noting that court’s previous recognition that “the Sixth Amendment right to chosen counsel is not absolute and could be revoked to serve a compelling purpose, such as the efficient and orderly administration of justice”
How later courts described this case
- noting that court’s previous recognition that “the Sixth Amendment right to chosen counsel is not absolute and could be revoked to serve a compelling purpose, such as the efficient and orderly administration of justice”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 06-10447
v.
D.C. No.
PATRICIA ANN ENSIGN, aka Patricia CR-03-00344-MHM
Moats aka Patricia Poseley,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 06-10457
v.
D.C. No.
PATRICIA ANN ENSIGN, aka Patricia
Moats aka Patricia Poseley,
CR-03-00344-6-
MHM
Defendant,
OPINION
OSCAR A. STILLEY,
Appellant.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Argued and Submitted
April 16, 2007—San Francisco, California
Filed July 5, 2007
Before: Alfred T. Goodwin, Dorothy W. Nelson, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
8027
8030 UNITED STATES v. ENSIGN
COUNSEL
Oscar Stilley of Fort Smith, Arizona, and Anders Rosenquist,
Rosenquist & Associates of Phoenix, Arizona, for defendant-
appellant Patricia Ann Ensign.
Oscar Stilley of Fort Smith, Arizona, for appellant Oscar Stil-
ley.
Mark S. Determine, Assistant United States Attorney, and
Eileen J. O’Connor, Assistant Attorney General, and Alan
Hechtkopf, Washington, D.C., for plaintiff-appellee.
UNITED STATES v. ENSIGN 8031
OPINION
CALLAHAN, Circuit Judge:
Patricia Ann Ensign appeals from her conviction on four
counts of willful failure to file tax returns, and Oscar Stilley
seeks review of the district court’s refusal to allow him to pro-
ceed pro hac vice as Ensign’s attorney. We determine that the
district court acted within its discretion in declining to allow
Stilley to represent Ensign pro hac vice and that Stilley lacks
standing to appeal the district court’s orders.
I.
Ensign, along with eight other individuals, was charged in
a 27-count indictment with one count of conspiring to defraud
the government for the purposes of impeding and impairing
the Internal Revenue Service (“IRS”) in violation of 18
U.S.C. § 371, and a number of counts of willful failure to file
tax returns. Ensign and four co-defendants were eventually
tried before a jury. Ensign was acquitted on the conspiracy
charge, but convicted on four counts of willful failure to file
tax returns. Following her conviction, Ensign filed a timely
notice of appeal claiming inter alia that her Sixth Amendment
right to counsel of her choice was violated by the district
court’s orders declining to allow Stilley to represent her.1 In
addition, Stilley filed a notice of appeal on his own behalf.
Stilley first became involved in this case in the fall of 2004,
when Ensign, through her appointed counsel, Alex Gonzalez,
sought to have Stilley appointed as co-counsel or advisory
counsel. Stilley was admitted to the practice of law in Arkan-
sas, but was not admitted to the district court’s bar or the Ari-
zona bar. On November 19, 2004, the district court appointed
Stilley as legal advisor/consultant for the co-defendants with
1
Ensign’s remaining claims are addressed in a memorandum disposition
filed concurrently with this opinion.
8032 UNITED STATES v. ENSIGN
compensation under the Criminal Justice Act (“CJA”) at $150
per hour for up to 75 hours.
On January 25, 2005, Ensign moved to associate Stilley as
a CJA attorney, pro hac vice. The motion was accompanied
by Stilley’s affidavit stating that he was admitted to the prac-
tice of law in Arkansas, was not presently suspended or dis-
barred, but had “one disciplinary proceeding that has yet to be
resolved and has been pending since 2002 (no hearing has
been set on such proceeding as of yet).” That same day, the
district court appointed Stilley as lead counsel for Ensign with
a compensation rate of $90 per hour under the CJA.
On February 16, 2005, the government submitted under
seal evidence concerning disciplinary actions against Stilley
in Arkansas. At a pre-trial hearing on March 18, 2005, after
excusing all defendants and counsel except Stilley and
Ensign, the district judge asked Stilley whether he had been
subjected to disciplinary proceedings in Arkansas and
directed him to respond in writing.
