# Petition for Writ of Certiorari — In re Solerwitz > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0170%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 488 U.S. 1004 ## Text seg qe) | 3TEE | Va SEP 16 1988 IN THE ) SUPREME COURT OF THE UNITHD “SHRI CSPANoL, un. OCTOBER TERM, 1987 IN RE JACK B. SOLERWITZ PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT Nathan Z. Dershowitz Dershowitz & Eiger, P.C. 225 Broadway, Suite 2515 New York, NY 10007 (212) 513-7676 Alan M Dershowitz 232 Brattle Street Cambridge, MA 02138 (617) 495-4617 Victoria B. Eiger Of Counsel Attorneys for Petitioner Jack B. Solerwitz Il. QUESTIONS PRESENTED FOR REVIEW Whether an attorney can be suspended from practice before a federal appeals court for conduct unbecoming a member of the bar where the conduct at issue was his refusal to withdraw his clients’ appeals in the face of tremendous pressure by the court to do so and where three respected experts on legal ethics testified that he was ethically obligated to pursue the appeals and that the appeals and the briefs were not frivolous. Whether an attorney is entitled to procedural safeguards such as a hearing before an impartial tribunal when a Court of Appeals seeks to impose against him serious disciplinary sanctions for alleged misconduct in and directed at the Court of Appeals itself. TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW..........i TABLE OF CONTENTS e*eeoeieeeer+nreeee#sreeees#e#ee#ee#e#ee#ee i i TABLE OF AUTHORI TI ES e*eeeseeer#etreee#s+5eeeee#e#e#e#@# i Vv RULES es 1. an ean 68 666600606066 oe UR OPINION BELOW... cccccccccccccccccccce Vii JURISDICTION OF THE COURT...-.eeeeeeeees viii STATEMENT OF THE CASE...cccccscccccvevevel REASONS FOR GRANTING THE WRIT......++++-23 POINT I THE COURT OF APPEALS' RULING IMPROPERLY MAKES ATTORNEYS SERVE AS GATEKEEPERS FOR THE COURT.....25 POINT II AN ATTORNEY MAY NOT BE SUBJECTED TO SERIOUS DISCIPLINARY SANCTIONS WITHOUT PROCEDURAL SAFEGUARDS INCLUDING THE RIGHT TO HAVE THE ISSUES TRIED BY AN IMPARTIAL TRIBUNAL... ccccccccrccsceseves cde &) «= ©) 209 SP Pe oaeeseeenteereseeer#eee#e#e#e###e#e#*# . ~-41 —* 2 APPENDIX OPINION OF SENIOR JUDGE MARION T. BENNETT (Dec. 20, 1987). ccccccsssccscccvecs A-1 FINDINGS OF FACT OF SENIOR JUDGE MARION T. BENNETT (Dec. 10, LOST daccvescecoesccsrvasee ch@lOG DECISION OF THE COURT OF APPEALS (EN BANC) (June 17, 1988)....-ee- A-163 ORDER DENYING RECONSIDERATION (EN BANC) (July 20, SBS) « on vn ceed scsccseechaeea - iii - TABLE OF AUTHORITIES Bloom v. Illinois, . 6 2 ap. 8. | Re 34,35 Codispoti ve Penperyanae 418 Gee eee 7, ee ee 2&2 ee & 35 Cooke v. United States, 267 U.S. 517 ev.) *“eneee TrrrrTy _. In re Bithoney, 486 F.2d 319 (lst Cafe L973 peace S@Cee e2eeegeeeonoe €6ae es 28 In re Snyder, 472 U.S. 634 (1985).......27 In re Winsberg, 446 F.2d 641 SWE GEEe APTA jpecccccccccccecceccse 29 In ce Gisene,. 333 UB. 2357 (1946) ccccee 35 In re Woolfolk 572 F.2d 192 (39th Cife DUP Rabe ene secescosccesoene Marshall v. Jerrico, Inc., ee es ono ceccuseoeese 37,40 Mayber v. Pennsylvania, ee ee SE EOE ce accesicccceses 35 Offutt v. United States, U.S. ll ‘i. > on “eer eee eevee 35 Sacher v. United States, BES Ucbo & Chea cc cccces cocccccces 34 Taylor v. Hayes, 418 U.S. 488 (1974)....35 es a Tumey v. Ohio, 273 U.S. 510 (1927) Ward v. Village of Monroeville, 409 U.S. ow So are Young v. United States, Be Gites Ee ADOOT Dine 0-00-00 wererr .* i ct va ¢ ad = * a Leet : tt an x 7 > - a SS ; = + : : As : *, j 2 ek cen eee Ot ee) eee > ee ie fo yr eee ans ee ey aoa = 7 rs 7 hb. o>- ‘ senses ie , ; aa. ts: ee Se . :; —— . , a ? “ - 1 — , / we Z me 2 o ‘ t : - : i i : amd as : 7: -_ y — i 'e 4 RULES INVOLVED Rule 46 of the Federal Rules of Appellate Procedure provides in relevant part: (b) Suspension or Disbarment. When it is shown to the court that any member of its bar has been suspended or disbarred from practice in any other court of record, or has been guilty of conduct unbecoming a member of the bar of the court, he will be subject to suspension or disbarment of the court. The member shall be afforded an opportunity to show good cause, within such time as the court shall prescribe, why he should not be suspended or disbarred. Upon his response to the rule to show cause, and after hearing, if requested, or upon expiration of the time prescribed for a response if no responses is made, the court shall enter an appropriate order. (c) Disciplinary Power of the Court Over Attorneys. A court of appeals may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing, if requested, take any appropriate disciplinary action against any attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with these rules or any rule of the court. OPINIONS BELOW On December 10, 1987, Senior Judge Marion T. Bennett, who had been designated to conduct a hearing for the Court of Appeals for the Federal Circuit, issued an opinion and findings of fact which are reproduced in the Appendix at A-l and A-100, respectively. On June 17, 1988, the Court of Appeals for the Federal Circuit (en banc) issued an opinion and order, which are reported at 848 F.2d 1573 and which are reproduced in the Appendix at A-163. On July 20, 1988, the Meae: of Appeals for the Federal Circuit (en banc) issued an order denying reconsideration, which is not yet reported, but which is reproduced in the Appendix at A-202. - vii - DF Ae fea Li Tae Peo Te JURISDICTION OF THE COURT The order of the Court of Appeals was entered on June 17, 1988. The Court has jurisdiction to review the decision of the Court of Appeals pursuant to 28 U.S.C. §1254(1). - viii - STATEMENT OF THE CASE On January 21, 1987, the United States Court of Appeals for the Federal Circuit (en banc) ordered Petitioner Jack B. Solerwitz, Esq: to show cause why he should not be suspended for two years from representing clients before the Court. The order grew out of Solerwitz's representation of a number of former air traffic controllers ("ATCs") who had been fired as a result of the 1981 strike. The crux of the Court's complaint was that Solerwitz had maintained frivolous appeals on behalf of these clients. On August 3, 1981, PATCO, the Professional Air Traffic Controller's Organization, called a strike. The strike was declared illegal and 11,000 ATCs were dismissed. Solerwitz Was septoechda by several individual air traffic controllers who were dissatisfied with the representation they were receiving through PATCO and Solerwitz agreed to represent them. He was thereafter inundated with requests from other ATCs seeking legal representation. Ultimately, Solerwitz and his lawfirm, Solerwitz, Solerwitz & Leeds, undertook representation of over 800 ATCs in proceedings before the Merit Systems Protection Board ("Board"). “Because of massive consolidation of cases by the Board, the cases of individual ATCs received little or no individualized consideration in that forum. Persons who never intended to strike -- indeed persons who were wholly unaware of the strike -- found themselves not only without jobs as a result of the mass firings, but without even the satisfaction of having their individual circumstances considered by the Board. This was extraordinarily frustrating for Solweritz's ATC clients, all of whom had lost their jobs, and many of whom found themselves unemployable, in desperate financial straits and confronted with a myriad of related personal and family problems. Solerwitz's ATC clients continued to hope that they would obtain relief in the Court of Appeals. Accordingly, at his clients’ direction, Solerwitz filed petitions for review of adverse Board decisions in the Court of Appeals on behalf of some 700 ATC clients. The petitions for review filed by Solerwitz were among 4600 requests for review in the Court of Appeals for the Federal Circuit by former ATCs. That Court, apparently, found itself overwhelmed with the addition of so many new cases to its docket. In an attempt to “manage the flood of litigation" (A-4) and to “expedite processing” (Id.), the Court of Appeals consolidated hundreds of ATC cases and, in addition, selected 12 “lead cases" which presented issues common to many of the cases. The lead cases were put ona fast track. By order dated February 24, 1983, all other pending ATC appeals were "suspended," including those filed by Solerwitz. (A-4-5) On May 18, 1984, the Court decided the lead cases. On that day the Court sent notices to counsel in all ATC cases that it had decided the lead cases and that if would send further notice upon final disposition of those cases.! The Court directed that, within 30 days of such notice, counsel would have to file written notice of a wish to continue to prosecute the appeai or the appeal would be lRemarkably, in one of the lead decisions, the Court listed a number of ATC appeals which it had suspended, including one of Solerwitz's, and stated that these appeals would be dismissed -- not affirmed -- unless the Court was notified of an intent to withdraw or further prosecute the case. See Adams v. Department of Transportation, 735 F:i2d 488, 4-. (Fed. Cir. 1984). -4- dismissed. The notice contained a warning about the impropriety of maintaining frivolous appeals. On December 10, 1984, the Court notified counsel in all suspended cases that Supreme Court review in those lead cases in which certiorari was sought had been denied. The Court gave counsel in the suspended cases, including Solerwitz, 30 days to file renewed petitions advising the Court of the remaining issues relied upen which had not been decided in the lead cases. The Court again warned counsel against maintaining frivolous appeals. Failure to file a renewed petition would result in dismissal. In addition, counsel were given 60 days from the filing of the renewed petitions to file briefs and appendices. 2 20n three other occasions -- July 12, July 31 and August 30, 1985 -- the Court, by memorandum, requested all ATC counsel to (footnote continued) ~ a oro pen mcarpnnenrn —_ The Court's short deadlines and directives created substantial difficulties for Solerwitz's small law firm, which were compounded by a precipitous leavetaking by one of the firm's associates because of a medical emergency. The firm contacted or attempted to contact all of its ATC clients to ascertain whether the client wished to proceed. Because most of the clients had come to Solerwitz for individual representation, not suprprisingly, most expressed their firm desire to proceed with their appeals.3 (footnote continued from previous page) review the propriety of maintaining frivolous appeals. 3Throughout, the firm had kept in close contact with its clients, many of whom, as the firm's lawyers well knew, were enduring personal and family disintegration as a result of the firings. Solerwitz proceeded with the appeals of those relatively few clients who could not be reached in the view that it would be improper to waive the clients’ rights without discussing the situation with them. Pursuant to the Court's order of December 10, 1984, new petitions for review were submitted on January 9, 1985, before the Court's January 10 deadline for doing so.4 - Throughout the proceedings, the setereits firm attempted to comply fully with the Court's orders. First, the firm's lawyers carefully reviewed the opinions in the lead cases. ~~ opinions decided many of the major issues involved in the ATC cases, they also revealed that certain important questions had not been decided (e.g., the propriety of consolidation of cases over objection, see Moylan v. Department of Transportation, FAA, 735 F.2d 524 (Fed. Cir. 1984). 