack on the Court (labeled as
a "Response" to the Court's reinstatement Order), his use of this
Court's electronic filing system to abuse his former business
partner, his filing of five pleadings in Case No. 04cv-4100-JLF
while he was suspended from practice in this District, his
six-page ex parte communication faxed to the undersigned Judge,
and his ultimate failure to appear at the show cause/contempt
hearing warrant this Court finding attorney Eric Troutt in
criminal contempt and suspending him from practice in this
District, on the terms below described.
Finally, the Court DENIES Troutt's motion to alter or amend
the Court's reinstatement Order (Doc. 12).
Troutt has demonstrated no basis for the Court to alter or
amend its Order. FEDERAL RULE OF CIVIL PROCEDURE 59(e) permits
a Court to alter, amend, or reconsider an Order based on an
intervening change in the law, new evidence or a clear legal
error. See Baicker-McKee, Janssen & Corr, FEDERAL CIVIL RULES
HANDBOOK, p. 835 (2002). See also Publishers Resource, Inc. v.
Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir.
1985). In his challenge to the Court's reinstatement Order,
Troutt identified no change in the law, newly discovered
evidence, or clear legal error. D. Conclusion
Having found, beyond a reasonable doubt, that Eric D. Troutt's
conduct before this Court constitutes criminal contempt, the
Court hereby SUSPENDS Troutt from the practice of law in this
District Court for a period of five (5) years.
Troutt is alerted that the Chief Judge of this District Court
may require Troutt to complete continuing legal education ("CLE")
that addresses legal ethics, as a condition to his reinstatement
to practice in this District.*fn1
Troutt SHALL ATTACH a copy of this Order to his application
for admission (whether generally or on a pro hac vice basis) to
practice before any United States District Court. If Troutt seeks
readmission here, he must also show proof that he has made
state courts where he has practiced law aware of this Order.
The Clerk of this Court SHALL PROVIDE copies of this Order to
the ethics authorities in the state and federal courts in which
Troutt currently is licensed or authorized to practice law.
IT IS SO ORDERED.