On April 19, 2005, after having considered Stilley’s written
response, the district court entered an order under seal termi-
nating Stilley’s representation of Ensign as lead counsel, legal
advisor, and/or consultant under the CJA. The court explained
that usually the Federal Public Defender’s Office screened
attorneys for the CJA Defense Panel and required disclosure
of all pending disciplinary proceedings, but because Stilley
was appointed through “means other than the typical applica-
tion process,” the Court was obligated to conduct its own
review of Stilley.
The court proceeded to exercise its discretion by withdraw-
ing Stilley’s conditional appointment. The court noted that it
had been unaware of the disciplinary matters concerning Stil-
ley pending in Arkansas, and concluded that Stilley presented
“issues which would preclude his appointment or qualifica-
tion to the district’s CJA panel in the ordinary course of panel
UNITED STATES v. ENSIGN 8033
selection.” The court set forth several reasons for its decision.
First, it noted that during the lengthy trial in this case, Stilley
might be required to serve a 30-day sentence imposed by the
Arkansas Circuit Court. Second, the court observed that Stil-
ley had not been forthcoming regarding the various matters
pending in Arkansas. Third, the court commented that the
present proceedings in Arkansas concerning Stilley did not
appear to be isolated or infrequent as Stilley seemed to have
been “subject to sanctions and discipline proceedings in
Arkansas on several occasions.” Finally, the court observed
that “instead of responding to the Court’s specific questions,
Mr. Stilley submitted a brief devoting more than twenty pages
to collaterally attacking the various proceedings in Arkansas”
and concluded that the fact that Stilley “was either unable or
unwilling to focus on the key issue, further lends credence to
this Court’s concerns regarding his representation.”
The April 15, 2005 order also addressed its impact on
Ensign. The order indicated that it did not prejudice Ensign
because during the two-month period that Stilley acted as
Ensign’s lead counsel, Ensign had been concurrently repre-
sented by Mr. Gonzalez, who had been her attorney of record
since March 2004. In addition, the order concluded that
Ensign’s Sixth Amendment right to counsel of her choice was
not implicated because Ensign “all along has had capable and
competent counsel, and it is well settled indigent defendants
do not have the right to have a particular counsel appointed.
United States v. Mack, 362 F.3d 597, 599 (9th Cir. 2004).”
On April 22, 2005, the district court denied Ensign’s
motion for reconsideration, and on May 3, 2005, it denied
Ensign’s objection to the removal of Stilley as a defense con-
sultant. Ensign’s and Stilley’s requests for interlocutory relief
from this court were unsuccessful. On May 20, 2005, we indi-
cated that the order revoking Stilley’s pro hac vice status was
not appealable, and on June 6, 2005, we denied Ensign’s and
Stilley’s petition for a writ of mandamus.
8034 UNITED STATES v. ENSIGN
Jury selection for the trial of Ensign and her co-defendants
commenced on May 19, 2005. On June 7, 2005, Ensign
informed the court that she had retained Stilley as her attorney
and requested that he be allowed to appear as her counsel, pro
hac vice. The district court declined to interrupt proceedings
to consider the request, but later that day the court considered
the request during a break in the trial.
After limited argument on the request, the district court
declined to allow Stilley to appear pro hac vice. The court
opined that regardless of whether Stilley sought appointment
under the CJA or pro hac vice, it still had an obligation to
ensure that he was qualified to proceed and that Stilley had
not satisfied the court’s previously expressed concerns regard-
ing his ethical fitness. The court further noted that (1) there
were disciplinary proceedings pending against Stilley in
Arkansas, (2) some of the pleadings that he had filed during
the time that he was admitted pro hac vice were of dubious
merit and possibly submitted for improper purposes such as
delay, and (3) the timing of the request was significant.
Expanding on this last point, the court noted that Stilley had
been relieved of his responsibilities in April, trial had started
two weeks earlier, and it would be disruptive to bring Stilley
into the case at that time. The court concluded that the request
that Stilley appear pro hac vice sought a privilege not a right,
and denied the request as a matter within its discretion.
The court offered further explanation of its order in
response to questions from Ensign. When Ensign objected
that Stilley had done an excellent job and had never been dis-
respectful of the court, the district judge agreed that he had
always been very respectful. When Ensign asked if Stilley
could work for her in any capacity, the district court
responded that the motion was only “to associate Oscar Stil-
ley pro hac vice as lead counsel,” and that Ensign’s counsel
could pursue Stilley as a consultant even though the district
judge thought that might be problematic.
UNITED STATES v. ENSIGN 8035
II.