4tmhe Clerk's office inexplicably refused to accept the petitions for filing on the ground that they had been filed individually and not under the consolidated case name and docket number used below. Lawyers worked all night to redo the petitions, and filed them, timely, on January 10. ~~ ee nen ean ee NE ES TEE EEE IE ECT IOP IIE NR ter RE RR RR eee ee — Moreover, the decisions in the lead cases and the principles announced in those decisions suggested certain issues and factual distinctions which might distinguish individual cases from the lead cases. For example, in Brown v. Department of Transportation, FAA, 735 F.2d 543 (Fed. Cir. 1984), the Court had held that the penalty imposed -- removal -- was inappropriately harsh given the individual ATC's long service and other factors in his case. In reliance on Brown, the firm reviewed all of its clients' files, and identified those where particularly sympathetic fact patterns existed, and advanced those specific facts in support of the argument that the penalty of removal was inappropriate in that case. Similarly, in Schapansky v. Department of Transportation, FAA, 735 F.2d 477, 482 (Fed. Cir. 1984), the Court had held that absence POAT APU ARIANOAL CS OCR I" without authorization or explanation during the strike constituted a prima facie showing of strike participation, but also noted that minimal countering evidence could overcome that showing. Schapansky and other lead cases suggested the kinds of facts which could rebut a prima facie case of strike participation. For example, the fact that an ATC was on annual leave, Campbell v. Department of Transportation, FAA, 735 F.2d 497 (Fed. Cir. 1984), Letenyer v. Department of Transportation, FAA, 735 F.2d 528 (Fed. Cir. 1984), or had reported sick to his supervisor prior to the strike, DiMasso v. Department of Transportation, FAA, 735 F.2d 526 (Fed. Cir. 1984), or had been forced by threats to participate, Martel v. Department of Transportation, FAA, 735 F.2d 504 (Fed. Cir. 1984), could demonstrate that the ATC was not acting in concert. In reliance on these lead cases the firm also reviewed all of its clients' cases and identified those in which it was appropriate to argue that the evidence countered the prima facie showing of acting in concert. These specific facts were included in the briefs in support of the claim that reversal was appropriate. Pursuant to the Court's order of December 10, the briefs for all 600-plus clients were due on or before April l, 1985. The firm geared up for the work to be done. A new attorney was hired to aid in revising the briefs and 20 legal assistants were hired. Solerwitz's wife and law partner, Kathleen Solerwitz, who had been on maternity leave, returned to work full-time. Everyone in the firm was pressed into service. The administrative difficulties were considerable, but the firm took appropriate, lawyerly steps to deal with the problems. For example, a motion was made for leave to dispense with the filing of appendices or, alternatively, to file them within 20 days of the filing of respondents' briefs.° Preparation of the briefs for timely submission continued. The briefs which were filed were, for the most part, divided into three sections. The first presented a broad, Constitutional challenge to the prior proceedings. The second raised specific legal claims and, where appropriate, sought to distinguish the lead cases. The third section identified and described the individual SAssembling appendices was virtually impossible not only because of the number of cases involved but because the government would not stipulate to contents, or supply necessary documents in its possession. petitioner and argued why his or her case should be treated differently from the lead cases. In each case, the United States Court of Appeals for the Federal Circuit affirmed the decision below, without adressing any of the individual distinguishing factors which were raised. In addition, the Court of Appeals found the majority of ATC appeals filed by Solerwitz to be "frivolous," and imposed monetary sanctions under Fed. R. App. P. 38. Sanctions totaling $78,300 were imposed against him, as well as an additional $11,800 in costs and attorneys fees. All of these sums were paid by Solerwitz. 6The Rule provides: If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee. PTY TE REIT FDL) Dene 18 rm EE The Court of Appeals, however, apparently felt that it had been wronged by Solerwitz's refusal to bow to its less than subtle demands that he withdraw or permit the dismissal of his clients’ appeals. It therefore instituted a separate proceeding against him by order to show cause. It recited that, on five occasions, the Court had warned Solerwitz about the impropriety of mantaining frivolous appeals. And it charged that, notwiths*anding the repeated warnings of the Court he had maintained and/or filed 142 separate frivolous appeals in air traffic controller cases. / 71£ further charged that in the briefs filed in connection with those appeals he: Gisregarded Federal Rules of Appellate Procedure and this court's rules, failed to file appendices, ~ provided no citations to the record, ignored authorities cited by the government, advanced numerous arguments on issues not on appeal, and repeatedly raised contentions not raised before the Merit Systems Protection Board. Mr. Solerwitz's (footnote continued) ti ii ie The order concluded with the allegation that Solerwitz's “conduct in filing and maintaining frivolous appeals .. . has wasted the time and limited resources of this Court, has denied availability of the court's resources to deserving litigants, and has constituted flagrant and totally inexcusable abuse of the judicial process." Solerwitz moved to disqualify the Court from ruling on the order to show cause, submitted a written answer to the show cause order, and requested an evidentiary hearing. _The Court overruled his procedural objections and designated Senior Judge Marion T. Bennett to hold the hearing. (footnote continued from previous page) * briefs were devoid of any showing on which the decision appealed from could even possibly be reversed, devoid of any basis on which the precedents of this court could be distinguished in law or fact, and devoid of any effort to make such Gistinctions. aaa At the hearing, several of Solerwitz's ATC clients testified about their strong desire that Solerwitz file, maintain, and — pursue their appeals and their instructions to him that he do so. Three experts in the field of legal ethics also testified on Solerwitz's behalf. They were Professor Monroe H. Freedman of Hofstra University Law School; Professor William E. Hellerstein, of Brooklyn Law School; and Harvey A. Silverglate, a Boston attorney who co-teaches a course in professional responsibility at Harvard Law School and who chairs the standing committee on legal ethics of the Massachusetts Association of Criminal Defense Lawyers. Each expert had reviewed briefs filed by Solerwitz in ATC appeals which the Court of Appeals had determined to be frivolous and in which that Court had imposed monetary sanctions. Each of the experts testified that the appeals and the briefs which Solerwitz had filed were not frivolous, and that Solerwitz was not only justified in proceeding with the appeals, but was ethically obligated to do so. Freedman testified that it was not even “a close case. I would expect any expert in the field to agree with me in that judgment." Hellerstein testified that Solerwitz was obligated to proceed and that the Court's warnings about frivolous appeals did not change that bottom line. Silverglate testified that the legal arguments in the Solerwitz briefs were not frivolous. Had Solerwitz consulted him about whether it would be proper to withdraw the appeals on the ground that they were frivolous, Silverglate testified, he would have advised Solerwitz that he had no discretion in the matter. Given his clients’ insistence on pursuing their appeals, and the non-frivolous nature of the arguments, Solerwitz was obligated to pursue the appeals. Following the hearing, Judge Bennett made findings of fact and concluded that Solerwitz had engaged in conduct unbecoming a member of the bar. He reasoned that attorneys not only have obligations to their clients, but also an obligation to the Court, and rejected the experts’ testimony as not taking the latter ‘obligations into account. (A-50) The views of the expert witnesses, while based in part on established tenets of the legal profession, do not fully outline the duties of a lawyer nor do they provide a complete picture of the specific issues before the court in this proceeding. An attorney's obligations to provide zealous advocacy on behalf of his client are not absolute and uncompromising, but must be viewed in light of his additional obligations as an officer of the: court to promote the administration of justice and to comply with the court's rules, notices, and orders. Additionally, as with his obligations to his client, the attorney's obligations to the court are ongoing at every stage of the litigation and the attorney must continually reevaluate the positions advanced in light of both the development of the litigation itself and of the relevant case law affecting the litigation. Judge Bennett recommended that Solerwitz be suspended from practice for two years. However, in light of the financial sanctions already imposed on Solerwitz and the fact that this is the first instance in which sanctions would be imposed under both Rule 38 and Rule 46 for conduct arising from the same appeals, Judge Bennett recommended that enforcement of the suspension be held in abeyance for two years pending Solerwitz's demonstration of rehabilitation. (A-85-99) Solerwitz filed exceptions to Judge Bennett's findings and "appealed" to the en banc Court the determination that Solerwitz had engaged in conduct unbecoming a member of comened the bar. He argued that Judge Bennett had not found any of the briefs or appeals frivolous. Rather, Judge Bennett had improperly deferred to the Court's prior findings of frivolousness in connection with the Court's prior imposition of monetary sanctions, thereby making the hearing on the order to show cause meaningless. He urged, in reliance on the experts’ testimony, that the briefs and the appeals were not frivolous. He noted that there was a stark difference of opinion between the experts and the judges of the Federal Circuit about what constitutes a frivolous appeal and about the nature of an attorney's obligations to his client. In light of this difference of opinion and in light of the fact that there was no finding of bad faith on Solerwitz's part, he urged that ee fate a WE RN OE A ee the serious sanction of suspension was inappropriate. eA | , em The Court of Appeals for the Federal Circuit, en banc, adopted Judge Bennett's determination that Solerwitz engaged in conduct unbecoming a member of the bar. We have reviewed the testimony of the three experts and their conclusions regarding the propriety of Mr. Solerwitz's conduct. We agree with Judge Bennett's conclusion, however, that despite the opinion of those experts, Mr. Solerwitz engaged in conduct unbecoming a member of the bar of this court in his handling of the . air traffic controller appeals. | Contrary, to Mr. Solerwitz's contention, it is this court and not Mr. Solerwitz's experts that must determine whether Mr. Solerwitz's conduct was improper. As a member of the bar of this court, Mr. Solerwitz, in Judge Bennett's words, was required to “promote the administration of justice and to comply with the court's rules, notices and orders." On five separate occasions, the court had warned all counsel in the air traffic controller cases against further pursuit of frivolous appeals in cases that could not be meaningfully distinguished from the lead cases. Despite these warnings, Mr. Solerwitz continued to press more than 100 appeals that were frivolous. Mr. Solerwitz cannot — escape responsibility for his actions by the assertions that his clients insisted that he pursue their appeals and that he believed he could draw adequate factual distinctions between his cases and the lead cases. The expert witnesses’ conclusions were stated in general terms and did not address the specific grounds upon which, in previously imposing the sanctions upon Mr. Solerwitz, this court had concluded that Mr. Solerwitz's appeals were frivolous. It bears repeating that Mr. Solerwitz filed 107 briefs that were virtually identical and that merely repeated the same arguments that this court already had rejected in the lead cases. The purported short factual distinctions he sought to draw between the situations of the former controllers in the 131 cases and those in the lead cases were wholly unconvincing and did not provide any meaningful basis for distinguishing the lead cases. (A-186-88) The Court, however, “modified" -- really, increased -- the sanction. It fixed the suspension period at one year, but rejected Judge Bennett's recommendation that the suspension be held in abeyance. (A-199- 200) The en banc Court stayed the ‘ commencement of the sanctions only for 90 days, so that Petitioner could seek review in this Court. (A-200) Solerwitz requested reconsideration of the sanction imposed by the en banc Court. He argued that the sanction imposed by the Court was more severe than the sanction which Judge Bennett had recommended, and that he had never had an opportunity to address the Court on the propriety of a harsher sanction. The en banc court ruled that the one-year suspension was a less severe sanction than a two-year suspension which would have been suspended. (A-204) The request for reconsideration was denied. (A-206) PET WGR Ect Ponta mieretinemantien meen atin knead REASONS FOR GRANTING THE WRIT This case presents substantive and procedural questions of extraordinary importance not only to all lawyers who practice before the federal courts, but to the court system itself. At its most abstract, the substantive question involves the delicate interplay between a lawyer's obligations to his client and his competing "obligations" to a court. On -a more concrete and perhaps more interesting level, the specific question is whether a court can shift to attorneys the responsibility to serve as “gatekeepers” for the Court, insisting that counsel not file (or that counsel withdraw) appeals in cases where, for one reason or another, the Court of Appeals does not want to decide the case, or believes that