Our general rule is that the denial of a motion to appear pro
hac vice is reviewed for abuse of discretion, except to the
extent that the appeal raises an issue of law, which is
reviewed de novo. United States v. Walters, 309 F.3d 589,
591-92 (9th Cir. 2002). See United States v. Ries, 100 F.3d
1469, 1472 (9th Cir. 1996) (“We have determined that the
judge was well within his discretion in concluding that [the
attorney] was not living up to his responsibilities.”). Ensign,
like the defendants in Walters and Ries, has filed an appeal
from her conviction and sentence which challenges the district
court’s refusal to allow her attorney to appear pro hac vice.
III.
[1] To the extent that Ensign challenges the April 19, 2005
order revoking Stilley’s CJA appointment as violating her
right to counsel under the Sixth Amendment, the challenge is
not persuasive. The district court’s assertion that Ensign did
not have a right under the Sixth Amendment to have Stilley
appointed CJA counsel pro hac vice was recently reaffirmed
by the Supreme Court in United States v. Gonzalez-Lopez,
126 S. Ct. 2557, 2565 (2006). The Court held that “the right
to counsel of choice does not extend to defendants who
require counsel to be appointed for them.” Id. The district
court’s April 19, 2005 order only revoked Stilley’s pro hac
vice status as CJA appointed counsel. Ensign’s and Stilley’s
actions following the April order, including their failure to
seek Stilley’s admission as retained counsel until after trial
had commenced, reflect their understanding that the April
order only denied Stilley leave to participate as CJA
appointed counsel. Accordingly, the April order did not impli-
cate Ensign’s right to counsel of choice, and because Ensign
has failed to argue that the revocation was an abuse of the dis-
trict court’s discretion, she has not demonstrated that she is
entitled to any relief from the order.
8036 UNITED STATES v. ENSIGN
IV.
[2] The district court’s June 25, 2005 denial of Ensign’s
motion to appoint Stilley as her trial counsel, however, does
implicate constitutional concerns. We have held that a “defen-
dant’s right to the counsel of his choice includes the right to
have an out of-state lawyer admitted pro hac vice.” Walters,
309 F.3d at 592 (internal quotations marks and citations omit-
ted); see also Ries, 100 F.3d at 1471.
[3] However, in both Walters and Ries, we recognized that
the Sixth Amendment right to chosen counsel is not absolute
and could be revoked to serve a “compelling purpose,” such
as “the efficient and orderly administration of justice.” Wal-
ters, 309 F.3d at 592; Ries, 100 F.3d at 1471. In Ries, we
stated:
Where, as here, an out-of-state attorney strongly sug-
gests through his behavior that he will neither abide
by the court’s rules and practices — thus impeding
the “orderly administration of justice” — nor be
readily answerable to the court, the judge may, con-
sistent with the “compelling purpose” standard of
[United States v.] D’Amore, 56 F.3d [1202] at 1204,
[(9th Cir. 1995)] reject his pro hac vice application.
Reis, 100 F.3d at 1471. Similarly, in Walters, we explained
that a defendant’s exercise of his right to counsel of choice
could not unduly hinder the fair, efficient and orderly admin-
istration of justice, but noted that:
The mere fact that a defendant seeks to retain an out-
of-state attorney does not hinder the efficacious
administration of justice. His choice of counsel must
be respected unless it would unreasonably delay pro-
ceedings or burden the court with counsel who was
incompetent or unwilling to abide by court rules and
ethical guidelines.
UNITED STATES v. ENSIGN 8037
Walters, 309 F.3d at 592.2
Our approach is consistent with the Supreme Court’s recent
opinion in Gonzalez-Lopez, where the Court wrote:
Nothing we have said today casts any doubt or
places any qualification upon our previous holdings
that limit the right to counsel of choice and recog-
nize the authority of trial courts to establish criteria
for admitting lawyers to argue before them. As the
dissent too discusses, post, at 2567, the right to coun-
sel of choice does not extend to defendants who
require counsel to be appointed for them. See Wheat
[v. United States], 486 U.S. [153], at 159, [1988] . . .