the outcome is a foregone conclusion. In addition, the case presents important questions concerning procedural safeguards to which an attorney is entitled when a federal Court of Appeals seeks to impose serious disciplinary sanctions for alleged misconduct directed at the Court of Appeals itself. Among the procedural questions presented are whether, in such circumstances, th charges must be tried by an impartial tribunal or whether they can be adjudicated by the very court which has allegedly been wronged by the attorney's acts. POINT I THE -COURT OF APPEALS' RULING IMPROPERLY MAKES ATTORNEYS SERVE AS GATEKEEPERS FOR THE COURT Petitioner and the Court of Appeals differ sharply about the respective roles of federal appeals courts and the attorneys who practice before those courts in the administration of justice. Petitioner maintains that it is the responsibility of an intermediate appellate court in the federal system to decide all appeals within its jurisdiction which litigants bring to it. A Court of Appeals may affirm -- must affirm -- a judgment if, in its judgment, the issues raised on appeal are not meritorious or the case cannot be “meaningfully distinguished" from cases recently decided by the Court. It may do so by summary affirmance or other summary procedure, if the Court deems that appropriate. But, Petitioner submits, the Court may not properly do what the Court of Appeals for the Federal Circuit has done. It may not insist that counsel not prosecute appeals in cases where, as here, although affirmance is likely or indeed, inevitable, counsel believes that certain precedents were wrongly decided, or that the appellant is entitled to relief under the decided cases, or that the particular case is distinguishable from previously decided cases, or even merely in order to preserve the right to seek review in the Supreme Court. The fact that a Court feels "overwhelmed" with appeals or that chances are high that the Court will find the appeal to be wholly without merit does not change the result. History and the lore of the profession are replete with examples of courageous advocates insistent on representing their clients and i Ten PLC ete HS presenting (and preserving) their claims even in the face of very strong expressions by a Court that it did not want to hear a particular argument, or thought the argument meritless. It is, in fact, such advocacy which results in changes in "well-settled" law. But even if the law did not change -- and it clearly does -- pursuing an appeal is appropriate if, for no other reason, than to preserve the issue for further review. In the ATC cases, that was particularly appropriate because this Court had never ruled on any of the issues presented. Indeed, certiorari had not even been sought in several of the lead cases. Petitioner does not assert any right to file or maintain frivolous appeals, but he does maintain -- based on case law, "the lore of the profession," In re Snyder, 472 U.S. 634, 645 (1985), and the testimony of thoughtful, respected nein rs oe on legal ethics -- that the phrase "frivolous appeals" describes a very narrow class of cases,® into which the appeals at issue did not fall. The ATC appeals which he filed were not fallacious on their face, nor were they sham appeals. Solerwitz surely was not filing them with ulterior motives and/or with no intention of prosecuting them fully. This case is thus far different from In re Bithoney, 486 F.2d 319 (lst Cir. 1973), the only case of which counsel is aware in which an attorney was suspended from practice for taking frivolous appeals. Bithoney, an attorney who had been convicted on criminal charges, was found to have engaged in conduct unbecoming a member of 8according to Professor Freedman, a frivolous pleading or argument is one that is fallacious on its face, for example, one that is contrary to that which would be judicially noticed; a sham pleading is plausible on its face, but the attorney asserting it knows or should know that the facts supporting do not exist. — en the bar based on his filing of a number of petitions for review in immigration cases (the effect of which was to cause an automatic stay of deportation) and his failure to diligently pursue the appeals, in breach of his . obligations to his clients. Even under these circumstances, a suspension of less than six months time was imposed. In fact, nearly all of the cases reported under Fed. R. App. P. 46 involve counsel's failure to file briefs or otherwise discharge his obligations to his client. See, e.g., In re Woolfolk, 572 F.2d 192 (9th Cir. 1977); In re Winsberg, 446 F.2d 641 (9th Cir. 1971). In Solerwitz's case, his offense was his attempt to fulfill his professional obligations to his clients, in the teeth of the Court's pressure to abandon their causes. This he refused to do. The Court of Appeals for the Federal Circuit has taken the unacceptable position in this case that an appeal is frivolous and that an attorney may be sanctioned for prosecuting it if it presents an issue identical or similar to one presented in a case recently decided by the Court or one, like the appellant's constitutional challenges to the Board's proceedings, which the Court simply is not interested in hearing. Moreover, according to the Court, an appeal which is not frivolous even under the Federal Circuit's broad definition when filed becomes frivolous -- and must be withdrawn under penalty of substantial sanctions -- when, while the appeal is pending, the Court decides an issue similar or identical to one it presents. In fact, under these circumstances, the Court's decision means that an attorney may be compelled to withdraw a pending appeal, under penalty of fine or suspension or both, and may not attempt to distinguish it. Unless the attorney can successfully distinguish his case factually or legally, such an appeal is frivolous and this notwithstanding the fact that further review in the Supreme Court is dependent upon pursuing the appeal through the appeals court. Respected experts in the field of ethics agree that the definition of a frivolous appeal adopted by the Federai Circuit has never been the test of a frivolous lawsuit. All of the experts also agreed that an attorney is not only permitted -- but ethically obligated -- to prosecute an appeal for a client who wishes to proceed under the circumstances which existed here. Thus, this case not only presents the important question whether prosecuting such cases can be deemed conduct unbecoming a member of the bar. It also poses the question whether, even if it can, suspension from practice is an appropriate sanction where reasonable persons, knowledgeable about the standards of the profession, disagree about the propriety of the conduct at issue, and where, as here, there is no finding of bad faith on the part of the attorney. POINT II AN ATTORNEY MAY NOT BE SUBJECTED TO SERIOUS DISCIPLINARY SANCTIONS WITHOUT PROCEDURAL SAFEGUARDS INCLUDING THE RIGHT TO HAVE THE ISSUES TRIED BY AN IMPARTIAL TRIBUNAL The en banc court's order to show cause in this case was plainly an expression of the Court's interest in vindicating the authority of the Court, and punishing Solerwitz for what the Court perceived to be serious misconduct on his part directed against the judicial branch, and, ultimately, against the public. The serious sanction imposed -- a year's suspension from practice -- was also designed both to vindicate the Court's authority and to punish Solerwitz for his "misdeeds." Thus, this disciplinary proceeding had much in common with a criminal contempt proceeding. See Young v. United States, 107 S.Ct. 2124, 2134 (1987) ("In punishing contempt the judiciary is sanctioning conduct a. Se. oe that violates specific duties imposed by the Court itself, arising directly from the parties participation in judicial proceedings.") And, as such, it is as vulnerable to misuse as are the courts' contempt powers. This Court has recognized that: Contemptuous conduct, though a public wrong, often strikes at the most vulnerable and human qualities of a judge's temperament. Even when the contempt is not a direct insult to the court or the judge, it frequently represents a rejection of judicial authority, or an interference with the judicial process .... Bloom v. Illinois, 391 U.S. 194, 202 (1968). See also Cooke v. United States, 267 U.S. 517 (1925); Sacher v. United States, 343 U.S. l (1952). In recognition of this and of the abuses to which the contempt power is subject, this Court has placed significant limitations on this historically based power, recognizing for example, an accused contemnor's right to a jury trial for "serious" contempts, Bloom v. Illinois, supra; Codispoti v. Pennsylvania, 418 U.S. 506 (1974); and the accused contemnor's right to an unbiased tribunal. See, e.g., Taylor v. Hayes, 418 U.S. 488 (1974); Mayberry v. Pennsylvania, 400 U.S. 455 (1971); Offutt v. United States, 348 U.S. ll (1954); In re Oliver, 333 U.S. 257 (1948). As Judge Scalia recently recognized, judicial involvement in contempt proceedings (in other than a strictly adjudicatory role) necessarily raises troubling questions concerning the separation oe anette. There is . something intrinsically problematic in: permitting a judge to promulgate a rule of behavior, prosecute its violation, and adjudicate whether the violation took place. Young v. United States, 107 S.Ct. 2124, 2146 (1987) (Scalia J., concurring). The majority of the Court in Young looked precisely to the procedural safeguards “carefully instituted over time" to protect against “the most tyrannical licentiousness" which Justice Scalia perceived. Id. at 2133 & n.9. But in this case, the most basic procedural safeguards were absent. In Solerwitz's case, the Federal Circuit promulgated rules of behavior, prosecuted their violation, and adjudicated whether the violation took place. No jury or prosecutor with independent ethical cbhligations mediated; no appeal even lies. Adjudication before a neutral and unbiased tribunal stands as one of the most fundamental of due process rights. As this Court has observed: The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudication proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivation and the promotion of participation and dialogue by affected individuals in the decisionmaking process. The neutrality requirement helps to guarantee that life, liberty and property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. At the same time, it preserves both the appearance and reality of fairness, “generating the feeling, so important to a popular government, that justice has been done," by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him. The requirement of neutrality has been jealously guarded by this Court. Marshall v. Jerrico, Inc., 446 U.S. 238, 243 (1980) (citations omitted). Petitioner, from the start, challenged the propriety of having the Court which perceived itself to have been wronged sit in judgment of his conduct, but the Court rejected his challenge to the procedure. The impartial arbiter designated to hear evidence, and to make findings of fact anda recommendation for actiuwn, was himself a senior judge of the very Court whose orders were allegedly repeatedly disobeyed by Solerwitz. More important, Judge Bennett viewed himself to be bound by the Court of Appeals' prior findings of frivolousness in connection with its imposition of Rule 38 sanctions against Solerwitz, findings which were made in a non-adversary, non-contested setting. In fact, to the extent Judge Bennett attempted to exercise independent judgment by recommending that the suspension from practice be stayed and that Solerwitz be placed on probation pending a demonstration of rehabilitation, his judgment was “overruled" by the en banc court which, without having heard any evidence or argument on the question, ordered that the suspension not be suspended. This was a particularly egregious tramplinc of rudimentary procedural safeguards since Solerwitz never even had an opportunity to address the en banc court on the propriety or impropriety of any sanction more severe than the one recommended by Judge Bennett. Under the procedures set down by the Court, Solerwitz had an opportunity only to bring "exceptions" to Judge Bennett's determination to the en banc court. The en banc court avoided confronting the procedural irregularity by taking the absurd position that Solerwitz could not complain because a one year suspension is a less severe sanction than a suspended two year suspension from practice. This bizarre reasoning underscores the fact that the Court was much too personally involved in the dispute to be able to exercise unbiased judgment. Petitioner was deprived of his fundamental right to an adjudication by a tribunal free of any conflict of interest. Cf. Ward v. Village of Monroeville, 409 U.S. 57 (1972); Tumey v. Ohio, 273 U.S. 510 (1927). In this case, the United States Court of Appeals for the Federal Circuit was not a conflict-free tribunal, but the party most directly and intimately involved as the "victim" of the conduct at issue. Moreover, because the Court involved is a federal court of appeals, the statutes provide no appeal as of right. Unless ths Court grants certiorari, that Court's judgment will be final. Cf. Marshall v. Jerrico, Inc., supra, 446 U.S. at 247 & n.9. This Court should therefore grant the writ of certiorari to review the judgment of the Court of Appeals and to set guidelines for appropriate procedural safeguards in disciplinary procedures undertaken by federal Courts of Appeals pursuant to Fed. R. App. P. 46. ——— |, a CONCLUSION For the reasons stated, the writ of certiorari should be granted. Respect fully submitted, Nathan Z. Dershowitz Dershowitz & Eiger, P.C. 225 Broadway, Suite 2515 New York, NY 10007 (212) 513-7676 Alan M. Dershowitz 232 Brattle Street Cambridge, MA 02138 (617) 495-4617 Victoria B. Eiger Of Counsel Dated: September 15, 1988 a a ee ee oe ot a, a ee ee to distinguish the lead case precedents, and abused the judicial process further by delaying availability of the court's limited resources to deserving litigants and wasting the time of the court. He was charged under Fed. R. App. P. 46(b) with conduct "unbecoming a member of the bar of the court."