Caplin & Drysdale [v. United States], 491 U.S.,
[617] at 624, 626 [1989] . . . . Nor may a defendant
insist on representation by a person who is not a
member of the bar, or demand that a court honor his
waiver of conflict-free representation. See Wheat,
486 U.S., at 159-160, . . . We have recognized a trial
court’s wide latitude in balancing the right to counsel
of choice against the needs of fairness, id., at 163-
164, . . . and against the demands of its calendar,
Morris v. Slappy, 461 U.S. 1, 11-12, . . . (1983). The
court has, moreover, an “independent interest in
ensuring that criminal trials are conducted within the
ethical standards of the profession and that legal pro-
ceedings appear fair to all who observe them.”
Wheat, supra, at 160, . . .
126 S. Ct. at 2565-66.
[4] Applying this case law, we conclude that the district
2
In Walters, 309 F.3d at 592, and Ries, 100 F.3d at 1472, we further
held that in denying a pro hac vice application the trial judge should set
forth the reasons for the benefit of the defendant and the reviewing court.
Here, the district judge clearly stated her reasons.
8038 UNITED STATES v. ENSIGN
court’s denial of Ensign’s request on June 25 to have Stilley
represent her pro hac vice was supported by the compelling
purposes inherent in the fair, efficient and orderly administra-
tion of justice.3 The district court gave three reasons for its
order. First, it expressed concerns regarding Stilley’s ethical
fitness. Second, the court noted that some of the pleadings
Stilley filed while he was Ensign’s counsel appeared to be
improper. Third, the court was concerned with the timeliness
of the request because the trial had started two weeks earlier
and opening arguments were scheduled to begin immediately.
All of the trial court’s concerns were justified. Its concerns
with Stilley’s ethics were reasonably based not only on pend-
ing disciplinary proceedings in Arkansas, but also on Stilley’s
failure to state in his pro hac vice application that he was sub-
ject to pending disciplinary proceedings and on his failure to
directly address those proceedings when so requested. This,
combined with Stilley’s failure to cure his contempt of the
Arkansas court orders, raised concerns that he would “neither
abide by the court’s rules and practices,” nor “be readily
answerable to the court.” Ries, 100 F.3d at 1471. Furthermore,
the record reveals that following his appointment as Ensign’s
counsel, Stilley had filed numerous motions of dubious merit.
Although a defendant is entitled to a zealous defense, the
number and nature of the motions allowed for a reasonable
concern that Stilley might consider obstruction to be part of
the defense he would proffer for Ensign.
[5] Moreover, as the consolidated trial of Ensign and four
other defendants had already started and was scheduled to
continue for a number of weeks, the addition of Stilley at the
3
Unlike the situation in Gonzalez-Lopez where the trial court ordered
the attorney to have no contact with the attorney trying the case or the
defendant, 126 S. Ct. at 2560, here the district judge imposed no such
restrictions. When specifically asked by Ensign if Stilley could be an
expert witness or consultant, the district judge indicated that this was a
decision for her appointed counsel.
UNITED STATES v. ENSIGN 8039
counsel table would likely have engendered considerable con-
fusion and delays. Jurors could be distracted by the sudden
inclusion of a new attorney. Also, the addition of a new attor-
ney could interfere with the other defendants’ rights to a fair
trial.4 Accordingly, the district court’s denial of Ensign’s
motion was a reasonable exercise of its wide latitude in bal-
ancing the right to counsel against the demands of the court’s
calendar in an effort to maintain the fair, efficient and orderly
administration of justice. See Gonzales-Lopez, 126 S. Ct. at
2565-66. The district court’s order denying Ensign’s motion
to appoint Stilley pro hac vice is affirmed.
V.
Stilley also seeks appellate review on his own behalf of the
district court’s refusal to allow him to appear pro hac vice as
Ensign’s counsel. He asserts that he “was denied payment on
substantial amounts of time worth tens of thousands of dol-
lars” and that his professional reputation was damaged.
[6] Initially, we note that regardless of Ensign’s right to
counsel under the Sixth Amendment, Stilley has not asserted
that he had a right to be admitted pro hac vice, and we know
of no authority to that effect. We have held that “the decision
to grant pro hac vice status is discretionary.” Gallo v. United
States Dist. Court, 349 F.3d 1169, 1185 (9th Cir. 2003); see
also Ries, 100 F.3d at 1472 (“We have determined that the
4
It is unclear whether the district court could have satisfied all of the
competing rights implicated by Ensign’s motion. If Stilley’s approach to
Ensign’s defense would have been different from the defense proffered by
Gonzalez, the other defendants, if convicted, could have argued that the
interjection of Stilley as defense counsel after trial started denied them
their rights to a fair trial. On the other hand, if Stilley’s approach would
have been consistent with the defense offered by Gonzalez, there was less
reason for Ensign to change horses midstream, although she was entitled
to attempt to do so, regardless of its wisdom. In any event, addressing all
the concerns raised by the belated motion to add counsel would have sub-
stantially interfered with, and delayed, the ongoing trial.