© SRule 46, entitled "Attorneys," because effective July 1, 1968, with the approval of the Supreme Court and Congress. Subsection (b) reads as follows: (b) Suspension or Disbarment. When it is shown to the court that any member of its bar has been suspended or disbarred from practice in any other court of record, or has been guilty of conduct unbecoming a member of the bar of the court, the member will be subject to suspension or disbarment by the court. The member shall be afforded an opportunity to show good cause, within such time as the court shall prescribe, why the member should not be suspended or disbarred. Upon the member's response to the rule to show cause, and after hearing, if requested, or upon expiration of the time prescribed for a response if no response is made, the court shall enter an appropriate order. A-19 E F it ’ 4 $ WF spn . ~ rs fs 2 = - : . ; 2. s : & ? - @ . , - . a 2 ie f - a. 7 wy , - ‘ q * ‘ . hag hoe 5 i * (fon >e : ? ‘ "44 ve _ > 5g oe Ww - -_ +> = ae is Bae ee be: P= fins i or i] LF 6 Fis ~~ : s « bd aS ; = 4 I ~~ $75 mS . rey oy Oe Gh 7 ont ea Sly = + se a9 33 ey “ eee - ~~? , 7 et3isteaaz pe. oP * ; = +44 “s Fr we cs oe ie os damages were imposed by the court in each case. Additionally, three witnesses, who were offered as experts on professional conduct and legal ethics, testified. No evidence offered was excluded. The four fact witnesses called, Mrs. Solerwitz and the three former ATCs, all testified that Mr. Solerwitz had been employed because it was believed and agreed that he would pursue the ATC appeals with vigor, and that other counsel would have been employed had he not agreed to do so. Furthermore, it was uniformly asserted that it was the desire of his ATC clients to file and to continue to maintain their appeals through to a decision on the merits, both to preserve the right to seek certiorari to the Supreme Court and to keep the case "alive" in hopes of Congress A-22 enacting legislation which would provide an alternative, political solution to their desired judicial remedy. Evidence was presented that the standard attorney fee arrangement between Mr. Solerwitz and each of his ATC clients was for payment of $750 for legal services covering administrative procedures in the regional MSPB offices leading to an initial decision. An additional non-refundable fee of $2,500 was charged to cover all subsequent appeals, whether to the full board, to this court, or through to the Supreme Court.’ An offer of 7Thus, had the full fees been collected for each of the 736 appeals to this court, Mr. Solerwitz would have received $2,392,000.00. However, two of the three ATC witnesses testified that their attorney fees had been waived in whole or in part because of their financial circumstances. Mrs. Solerwitz testified that fees were waived for other clients as well and there was some evidence that some of the Solerwitz clients’ provided services to the firm in lieu of-payment of fees. The affidavit of Mr. Solerwitz stated that acceptance of the air controller cases (footnote continued) A-23 proof was made that, if called, 14 other ATC Clients of Mr. Solerwitz who had been listed as potential witnesses would have testified to the same effect. The testimony of each of the witnesses, especially those offered as experts on professional conduct and legal ethics, will be discussed in greater detail as required in the course of the following opinion. Following the close of the evidentiary hearing, Mr. Solerwitz ard his counsel were allowed to file requested findings cf fact and conclusions of law along with any supporting argument counsel might wish to advance. Counsel was instructed to include all issues and objections that might later be advanced to the full court, and counsel agreed to do so. On September 10, 1987, the proposed findings (footnote continued from previous page) was a “financial disaster" for his firm, but no evidence was offered to indicate how many of the appealing air traffic controllers were not charged, did not pay, or provided services in lieu of payment. of fact and conclusions of law were filed. However, the submitted conclusions of law were proposed solely on the testimony of the expert witnesses without citation to authority. OPINION The court's order to show cause cited subsection (b) of Fed. R. App. P. 46 (Rule 46) as the basis for determining whether Mr. Solerwitz's conduct had been "unbecoming a member of the bar of the court." The hearing and associated proceedings in this matter were designed to be in accordance with Rule 46 and any subsequent action recommended or taken by this court as a result of the proceedings is a matter of discipline concerning Mr. Solerwitz as an attorney and member of the bar of this federal court.8 Nearly all of the prior 8In contrast to the disciplinary measures imposed against an attorney under the authority of Rule 46, federal appellate courts have imposed sanctions on parties and/or counsel under 28 U.S.C. $1912, which gives an (footnote continued) A-25 i ie WISN whi Ag BAG BAai Orig fe sh mS seOne ett) Fo yaoms 3 #a2- out a0. gle. - WF a Ne k3yodttve- os nol Festi Susdatw | a | MOlnTso Se ey oir woe of 7 oO a AS x . . t 7 ae os ee ee tl ee +. Far * % = ois a «ee PHS B42 30 B. 9 oN tis ba BANS Abo BEG theeoeIG Bemer 4 | 16 alum dis sRebh soos at wee ee ‘ itu o = oy ae a ~ ew. So Ee Z sah § Fe i re + Wn oh —% ; . : i? ijt see . & s@ a: ° 4 ISsCher a oe g vee sy 7 aoe | . at VLA eds p OH 4 ra i ees mS fe «~ oat * Sep ieat: aReDo sf «iat WARE aS CONSE Tp Line 2 wEx: ‘wee a Oakes CIE. ko byegs fay F.2d 602, 603-04 (lst Cir. 1970)). The First Circuit held that the total lack of merit and lack of diligence in pursuing the claims, especially in the face of a specific warning by the court, constituted behavior unbecoming a member of the bar under Rule 46 and, under the authority of that rule, the court suspended the respondent as a member of the bar of tha couxt for 4 months and fined him $500. In Bithoney, Rule 46 was held not to be sO vague as to deny due process when used as a basis for attorney discipline. The court noted that the term “conduct unbecoming a member of the bar” must not be evaluated in the abstract, but must be placed in the context of being a part of a rule directed to the discrete professional group (attorneys) with a complex code of behavior that has been developed over a consideration length of time. A-40 486 F.2d at 324. Referring to the Model Code as an illustration of the "lore of the profession," the court further stressed that there is "at least a core area of clearly prohibited conduct" which the respondent was obligated to avoid as conduct unbecoming a ilies of the bar.19 Id. The court found that respondent ran afoul of both the general proscriptions of Rule 46 and of the court's specific warnings against further abuse of the judicial process and held that the vagueness of which he complained was not present. Id.; see also United States v. Hearst, 638 F.2d 1190, 1197 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981). 10as noted, the Supreme Court in Snyder cited and adopted the First Circuit's interpretation of the prohibition in Rule 46 against "conduct unbecoming a member of the bar" as viewed in light of “case law, applicable court rules, and ‘the lore of the profession,' as embodied in codes of professional conduct." 472 U.S. at 645 (footnote omitted). A-41 Just as the respondent in Bithoney had been warned by the First Circuit against filing frivolous appeals, Mr. Solerwitz received several notices from this court warning against abuse of the judicial process through the filing of frivolous appeals. As a member of state and federal bars, Mr. Solerwitz is charged with knowledge of both the various professional codes and, specifically, with Federal Rules of Appellate Procedure 38 and 46. Additionally, he was sanctioned on numerous separate occasions, which should have been more than adequate to place him on notice that his overall conduct was being viewed by this court as inappropriate professional conduct and a likely subject for discipline. Therefore, Mr. Solerwitz cannot properly complain of having A-42 to guess as to the course of conduct which could have led to further sanctions or discipline against him. | Rule 46 provides that a member of the ba: of the court "shall be afforded an opportunity to show good cause . . . why the member shoul directed attention to the impropriety of maintaining frivolous appeals, citing published cases of the court on that issue. 5. On December 10, 1984, in conformity with the May 18, 1984 notice, counsel and petitioners in all ATC cases were notified that the Supreme Court had denied certiorari in all lead cases in which it had been sought and that mandates had been issued in those cases from this court to the MSPB. This notice also advised that the suspension entered on February 24, 1983, would remain in effect to and including January 10, 1985. Before the latter date, pending petitions for review were required to be withdrawn or new ones filed. Absent such action the petitions would be dismissed. A renewed petition. was required to contain “a statement of the issues relied on and not decided in any of the ‘Lead Cases.'" The notice also indicated where the lead cases were published and again emphasized the impropriety of frivolous appeals, repeating the precedents cited in the May 18, 1984 notice. 6. Subsequent to receiving the notice of December 10, 1984, Mr. Solerwitz continued to prosecute his 11 original appeals pending on May 18, 1984. One of those appeals was decided on June 12, 1985, and the other 10 on August 14, 1985. Sanctions of $500, excluding costs, were levied on Mr. Solerwitz for each appeal. In addition to these appeals he also filed 138 new ATC petitions for review. On July 12, July 31, and August 30, 1985 the court by memorandum requested all ATC counsel to review the propriety of maintaining appeals in light of the need to avoid frivolity ‘and the accompanying abuse of the judicial A-104 process. With each of the five notices in 1984-85 the court furnished counsel with a set of published lead cases or citations thereto. 7. The court sanctioned Mr. Solerwitz in 145 of the 154 ATC appeals he filed. This court informed him of the nature of his misconduct each time he was sanctioned. Listed below are general examples of his misconduct for which money sanctions were levied and paid. a. Solerwitz filed and maintained petitions that this court deemed were clearly frivolous. See, e.g., Amodeo v. Department of Transportation, FAA, 788 F.2d 1549, 1550-51 (Fed. Cir. 1986); Stefansky v. Department of Transportation, FAA, Appeal No. 85- 1684A (August 1, 1986) (unpublished); Adsit v. Department of Transportation, FAA, Appeal No. 85-1639 (July 16, A-105 ad nate 1988) (unpublished); Boyd v. Department of Transportation, FAA, Appeal No. 85-1587 (May 28, 1986) (unpublished); Cecil v. Department of Transportation, FAA, 767 F.2d 892 (Fed. Cir. 1985). A Mr. Solerwitz was deemed by this court to have abused the judicial process. See, e.g., Ernst v. Department of Transportation, FAA, Appeal No. 85- 1847 (September 9, 1986) (unpublished); King v. Department of Transportation, FAA, Appeal No. 85- 1710 (August 1, 1986) (unpublished); Sweeney v. Department of Transportation, FAA, Appeal No. 85- 1671 (July 16, 1986) (unpublished): Wickard v. Department of Transportation, FAA, Appeal No. 85- 1592 (May 28, 1986) (unpublished). A-106 - Mr. Solerwitz was deemed by this court to have filed briefs that were devoid of any showing on which the decision appealed from could even possibly br reversed. See, e.g., McNeice v. Department of Transportation, FAA, Appeal No. 85-1669 (September 26, 1986) (unpublished); Knight v. Department of Transportation, FAA, Appeal No. 85-1684 (July 16, 1986) (unpublished); Panettieri v. Department of Transportation, FAA, Appeal No. 85-1591 (May 28, 1986) (unpublished). Mr. Solerwitz was deemed by this court to have filed briefs that were devoid of any basis upon which the earlier decisions of this court could be distinguished in law or fact. See, e.g-, Des Vignes v. Department of A-107 Transportation, FAA, 791 F.2d 142, 146 (Fed. Cir.), cert. denied, 107 S.Ct. 185 (1986); Beninati v. Department of Transportation, FAA, Appeal No. 85- 1991 (September 9, 1986) (unpublished); McCurry v. Department of Transportation, FAA, Appeal No. 85-1707 (August 1, 1986) (unpublished); Olivard v. Department of Transportation, FAA, Appeal No. 85-1641 (July 16, 1986) (unpublished); Amengual v. Department of Transportation, FAA, Appeal No. 85- 1589 (May 28, 1986) (unpublished). Mr. Solerwitz was deemed by this court to have violated this court's rules, particularly Rules 12 and 13(a)}), pertaining to appendices and citations to the record in briefs, respectively. See, e.g., Des Vignes v. Department of A-108 hada = iy bed ves iad ob al Pe ae Lita a= ie es shone J > Bee: 7 Pin ; : : p a 2 by Bee Ole. ot Eerie gs FREBUAE VOTE hes Piss ee 2 i Ao 4a Rees We ints ary i SS ne ee eee JHE IS al Veies. Liet ae A OS Fe 2 Oa ea a a a bee be too . Pim 7 et ee 7 Lia 4 = a a¥ Ifa = a | ; Pn - . 3 ” ws ‘ iy a at. 2. =* i. ‘ & a | 2 x? G - KR ah = * ¢ —_ 4 ee ee eee ee ee ee (ot SAP LOSE APT EAE | aad eating to nes aba ie a Transportation, FAA, 791 F.2d 142, 146 (ped... Ciz.},: certs denied, 107 s.Ct. 185 (1986); Imundo v. Department of Transportation, FAA, Appeal No. 85- 1735 (September 9, 1986) (unpublished); Polansky v. Department of Transportation, FAA, Appeal No. 85-1713 (August 1, 1986) (unpublished); Stephens v. Department of Transportation, FAA, Appeal No. 85-1668 (July 16, 1986) (unpublished); Allen v. Department of Transportation, FAA, Appeal No. 85-1593 (May 28, 1986) (unpublished). Mr. Solerwitz was deemed by this court to have ignored, in his reply brief, many authorities cited by the government. See, e.g., Mendoza v. Department of Transportation, FAA, Appeal No. 85-1994 (September 9, 1986) A-109 ~ ya ete _ aa ~_ ca a i Baan 2 See ata ¥ ? 1 e ~ — es Oh tha ee We? ag } a a © > ~ panied Arad ; ; ee s — a, 1 a ‘ : $ ‘ Ff «5 — ie — pe de : Ite theese sTt — $ -« P« ee © pees er 2 > IZ ® bs wa tn 1 ee oe Z *% ‘ J Paha a Pt ee tm ont! a rem Ca ave es Ti - i q yx ee ‘ \ = bf La 7 i rc i. *¥ pe EE a a 7 t ee i = = fy = MW ; Sei ssninne.2. 2 eo... : a ‘ J “ay, satin i Tb ale aed . 3 qe et Te rene ; Ee a ee ed, iat et $ I . en ee a SR fe ds aos 9 +4 7 eth me at A 4 be eee oy Ce Ee SAL BSN Q ‘ Niet Cree eee 7 ; fd fy ; ‘en ; 4 y y sd r 4 , “aT a 4 — gbhey } t= Dp te aT aa ar : ar pe Byes ie tue r bal bi RAS De SE ee ee eae: ep AP Leeiae. Sty oe ae “ 7 : Ak Tables a a Ieee Peet Pia — Seay tek. ea ee Ay ee Ry een) Geta.) ak AY SOL hoes Ps )) ; } a, ee ak | eS th eS kA el, Pena tr oo are Coenen meni hdl lye t- SPT ee not in the Wagner class; it challenged only the board's decision that petitioner was unsuitable for reemployment under Wagner. McCormick v. Office of Personnel Management, Appeal No. 86-1397 (December 4, 1986) (unpublished). In all three appeals, Mr. Solerwitz attempted to reargue the merits of the original removals by the FAA, an issue not before this Court. Mr. Solerwitz was fined a total of $600 for the filing and maintenance of the three rehiring appeals because they were frivolous and his conduct constituted an abuse of the judicial process. 10. These findings emphasize Mr. Solerwitz's FAA cases to illustrate the basis for the action of the court which resulted in sanctions against him but they do not attempt to include all of his non-FAA cases. He has appeared as counsel in the latter type of A-116 case. For instance, in Moir v. Department of the Treasury, 754 F.2d 341, 343 (Fed. Cir. 1985), he and his client were sanctioned jointly and severally with a $500 penalty in favor of the government for filing a frivolous appeal from a decision of the MSPB which had dismissed the appeal to it because it was untimely filed. The court was shown no abuse of discretion by the board. The delay was held not to have been caused by circumstances beyond appellant's control or excusable neglect. The Order of the Court to Show Cause ll. On January 21, 1987, the court entered an in banc order directing Mr. Solerwitz to show cause, by written answer within 30 days, as to why he should not’be suspended for 2 years from representing Clients before the Federal Circuit. At the request of Mr. Solerwitz he was given an A-117 onaitinens 30 days to respond and he did so on the last day, March 23, 1987. The order required a response as to whether oral argument or an evidentiary hearing was desired which, if accorded by the court, was to be strictly limited to the conduct described in the order. A Declaration of Admission To Practice was also required and the content thereof is stated in finding l. 12. The order to show cause recounted the five instances in which the attention of Mr. Solerwitz was directed by letter to the impropriety of filing frivolous appeals and required him to state how adjudication of his appeals would involve issues not decided in any of the published lead cases. It was mentioned that he also had been warned by numerous sanctions under Fed. R. App. R. 38 in his rejected appeals. The order recounted that he had_maintained 142 frivolous appeals and had filed 107 virtually identical briefs. He was charged with having -- disregarded Federal Rules of Appellate Procedure and this court's rules, failed to file appendices, provided no citations to the record, ignored authorities cited by the government, advanced numerous arguments on issues not on appeal, and repeatedly raised contentions not raised before the Merit Systems Protection Board. Mr. Solerwitz's briefs were devoid of any showing on which the decision appealed from could even possibly be reversed, devoid of any basis on which the precedents of this court could be distinguished in law or fact, and devoid of any effort to make such distinctions, in total disregard of this court's written instructions of December 10, 1984. Mr. Solerwitz‘' conduct in filing and maintaining frivolous appeals having no colorable basis in fact or law has wasted the time and limited resources of this court, has denied availability of the court's resources to deserving litigants, and has constituted flagrant and totally inexcusable abuse of the judicial process. Mr. Solerwitz's conduct has been “unbecoming a member of the bar of the court." Fed. R. App. R. 46(b). See, e.g., A-119 In re Snyder, 105 §.Ct. 2874 (1985); In re Bithoney, 486 F.2d 319 (lst Cir. 1973). Damages imposed as of the date of the order were stated to total $74,500. The current total is $78,300, plus costs and fees of $11,843.94 for the filing of frivolous appeals. These sums have been paid in favor of the government. 13. On March 23, 1987, Nathan Z. Dershowitz, Esq. attorney for Mr. Solerwitz, filed a Motion for Disqualification of Each of the Judges of the United States Court of Appeals for the Federal Circuit and for Alternative Relief. The motion also requested a stay pending resolution by the United States District Court for the District of Columbia of an action entitled Arakawa v. Reagan, Appeal No. 85-3488, and an enlargement of time for a response on the merits after determination of both matters should the relief sought therein A-120 denied. The Federal Circuit was named a defendant in the Arakawa matter, but was dismissed from the case by a memorandum opinion and ordered of the district court on July 28, 1987. The motion of March 23, 1987, was supported by an ll-page affidavit of Mr. Solerwitz and a 4-page affidavit of Mr. Solerwitz. 14. The affidavit of Mr. Solerwitz requested that if the motion of March 23 was denied the court should consider his affidavit as his answer to the order to show cause. However, he also requested oral argument and an evidentiary hearing. The affidavit, in summary, recounts that he was approached by discharged former air traffic controllers who requested that he represent them and that in doing so it was “an economic disaster for my firm." He charged that his clients were denied due process by the MSPB and that the ~ A-121 board was biased and engaged in procedural improprieties which were identified. The affidavit charges that procedures of the court, which led to suspension of the appeals of many of his clients pending decision in the lead cases, deprived them of “individualized justice" only in order for the court to clear its calendar, and that this was a denial of due process to his clients. He denied that any of the appeals he filed were frivolous and cites his brief in Stefansky v. Department of Transportation, FAA, Appeal No. 85-1684A, as an example of his good faith and compliance with the court's orders. That case was decided, per curiam, by an unpublished opinion on August 1, 1986, affirming the MSPB decision and citing lead cases which had already disposed of the issues raised in Stefansky. A penalty of $200 was imposed on Mr. Solerwitz, in favor of the government, for filing a A-122 ~ ~ i ¥ : b ? Bie Ae rt he é “2 » Al ‘ * ¢ P 2 te me ae a ™ a ad ¢ dl be dk Se baad 24 ee ‘ , he eee oye ea j ! : ; Cute -_ iu ofa pe ; oe WA eet > “ ea ~ a. ) dba + a tia . pe as ©. ay - a an: aoe ee rea ahs & ee “vf oF & M “eo. oe POSAS bf eal / pr =e > . » i, ee 4 8.4 ae a | 7 7 — ¢ ium o Let ; ¢ 4 ; i. ASG SUL aes hearing steps, potential or actual. This was the standard Solerwitz fee arrangement for all ATC claims. Mr. Aweau made it clear to Mr. Solerwitz that his case must be appealed or other counsel would be employed. He further explained his preference that his case not be consolidated with others. Mr. Aweau was unable to pay any fees but “worked it off" by gathering data for Mr. Solerwitz relating to other ATC clients. 34. In the unanimous per curiam opinion in Aweau v. Department of Transportation, FAA, No. 85-1724 (Fed. Cir. August 1, 1986) (unpublished), the court decided 18 appeals Which had been consolidated, including the case of Mr. Aweau, and held that all of the respective appeals were without merit and that each of the contentions had been made, considered, and rejected in published lead cases, which were cited by the court, or were A-141 7A joe" 213 aq 1 {Wiest Cre ° ' * i‘ 2S eo 6, 2 a ac _ 7 j a sh ; - e328 . trad t m : 4 * Ler ti 4 id OS CE oad —- hm oe ~ ately STs Ae | 2 $1 peo, ie neheed Fines: Ee ™ et34 Bie fesaDivenane: ie it aa03 wre ory coe sicanh | ah 5OF pores dobeien . 4 ‘ ngee nee, oak: sie a A pain ay a as e snon gee REDS Kee: perreee: ipa tits hada Cogetia’: aed: a. -_— ~ é e » ¢ + — ) i “ i; Feet o ee 2 ‘ o ’ vrs ca Kl P > bik’? 2 » were -? Fi . = +,¥ aj J i ee © - t 1 ra sf £ : oa ‘ a : 4 7 ’ a - E | en ——— March 1982 under the standard fee arrangement previously described. She paid the $750 for the regional MSPB procedures and borrowed $2,500 which she thereafter paid for an appeal. Although cautioned by counsel that an appeal might result in penalties, she testified that she insisted Mr. Solerwitz proceed with her appeal or she would get another lawyer. Her appeal was unsuccessful. 36. In Akola v. Department of Transportation, FAA, No. 85-1675 (Fed. Cir. July 16, 1986) (unpublished), the court unanimously affirmed the decision of the MSPB, sustaining the dismissal of Mrs. Pederson, one of 15 petitioners in that consolidated appeal. On the basis of previously decided similarly issues of fact and law in the published lead cases, which the court cited, the appeals of all 15 petitioners were held to be frivolous and counsel's conduct to be an abuse of the A-143 judicial process. The consolidated brief was described as substantially similar to other briefs filed by Mr. Solerwitz. He was sanctioned $1,500 and cots which have been paid. 37. Mr. Ronald May testified as a discharged air controller and client of Mr. Solerwitz who was employed because he was expected to be aggressive in pursuing an appeal. Mr. May paid the initial standard $750 fee for the regional MSPB proceedings which resulted in an adverse decision. He insisted on an appeal but could not and did not pay the $2,500 fee which was waived because of May's financial condition. He testified that he was one of four controllers who went to prison for strike participation, having been found to be in criminal violation of the no-strike statute, 18 U.S.C. §1918. He received a sentence of 1 year and 1 day and negra OOS": -- ~~ —o actually served 90 days, plus 18 montns of supervised probation. Mr. May had 1l years of employment as an air controller at Fort Worth, Texas, prior to his discharge in August 1981. He had also served as a union president until shortly before the strike. 