8040 UNITED STATES v. ENSIGN
judge was well within his discretion in concluding that [the
attorney] was not living up to his responsibilities.”). Although
we noted in both Gallo and Ries that this discretion is not
unlimited, this does not convert the denial of a privilege into
an injury sufficient to give the attorney standing to appeal.
Our cases that have considered when an attorney has a suf-
ficient injury-in-fact to invoke appellate jurisdiction in his or
her own right lead us to conclude that Stilley lacks standing.5
In United States v. Chesnoff, 62 F.3d 1144 (9th Cir. 1995), an
attorney and his law firm sought to appeal an order disqualify-
5
Our opinion is limited to determining whether an attorney has standing
to appeal an order on his or her own behalf. The parties have not briefed,
and we do not address, the question of whether a particular order is
appealable. Our precedents suggest that this is not always clear. In Weiss-
man v. Quail Lodge, Inc., 179 F.3d 1194, 1196 (9th Cir. 1999), the attor-
ney sought review of an order restricting his right to file objections to
proposed class action settlements in all future cases and we held that we
had jurisdiction to consider his appeal of the post-judgment order under
28 U.S.C. § 1291. In United States v. Talao, 222 F.3d 1133, 1135, 1141
(9th Cir. 2000), we vacated the sanction against an attorney when our
jurisdiction was invoked by the attorney filing a petition for a writ of man-
damus. In Cole v. United States Dist. Court, 366 F.3d 813, 816 (9th Cir.
2004), we denied a petition for a writ of mandamus taken by a party from
an interlocutory order disqualifying counsel in a civil case, noting that
such an order was reviewable by mandamus, but suggesting that it might
not be reviewed on appeal, even from a final order. Also, in Gallo, 349
F.3d at 1176, we commented in a civil case that “the denial of a petition
for admission to a district court bar is neither a final order appealable
under 28 U.S.C. § 1981 . . . nor an interlocutory order appealable under
28 U.S.C. § 1292.” However, in In re North, 383 F.3d 871, 874-75 (9th
Cir. 2004), we held in an appeal by the attorney that the district court’s
order “was a final decision on attorney suspension reviewable under our
prior cases concerning attorney suspension and disbarment.” Here, Stilley
asserts that we have jurisdiction pursuant to 28 U.S.C. § 1291 over an
appeal from a final judgment. We hold only that we have jurisdiction to
review Stilley’s assertion that he was substantially injured by the district
court’s orders; either on appeal pursuant to 28 U.S.C. § 1291, or pursuant
to 28 U.S.C. § 1651(a), if we treat the appeal as a petition for writ of man-
damus. As we determine that Stilley has not sustained a cognizable injury,
we dismiss his appeal.
UNITED STATES v. ENSIGN 8041
ing them from continuing to represent their client. Id. at 1145.
We held that they lacked standing to appeal and dismissed the
appeal. Id. In doing so, we first outlined the constitutional
dimensions of the issue noting that the “litigant must have
‘suffered some injury-in-fact, adequate to satisfy Article III’s
case-or-controversy requirement.’ ” Id. (quoting Caplin &
Drysdale v. United States, 491 U.S. 617, 623 n. 3 (1989)). We
then quoted the Supreme Court’s statement in Valley Forge
Christian College v. Americans United for Separation of
Church & State, 454 U.S. 464, 472 (1982), that at a minimum
Article III requires that the appellant “show that he personally
has suffered some actual or threatened injury as a result of the
putative illegal conduct.” Chesnoff, 62 F.3d at 1146. We fur-
ther noted, again citing Caplin & Drysdale, 491 U.S. at 623
n. 3, that even if the Article III requirement is met, “we must
then determine whether prudential considerations favor per-
mitting the litigant to proceed with a claim on a third party’s
behalf.” 62 F.3d at 1145. We concluded in Chesnoff that
appellants lacked standing because they “nowhere identified
any injury to them caused by the district court’s disqualifica-
tion order.” Id. at 1146 (emphasis in original).
In Weissman v. Quail Lodge, Inc., 179 F.3d 1194 (9th Cir.
1999), and United States v. Talao, 222 F.3d 1133 (9th Cir.
2000), we further considered what type of order concerning
an attorney would allow the attorney to appeal. In Weissman,
we indicated that although a sanction against an attorney
could be appealable, “words alone will constitute a sanction
only ‘if they are expressly identified as a reprimand.’ ”6
6
Addressing the district court order there in issue, the panel wrote:
[T]he court did not identify the allegedly derogatory comments
in the Order as a reprimand. Rather, the comments served to
explain why the court concluded that it was necessary to place
restrictions on Schonbrun’s right to file objections to future pro-
posed ADA class action settlements. Because the words them-
selves do not constitute sanctions, we conclude that they are not
independently reviewable.
Weisman, 179 F.3d at 1200.
8042 UNITED STATES v. ENSIGN
Weissman, 179 F.3d at 1200 (quoting Williams v. United
States, 156 F.3d 86, 93 (1st Cir. 1998)). In Talao, an attorney
appealed a district court order finding that she had violated a
rule of ethical conduct and stating that it would refer her con-
duct to the state bar. 222 F.3d at 1136. We held that this order
was per se a sanction, and hence appealable, because “the dis-
trict court made a finding and reached a legal conclusion that
Harris knowingly and wilfully violated a specific rule of ethi-
cal conduct.” Id. at 1138. We reconciled our holding with
Weissman and Williams by noting that “a formal finding of a
violation eliminates the need for difficult line drawing in
much the same way as a court’s explicit pronouncement that
its words are intended as a sanction.” Id. Although other cir-
cuits have adopted slightly different standards for determining
when an attorney may in his or her own right appeal an order,
Talao remains the law in this circuit.7
7
In United States v. Gonzales, 344 F.3d 1036, 1040 (10th Cir. 2003), the
Tenth Circuit noted that it had held that counsel have standing to appeal
orders that “directly aggrieve them,” but declined to decide whether an
attorney was directly aggrieved by “an order simply finding misconduct
on his or her part.” The court noted that the circuits were divided over
whether a written decision finding attorney misconduct, but not imposing
any type of sanction, could be appealed. It observed:
On one end of the spectrum is the Seventh Circuit, which has
held that an attorney may not appeal from an order that finds mis-
conduct but does not result in monetary liability, despite the
potential effects of the finding on the attorney’s professional rep-
utation. See Clark Equip. Co. v. Lift Parts Mfg. Co., 972 F.2d
817, 820 (7th Cir. 1992). On the other end of the spectrum is the
Fifth Circuit, which has held that a written order finding an attor-
ney engaged in professional misconduct, but not imposing mone-
tary liability or other sanctions, constitutes an appealable injury.
See Walker v. City of Mesquite, 129 F.3d 831, 832-33 (5th
Cir.1997) (stating “the importance of an attorney’s professional
reputation, and the imperative to defend it when necessary, obvi-
ates the need for a finding of monetary liability or other punish-
ment as a requisite for . . . appeal”). Other circuits lie somewhere
between. See Weissman v. Quail Lodge, Inc., 179 F.3d 1194,
1199 (9th Cir.1999) (concluding that a formal finding of a viola-
tion of a specific rule of ethical conduct is akin to an explicit pro-
UNITED STATES v. ENSIGN 8043
[7] Here, the district court’s orders concerning Stilley did
not create a sufficient injury-in-fact to provide Stilley with
standing to appeal. In Chesnoff, the disqualified attorney was
retained counsel and had an expectation of earning a fee. Stil-
ley, however, first sought appointment under the CJA, and
subsequently, when he sought to represent Ensign at trial, he
admitted that Ensign was not at that time able to pay him. It
follows that neither of the district court’s orders in issue
resulted in a monetary loss to Stilley.8
[8] Furthermore, the district court’s orders did not other-
wise injure Stilley in a manner that would confer standing to
appeal. The order denying Ensign’s motion at trial for the
appointment of Stilley pro hac vice was based largely on the
district court’s concerns with the timing of the motion, and
those concerns do not necessarily reflect on Stilley’s perfor-
mance or competence. It is true that the district court
expressed reservations about Stilley’s ethics, but it made no
finding of ethical violation and imposed no sanction. To the
contrary, the judge specifically commented that Stilley was
always respectful of the court.
nouncement of a reprimand and is thus appealable); In re
Williams, 156 F.3d 86, 92 (1st Cir.1998) (concluding that only
judicial comments expressly identified as reprimands or sanctions
are appealable); Sullivan v. Comm. on Admissions & Grievances,
395 F.2d 954, 956 (D.C. Cir. 1967) (holding a district court’s
written finding that attorney violated several judicial canons, but
declining to impose sanctions, was appealable).