38. Professor Monroe H. Freedman was called by Mr. Solerwitz as an expert witness in matters of legal ethics. He is a professor of law and former Dean of Hofstra University Law School, Hempstead, New York. He has been a law professor for 30 years, including 16 years at George Washington University. A graduate of Harvard University School of Law, he has qualified as an expert witness on lawyers' and judges' ethics before numerous courts and in both federal and state disciplinary proceedings. Professor Freedman was the first chairman of the Legal Ethics Committee of the District of Columbia Bar and A-145 ;has been three times chairman of the Committee on Professional Responsibility of the Society of American Law Teachers, and chairman of similar committees of multiple bar associations. Over the years, he has written and published extensively on legal ethics. He testified that his book, Lawyers' Ethics in an Adversary System (1975), received the American Bar Association's Gavel Award Certificate of Merit in 1976, that it has been favorably reviewed, and that his book and articles on lawyers’ professional responsibilities have been widely cited. As reporter to the Roscoe Pound Foundation, he was a principal draftsman of the American Lawyer's Code of Conduct and is reviewing editor for the Georgetown Journal of Legal Ethics. Among other subjects, he ” teaches legal ethics, has been a consultant to bar groups on Model Rules of Professional Conduct, has been a speaker at many bar A-146 association meetings and law schools on lawyers’ professional responsibilities, and has had experience in trial and appellate litigation. Professor Freedman is a member of the bars of New York, Massachusetts, Pennsylvania, and the District of Columbia, and is admitted to practice before several federal trial and appellate courts and the Supreme Court of the United States. 40. In Professor Freedman's opinion it is necessary, in order to determine what is “conduct unbecoming a member of the bar," to understand both the code of professional responsibility and the lore of the profession. The latter goes back many years to the English tradition which he illustrates with samples from Gilbert's Oxford Book of Legal Anecdotes (Oxford University Press). The thrust of his view is that it is a lawyer's duty to represent his client zealously before the court, that if the lawyer is in doubt he should resolve issues in favor of the client, and beyond that the court must indulge in a presumption supporting the lawyer's judgment. He regards as frivolous only a paper that is fallacious on its face as distinguished from a sham pleading in which the argument is plausible but the lawyer knows or should know that the underlying facts are not there to support it. 41. Had Professor Freedman been consulted by Mr. Solerwitz on whether to go forward with appeals in view of tine decisions in the lead cases and the court's warnings about frivolous appeals, he would have advised that if the clients wished to proceed it was Mr. Solerwitz‘s ethical duty as a lawyer to do so and that this would especially be so if the appeals could be distinguished from the lead cases. He did not regard this as a close A-148 case. He knew of no authorities that would have taken a contrary position. It was his opinion that what Mr. Solerwitz did on behalf of his clients was in the tradition of the American system of individualized justice. He pointed to the First Amendment right to petition for the redress of grievances as including the right to litigate a civil case, and submitted that a bad motive on the part of a litigant is not a justification for dismissing a case. 42. It was the stated opinion of Professor Freedman that, confronted with orders such as those of the court in this case, it would be totally improper for a lawyer to withdraw his client's cases, having concluded that they were frivolous. Because a lawyer feels that he will likely lose before a given court is no reason not to pursue an appeal. “Creative lawyering"” in the face of A-149 contrary precedents has resulted, in his view, in landmark decisions and opinions which vindicated claims of important rights. By the same token, he would not regard the failure to file appendices, overlong briefs, and ignoring authorities, as conduct unbecoming a member of the bar. In his opinion, the American Bar Association Model Code of Professional Responsibility and the communications which Mr. Solerwitz received from the court would not give counsel fair warning that the appeals being maintained would constitute conduct unbecoming an officer of the court. A sanction by the court “could seriously chill zealous advocacy and creative advocacy” and impair the opportunity of judges to benefit from the inaginativeness and creativity of lawyers who appear before then. Mi aes: alana aaa 43. In summary, Professor Freedman's opinion is that if a lawyer believes in good faith that his case is not a sham and his client instructs him to proceed, it is his duty to do so notwithstanding any instructions to the contrary from a court. This is so even if the lawyer has no faith in his argument | because that does not make it a frivolous argument. Further, the mere fact that a court may have a large caseload which it wishes to move expeditiously, while a justifiable concern, "does not reach anything like the weight of the lawyer's obligation of zealous representation," and "the lawyer's obligation is to indulge every presumption factual and legal in favor of the client” even, if necessary to argue that the earth is flat. In his view, a court must “bend over backwards to defer to counsel's judgment with regard to what is filed and what is argued." The A-151 court's duty is to decide appeals expeditiously and to obtain the necessary resources to deal with its caseload rather than to “push [punish] lawyers for making arguments the court rejects but [should] simply .. . reject the argument." He further stated that "“[Lo]ne thing about due process of law is that nobody has ever promoted it on grounds of efficiency." Professor Freedman does not reject the lead case concept for docket control by a court except to the extent it subverts the rendering of individual justice and ignores the individual facts of each claimant's case. He knew of no judicial precedent supporting the court's proposes action as reflected by its order to show cause. 44. Professor William E. Hellerstein testified as an expert on legal ethics oe applied to appellate advocacy. A graduate of A-152 Harvard Law School in 1962, he is presently a professor of law at Brooklyn Law School. Previously he was in private practice and for 20 years was employed in the Appeals Bureau of the Legal Aid Society in New York. For 16 years he was in charge of the unit and personally argued over 200 appeals. He supervised 165 attorneys in the handling of both civil and criminal appeals in approximately 30,000 cases. In 1983 he received an award from the New York Bar Association for the outstanding delivery of defense services. 45. Professor Hellerstein testified that in his entire practice he never once turned down a client's request to bring an appeal because he believed it was frivolous, if he felt there was anything that could be argued. He agreed with Professor Freedman that while it may be frivolous to argue that the earth is A-153 flat, it is not inappropriate to present such an argument because, hopefully, somewhere a judge might accept the argument. He has for this reason frequently presented arguments he did not believe in both to persuade the court and for the further purpose of preserving a point for appeal to a higher court. Professor Hellerstein distinguished as unacceptable a sham argument which he defined as one "that could not be based legitimately on the record in the case." He did not regard the appeals filed by Mr. Solerwitz to be shams. Professor Hellerstein stated that he had served on a bar grievance committee and further said: "I have not seen any appellate court act against an attorney for perfecting an appeal in the manner in which these cases were perfected." 46. Professor Hellerstein would not the doctrine of stare decisis interfere with a lawyer's duty to make a good faith argument A-154 for an extension, modification, or reversal of a legal precedent. If the Supreme Court has denied certiorari on an issue, since such a decision is not on the merits, it is proper in his view to continue to insist on reconsideration of an issue previously decided unfavorably to his case, because the court may later change its mind about it, if given the opportunity to do so. This possibility may be enhanced by a change in the membership of the court. He referred to reversal of precedents in civil rights and criminal charges. The professor said that “what is today's joke is tomorrow's constitutional principle," and "the rights under the [CJonstitution are the rights of the individual.” 47. In the opinion of Professor Hellerstein, the sanctioning of lawyers is not an appropriate means of achieving docket control. "..- I don't think that docket A-155 control can be the business of an appellant lawyer." In multiple cases involving the same issue he would file one brief, and additional briefs would incorporate legal arguments by reference to the first brief. The additional briefs would also provide the fact-specific aspects of each client's case. Had he been consulted by Mr. Solerwitz upon the latter's receipt of the court's communications about his cases, he would not have advised him to abandon his clients just because of the decisions in the lead cases. In his opinion, the court was asking counsel to "close the courthouse door" on his clients. To do so might subject counsel to a malpractice claim and would waive certiorari to the Supreme Court. The lawyer's legal and ethical obligation was stated to be that of persisting in appeals as clients demanded. A-156 48. Mr. Harvey A. Silverglate was the third and final witness called as an expert on behalf of Mr. Solerwitz. Mr. Silverglate, a graduate of Harvard University Law School in 1967, is engaged in the private practice of law as a partner in the Boston firm of Silverglate, Gertner, Baker and Fine. For 7 years he taught a course at Harvard in professional responsibility. Since its creation 8 years ago, he has served as chairman of the Standing Committee on Legal Ethics of the Massachusetts Association of Criminal Defense Lawyers. In connection with these responsibilities Mr. Silverglate has frequently been consulted by lawyers about their problems with clients and courts and has represented some of these lawyers. 49. In preparation for his testimony, Mr. Silverglate read the court's notices to Mr. Solerwitz and stated, “I have skimmed a couple A-157 Pre ae ee ee Pies Ls . oY. wie ™_ - ee of briefs and the appendices and some other papers filed in the case." He gave it as his professional opinion that those briefs filed by Mr. Solerwitz complied with the orders of the court. He made specific reference to the brief filed in Adsit-v. Department of Transportation, FAA, No. 85-1639 (Fed. Cir. July 16, 1986) (unpublished). He noted in that case, involving 32 petitioners, that there were pages distinguishing each client's facts from those in the decided lead cases, and there was a separate section arguing legal errors. Mr. Silverglate observed that the brief was “uncommonly structured" in that the legal argument preceded the facts and Suggested that this could have caused the court "to look to the common legal arguments rather than to the fact-specific fact arguments." 50. Mr. Silverglate remarked upon what he described as the “chaotic situation" faced by Mr. Solerwitz, arising from the circumstances outlined in testimony that the court failed to make timely rulings on motions to waive the appendices or to grant permission to file briefs which exceeded the page limits permitted by the rule. He said that confusion was understandable, however, given the court's denial of the motions and the short time limits in which to file. He expressed puzzlement as to why the court would not waive appendices or permit overlong briefs, given multiple similar cases which it seemed expedient to consolidate. It was his view that the motions were reasonable and if granted would have been a benefit to the court as well as to the air controllers. He speculated that the problem may have arisen A-159 with a misunderstanding of the situation by the clerk or a lack of adequate communication between the clerk and Mr. Solerwitz. 51. In the opinion of Mr. Silverglate, Mr. Solerwitz could not withdraw from the cases just on account of adverse decisions in the lead cases and that he had an ethical obligation to persist in the appeals given the insistence of the clients and the obligation to get decisions, although expected to be adverse, so that the right to seek certiorari would be protected. He did not regard the appeals to be frivolous under these circumstances. While agreeing with Professor Freedman's definition of frivolity, he testified: "My own office informally has what we call the giggle test. You discuss the issue, the position you are going to take, it nobody giggles it passes muster." Mr. Silverglate knew of no judicial precedent A-160 which would have suggested to Mr. Solerwitz that if he pursue the appeals he would be disciplined. In his opinion, case law and the lore of the profession was to the contrary and any sanctions imposed would “chill lawful vigorous advocacy." He suggested, therefore, that in some situations it is the duty of the lawyer "to brave .. . even judge's views that what the lawyer is doing is frivolous." 