Id. at 1039-40.
8
Stilley has not explained the basis for his assertion that he “was denied
payment on substantial amounts of time worth tens of thousands of dol-
lars.” There is nothing in the record to indicate that Stilley rendered ser-
vices during the time that he was appointed under the CJA for which he
was not paid. In any event, such a claim would have to be made in the trial
court in the first instance. More to the point, we do not see how Stilley
could expect to be compensated for any actions he took either in seeking
leave to proceed pro hac vice, or after his requests for leave to proceed pro
hac vice had been denied.
8044 UNITED STATES v. ENSIGN
In both Talao and Weissman we held that to be appealable
the order must clearly and intentionally sanction the attorney.
We held that words alone constitute a sanction only if “ex-
pressly identified as a reprimand.” Weissman, 179 F.3d at
1200. We also commented that a formal finding of a violation
of a specific rule of ethical conduct avoids the need for diffi-
cult line drawing. Talao, 222 F.3d at 1138. We conclude that
because the district court’s denial of Ensign’s motion to have
Stilley represent her pro hac vice at trial was neither a sanc-
tion nor a formal finding of a violation of a specific rule of
ethical conduct, it did not injure Stilley sufficiently to give
him standing to appeal on his own right.
[10] The district court’s revocation of Stilley’s CJA
appointment also did not create an injury-in-fact adequate to
satisfy Article III’s case-or-controversy requirement. Again,
the court did not make any formal finding of a violation of
any rule of ethical conduct and did not issue any sanction.
Rather, it held that Stilley had failed to demonstrate that he
qualified for the privilege of appointment pro hac vice under
the Criminal Justice Act. Moreover, the district court was
considerate of possible harm to Stilley’s reputation as it
cleared the courtroom before holding the hearing concerning
Stilley’s application, and it issued its order revoking his
appointment under seal. Certainly, Stilley may have felt
rebuked by the district court’s decision, but an attorney’s
standing to seek appellate review of a district court order does
not turn on the attorney’s sensitivity to criticism. Rather, we
read Weissman and Talao as requiring that the order at issue
to, at a minimum, clearly and intentionally sanction an attor-
ney before that attorney has suffered sufficient injury to have
standing to appeal in his or her own right.
Prudential considerations support retaining the line we have
consistently drawn between district court orders that clearly
and intentionally sanction attorneys and those that are only
directly or indirectly critical of counsel. See Chesnoff, 62 F.3d
at 1145 (holding that even if the attorneys satisfied Article
UNITED STATES v. ENSIGN 8045
III’s requirement for standing, prudential considerations could
still lead us to reject their assertion of standing). First, where,
as here, the party the attorney represented (or sought to repre-
sent) files an appeal in her own right, there is no need for
counsel to file an appeal on behalf of the client. Second, there
is no objective means of evaluating the extent to which an
order, in addition to granting or denying a particular motion,
also rebukes an attorney. Allowing an attorney to appeal an
order whenever he or she thought an appeal was necessary to
vindicate his or her honor could be a source of mischief and
appears unnecessary for the protection of either the parties’ or
counsel’s rights. Furthermore, if standing to appeal depended
on the umbrage taken by counsel, it would be almost impossi-
ble for a judge to know whether his or her order would give
rise to an appeal. Accordingly, prudential considerations rein-
force our conclusion, which is based on our opinions in
Weissman and Talao, that for an attorney to have suffered a
sufficient injury to provide standing to appeal in his or her
own right, the order in issue must, at a minimum, clearly and
intentionally sanction the attorney.
VI.
For the foregoing reasons we conclude that the district
court’s orders declining to allow Stilley to represent Ensign
pro hac vice did not violate Ensign’s right to counsel under
the Sixth Amendment, and because the orders did not clearly
and intentionally sanction Stilley, he lacks standing to appeal
in his own right. Accordingly, Ensign’s conviction is
AFFIRMED and Stilley’s appeal is DISMISSED.