52. None of the expert witnesses rejected the employment of the lead case procedure to deal with hugh numbers of cases. Professor Freedman indicated he would do so only if if prevented evaluation of the individual facts of each claimant's case. None of the experts rejected consolidation of appeals. The MSPB employed both procedures in dealing with over 10,000 air traffic controller appeals. The court's notice to all attorneys in the air controller cases on February 24, 1983, stated: A-161 "CIJn view of the large number of cases, it is appropriate that this court first determine the common controlling legal issues as soon as possible and thus avoid repetitious and unnecessary decision of the same issues in many cases." The court indicated that it would follow the MSPB's practice of consolidation, identification, and decisions in test cases containing similar issues. In his requested findings and conclusions Mr. Solerwitz did not point to any objection made to the court as to these procedures before the lead cases were decided. The court in its decisions addressed each petitioner's allegations individually by reference to precedents where similar fact and legal issues had been decided. A-162 UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT Miscellaneous Docket No. 145 IN RE JACK B. SOLERWITZ DECIDED: June 17, 1988 Before MARKEY, Chief Judge, FRIEDMAN, RICH, DAVIS, SMITH, NIES, NEWMAN , BISSELL, ARCHER, and MAYER, Circuit Judges. FRIEDMAN, Circuit Judge. These are exceptions by Jack B. Solerwitz, a member of the bar of this court, to the findings and recommendation by Senior Judge Marion T. Bennett that Mr. Solerwitz be disciplined for engaging in conduct unbecoming a member of the bar of this court, in violation of Rule 46(b) of the Federal Rules of Appellate Procedure. Judge Bennett recommended that Mr. Solerwitz be suspended “Because of illness, Circuit Judge Davis took no part in the decision of this case. Circuit Judge Michel took no part in the consideration Or decision of this case. from practice before this court for two years, but that enforcement of the suspension be neld in abeyance for two years, “pending his demonstration or rehabilitation during probation." We agree with and adopt Judge Bennett's determination that Mr. Solerwitz engaged in conduct unbecoming a member of the bar of this court. We modify the proposed disciplinary action to a suspension for one year, but reject the recommendation that the suspension be held in abeyance. Our order of suspension will be effective ninety days from the date of this order. I This court instituted this proceeding an in banc order directing Mr. Solerwitz to "show Cause why he should not be suspended for two years from representing clients before this court." The proceeding resulted from Mr. A- 164 Solerwitz's conduct in representing a large number of former air traffic controllers in their appeals to this court from decisions of the Merit Systems Protection Board (Board) upholding their removals because of their participation in the 1981 illegal air traffic controllers strike. After Mr. Solerwitz filed in this proceeding various motions that the court denied -- including motions to disqualify all members of the court and to stay the proceedings -- Senior Judge Bennett was appointed to conduct the hearing that Mr. Solerwitz requested. Following the hearing, Senior Judge Bennett filed a lengthy opinion and made 52 detailed findings of fact, on the basis of which he made his recommendation described above. A. The background facts, as set forth in Judge Bennett's findings and opinion, are uncontradicted. The government dismissed more A-165 than 11,000 air traffic controllers for their participation in the illegal strike. More than 10,000 of them appealed to the Board. Following the Board's decisions, approximately 4,600 petitions for review were filed in this court. Many of these petitions covered cases- that the Board had consolidated and many which the court consolidated. Because of the extraordinarily large number of these cases, the court, in consultation with counsel who elected to participate, designated twelve of them as "lead caces," which it believed to present most of the legal issues that were common to the air traffic controllers' appeals. Those twelve cases were scheduled for expeditious briefing and oral argument. On February 24, 1983, all other pending air traffic controller cases were suspended. A- 166 Mr. Solerwitz, who initially represented between 800 and 1,000 air traffic contre! ere before the Board, filed appeals with this court for 736 controllers. As a result of the consolidation of appeals, Mr. Solerwitz had pending before this court 154 petitions for review. He was sole counsel in one of the twelve lead cases. On May 18, 1984, the court decided the twelve lead cases. Schapansky v. Department of Transp., and related cases, 735 F.2d 477- 549, cert. denied, 469 U.S. 1018 (1984). On the same date, the court sent a notice to the attorneys and the petitioners in the other air traffic controller cases that it would notify them upon the final disposition of the lead cases, that within 30 days of the notification they must given written notice to the court if they wished to continue to prosecute their appeals, and that failure so to notify the court would result in dismissal of the appeal.. "The notice to counsel and petitioners included, among other matters, copies of the court's opinions in the lead cases and directed attention to the impropriety of maintaining frivolous appeals, citing published cases of the court on that issue." Finding 4. a Finding 5 and a portion of finding 6 stated: On December 10, 1984, in conformity with the May 18, 1984 notice, counsel and petitioners in all ATC cases were notified that the Supreme Court had denied certiorari in all lead cases in which it had been sought and that mandates had been issued in those cases from this court to the MSPB. This notice also advised that the suspension entered on February 24, 1983, would remain in effect to and including January 10, 1985. Before the latter date, pending petitions for review were required to be withdrawn or new ones filed. Absent such action the petitions would be dismissed. A renewed petition was required to contain "a statement of the issues A--168 -— relied on and not decided in any of the ‘Lead Cases.'" The notice also indicated where the lead cases were published and again emphasized the impropriety of frivolous appeals, repeating the precedents cited in the May 18, 1984 notice. -++ On July 12, July 31, and August 30, 1985, the court by memorandum requested all ATC counsel to review the propriety of maintaining appeals in light of the need to avoid frivolity and the accompanying abuse of the judicial process. With each of the five notices in 1984-85 the court furnished counsel with a set of published lead cases or citations thereto. B. The order to show cause made the following allegations: Mr. Solerwitz was thus repeatedly and expressly warned by this court against filing and maintaining frivolous appeals in air traffic controller cases that presented legal issues and fact patterns indistinguishable from those presented and decided in the precedents represented by the Lead Cases. Ignoring those warnings, Mr. Solerwitz, who was sole counsel in one Lead Case, maintained 1l frivolous appeals pending on May 18, 1984 and filed and maintained another 131 separate frivolous appeals in air traffic controller cases. In his briefs in those a- 169 appeals, 107 of which were virtually identical, Mr. Solerwitz disregarded Federal Rules of Appellate Procedure and this court's rules, failed to file appendices, provided no citations to the record, ignored authorities cited by the government, advanced numerous arguments on issues not on appeal, and repeatedly raised contentions not raised before the Merit Systems Protection Board. “Mr. Solerwitz’ briefs were devoid of any showing on which the decision appealed from could even possibly be reversed, devoid of any basis on which the precedents of this court could be distinguished in law or fact, and devoid of any effort to make such distinctions, in total disregard of this court's written instructions of December 10, 1984. Mr. Solerwitz’ conduct in filing and maintaining frivolous appeals having no colorable basis in fact or law has wasted the time and limited resources of this court, has denied availability of the court's resources to deserving litigants, and has constituted flagrant and totally inexcusable abuse of the judicial process. Mr. Solerwitz' conduct has been “unbecoming a member of the bar of the court," Fed. R. App. P. 46 (b). A- 170 The court decided approximately 140 cases in which Mr. Solerwitz was counsel, each in a separate opinion. The court determined that the vast majority of those appeals were frivolous and imposed upon Mr. Solerwitz total sanctions of $78,300 for filing and maintaining frivolous appeals. In Des Vignes v. Department of Transportation, 791 F.2d 142 (Fed. Cir.), cert. denied, 107 §.Ct. 185 (1986!;, one of the cases in which a penalty ($1,000 in that case) was imposed upon Mr. Solerwitz for filing a frivolous appeal, the court descrided in detail the ways in which Mr. Solerwitz had engaged in “Abuse of the Judicial Process.’ Id. at 145. The court there stated: Except for a paragraph or two relating to individual air controllers, 107 of those briefs are virtually identical to that filed in this case. That they are copies is indicated by the presence of the same typographical errors in each, and by the failure to distinguish between appeals involving one A-171 petitioner from those involving multiple petitioners. Each contains the same type of patently frivolous constitutional arguments, rejected contentions, and unsupported assertions of fact discussed above. Each disserves the court in violating the rule requiring citations to the record. The court was required to check the record: and was required to read, and has read, all 131 sets of briefs, in an effort to insure against the possibility that a meritorious appeal might otherwise be overlooked.... Respondent prepared briefs in response to each of counsel's 131 virtually identical briefs. Counsel's failure to refer to the record forced Respondent to do the work incumbent upon counsel. Counsel's failure to supply an appendix in some cases forced Respondent to do so in those cases. Respondent cited the frivolous, rejected, and unsupported contentions discussed above. Respondent also cited counsel's frequent, repeated, and brazen violations of this court's rules. Mr. Solerwitz' reply briefs simply ignored those citations, merely stating that the earlier cases were distinguishable (but citing no distinguishing factors), ignored Respondent's charge that he had failed to cite to the record, and stated that the appeal was filed to give Des Vignes access to the court. Faced with clear and insurmountable A- 172 indication that all 131 appeals were frivolous, Mr. Solerwitz had continued to maintain this and the other 130 appeals. Id. at 145-46 (emphasis in original) (footnotes omitted). C. At the hearing, Mr. Solerwitz, represented by counsel, presented seven witnesses. Four of them testified with respect to the facts. The other three, experts in legal ethics, gave and explained their opinions on the propriety of Mr. Solerwitz's conduct. Mr. Solerwitz did not testify, but relied upon an affidavit he previously had submitted in support of his motion, noted above, to disqualify all of the judges of this court, which he requested the court to consider as his answer to the Order to Show Cause if the court denied his motion. One of the four fact witnesses was Mrs. Solerwitz, Mr. Solerwitz's wife and law partner, who “was active in handling claims of aA- 173 air controllers represented by her firm." Finding 21. She described in detail the work involved in handling the cases and the procedural and other problems involved, characterized the court's requirement of filing “hundreds of appendices as ‘a nightmare’ and ‘impossible’ within such a limited time as allowed by the court," Finding 25, and stated that it was "the view of the firm, and all of its clients who appealed, that it was important to get a final | individual judgment in each case to preserve each client's right to apply for certiorari to the Supreme Court if relief was not otherwise granted." Further, according to Mrs. Solerwitz, some clients expressed hope for a congressional political solution to their claims for restoration to duty if no judicial remedy was forthcoming." Finding 32. A- 174 : ae ; Wen se ie pes Wes, Veter Saag S i ie Pm oe The three other fact witnesses were former air traffic controllers whom Mr. Solerwitz represented before the Board and the court. They testified that they had insisted that Mr. Solerwitz proceed with his or her appeal to the court. Findings 33, 35 and 37. The court imposed sanctions upon Mr. Solerwitz in each of those cases, which it found frivolous. The witnesses testified that Mr. Solerwitz's standard fee for handling these cases was $750 for Board proceedings and $2,500 additional for the court proceedings, but only one of them paid the full fee. Counsel for Mr. Solerwitz "made an offer of proof that if the other 14 former ATC clients identified as potential witnesses in the pretrial response were called, their testimony would correspond to that of" those three former controllers. Finding 19. a AIS The three expert witnesses, all of whom Judge Bennett found to be “experts in the field of legal ethics and professional responsibility" (Finding 20), were Professor Monroe H. Freedman of Hofstra University Law School, Professor William E. Hellerstein of Brooklyn Law School, and Harvey A. Silverglate, a practicing lawyer in Boston, Massachusetts. The three experts were all of the opinion that Mr. Solerwitz's conduct in the air traffic controller cases was proper and did not involve professional impropriety. Judge Bennett summarized their testimony in detail in Findings 39 through 5l. Professor Freedman stated that “as long as counsel in good faith believes that his case is not frivolous, that it is his duty to proceed with it notwithstanding any instructions to the contrary from a court” and that “the court is required to bend over A-176 backwards to defer to counsel's judgment with regard to what is filed and what is argued.... As Judge Bennett found, Professor Freedman “regards as frivolous only a paper that is fallacious on its face as distinguished from a sham pleading in which the argument is plausible but the lawyer knows or should know that the underlying facts are not there to support it." Finding 40. Judge Bennett accurately summarized Professor Freedman's view in the following statement in finding 41: “Had Professor Freedman been consulted by Mr. Solerwitz on whether to go forward with appeals in view of the decisions in the lead cases and the court's warnings about frivolous appeals, he would have advised that if the clients wished to proceed it was Mr. Solerwitz's ethical duty as a lawyer to do A- 177 so and that this would especially be so if the appeals could be distinguished from the lead cases." Professor Hellerstein's opinion was that "a lawyer has an obligation to persist in making and remaking the same argument to an intermediate court at least until the Supreme Court has foreclosed that court on the merits(.]" Professor Hellerstein testified that if Mr. Solerwitz had consulted him in 1984 and told him “of the warnings that he had received against filing frivolous appeal” and if Mrs. Solerwitz had told him about the problems facing her firm in handling the cases and about the discharged air traffic controllers’ insistence on going ahead with the appeals, “I would have told him to go ahead and to seek if possible either through motions, some accommodation with respect to the rule or find someone that was available to A- 178 explain what was on the court's minds." Judge Bennett stated in Finding 45 that "Professor Hellerstein testified that in his entire practice he never once turned down a client's request to bring an appeal because he believed it was frivolous, if he felt there was anything that could be argued which he defined as one ‘that could not be based legitimately on the record in the case.' He did not regard the appeals filed by Mr. Solerwitz to be shams." ‘ Mr. Silverglate testified that he "“agee(d] with Professor Freedman's definition on trivolity" and did “not consider the legal arguments made [by Mr. Solerwitz] to be frivolous." Judge Bennett found that "[LiJn the opinion of Mr. Silverglate, Mr. Solerwitz could not withdraw from the cases just on account of adverse decisions in the lead cases and that he had an ethical obligation to A-. 179 persist in the appeals given the insistence of the clients and the obligation to get decisions, although expected to be adverse, so that the right to seek certiorari would be protected" (Finding 51). D. Judge Bennett rendered a comprehensive and scholarly opinion. Drawing upon In re Bithoney, 486 F.2d 319 (lst Cir. 1973), discussed below, in which the eourt of appeals upheld a lawyer's suspension from practice for filing a number of successive frivolous applications, Judge Bennett stated that Mr. Solerwitz's conduct was similar to that involved in Bithoney. Judge Bennett pointed out that "({tJhe facts of the present proceeding involve the continued filing and maintenance of multiple frivolous appeals" and stated that “the central focus here is whether the entire course of conduct by Mr. Solerwitz, taken as a whole, amounts to conduct A- 180 fied Ty ee se : i ‘Sa, 0) hy - ° a o“—s Snir a oe « 5%. “y - : ba »- wd ee ~ “- ‘ ' 3 . . “7 wigdoel behbyeneoer ae J sores: ee 6728 1egoig svip oF berted: Ifemnad Z . » : ; oc p) + ' 2 os 7 = rie ; ‘apesotiw s290n6 serdt si to snbReeieneD em F feo 4 >[->% . 5h slaeqqe ad’ aetit enitie: £498. fee a : Si : arts Lo bLavi3s° 30g°S5 fora 4g v ‘ | einstvex ¥LGA ase evtereios a | siepege sts ao'w beedorg oF> (bet topes snesetent- Tedhetis’ bid 3e * gipos eis Fed sep le aa a te \ Fd giv “ses teyas : ae ~~ isiae “a *R4 dy BYSheGis°?s @6 Sel Feve t P ~ 2 7 . . 7 goto -of esate Glad agOiovesz2 -@: oi tet ade ad. treats eidiescqgass a | ’ a> Se led-'e8e- ted? Seisigo ens ¢ = ‘ ~« soieteio® 24s vigo- sonar ti etari 4 f these briefs are not frivolous but also three experts who are frequently and respectfully called upon to made [sic] such judgments." Mr. Solerwitz states that "[{tJhe quintessential issue posed by this case is thus whether, when the Court and ethics experts fundamentally disagree as to whether an attorney's actions on behalf of his clients constitutes ‘conduct unbecoming a member of the bar,’ suspension, in addition to financial sanctions, is appropriate.... He further maintains that, in light of the disagreement between this Court and the ethical experts, to impose the sanction of suspension in a case where reasonable and knowledgeable people disagree on whether his actions were unbecoming a member of the bar will have a chilling effect on creative lawyering, will A- 185 Paras | stifle reconsideration of precedent and will be generally detrimental to our system of justice." We have reviewed the testimony of tne three experts and their conclusions regarding the propriety of Mr. Solerwitz's conduct. We agree with Judge Bennett's conclusion, however, that despite the opinion of those experts, Mr. Solerwitz engaged in conduct unbecoming a member of the bar of this court in his handling of the air traffic controller appeais. Contrary to Mr. Solerwitz's contention, it is this court and not Mr. Solerwitz's experts that must determine whether Mr. Solerwitz's conduct was improper. As a member of the bar of this court, Mr. Solerwitz, in Judge Bennett's words, was required to “promote the administration of justice and to comply with the court's rules, notices and orders." On five separate occasions, the court had warned all counsel in the air traffic controller cases against further pursuit of frivolous appeals in cases that could not be meaningfully distinguished from the lead cases. Despite there warnings, Mr. Solerwitz continued to press more than 100 appeals that were frivolous. Mr. Solerwitz cannot escape responsibility for his action by the assertions that his clients insisted that he pursue their appeals and that he believed he could draw adequate factual distinctions between his cases and the lead cases. The expert witnesses’ conclusions were stated in general terms and did not address the specific grounds upon which, in previously imposing the sanctions upon Mr. Solerwitz, this court had concluded that Mr. Solerwitz's appeals were frivolous. It bears repeating that Mr. Solerwitz filed 107 briefs that were A-.187 virtually identical and that merely repeated the same arguments that this court already had rejected in the lead cases. The purported short factual distinctions he sought to draw between the situations of the former controllers in the 131 cases and those in the lead cases were wholly unconvincing and did not provide any meaningful basis for distinguishing the lead cases. Mr. Solerwitz did not inform the court that the legal discussions in all of tnose briefs were identical, including, as the court noted in Des Vignes, "the same typographical errors in each." 791 F.2d at 146. The result, as there pointed out, was that this court “was required to check the record and was required to reach, and has read, all 131 sets of briefs, in an effort to insure against the possibility that a meritorious appeal might otherwise be overlooked." Id. at 146. A- 188 This is not a situation in which a lawyer: makes an argument that a court previously had rejected, in an attempt to persuade the court ‘that its previous decision was erroneous and should be reconsidered and overruled. As the expert witnesses indicated, that is an accepted, necessary, and desirable part of advocacy. Here, however, the court (by an augmented panel of five judges) had decided the twelve lead cases in an endeavor to determine the controlling principles that would govern the bulk of the ve traffic controller appeals. The court expressly warned counsel who pursued the remaining appeals that they must distinguish their cases from the lead cases and that an appeal that failed to do so would be deemed frivolous. Ir response to this warning, other lawyers withdrew a large number of air traffic controller appeals. A-189 Mr. Solerwitz's briefs, however, did not attempt to convince the court that the lead cases, decided only a snort time earlier, had been incorrectly decided and should be overruled. Instead, he merely repeated the Same basic arguments that the court had rejected in the lead cases. Mr. Solerwitz complains that Judge Bennett did not include among his findings of fact any finding that the appeals were frivolous. Perhaps Judge Bennett concluded that that determination was not properly included among the findings of fact. Judge Bennett's opinion, however, leaves no doubt that he determined that the appeals were frivolous. Judge Bennett stated that "(t]he facts of the present proceeding involve tne continued filing and maintenance of multiple frivolous appeals," that Mr. Solerwitz had “abuse[d] ... the legal process by frivolous A- 190 filings." that Mr. Solerwitz's briefs “fell short of meeting an objective standard of nonfrivolity," and his opinion referred to Mr. Solerwitz's “continued course of conduct in filing and maintaining multiple frivolous appeals.” Like Judge Bennett, we conclude that In re Bithoney, 486 F.2d 319 (lst Cir. 1973), supports our determination here. Although, as Mr. Solerwitz points out, the facts in that case are different from those here, the rationale of that decision is equally applicable here. In Bithoney, an attorney filed within nine months nine petitions to review deportation orders. The effect of filing was to stay deportation. In all nine cases the court dismissed the petitions, holding that they were frivolous, not diligently pursued, or both. In the first decision (which covered A-191 - three cases), the court sated: "This court does not propose to have appeals taken simply for the purpose of staying an enforcement of immigration orders, and when prosecution is not diligently pursued, the court presumes that this was the purpose." Id. at 320-21. The court held that the attorney's “pehavior in filing the immigration appeals was improper and worthy of disciplinary action." Id. at 322. It ruled that “the filing of nine petitions for review in immigration cases, some of which were not diligently pursued and none of which raised any substantial issue on review, which petitions caused automatic stays in deportation despite their lack of merit, and six of which petitions were filed after specific warning concerning the impropriety of A-192 such conduct, constitutes behavior ‘unbecoming a member of the bar of the court'." Id. at 323% Although the present cases does not involve an attorney's failure to prosecute cases, which led the court in Bithoney to conclude that petitions to review had been filed solely to obtain an automatic stay of deportation, there are strong similarities between the two cases. In both cases the court concluded that the appeals were frivolous and in both cases the attorneys insisted on filing further appeals after the court had warned them not to do so. Indeed, in some respects Mr. Solerwitz's conduct was more egregious than Mr. Bithoney's. Mr. Solerwitz filed not nine but 131 frivolous appeais. In more than 100 of those he filed Substantially identical briefs without informing the court of that fact, which ” required the court (and government counsel) unnecessarily to read more than 4,000 pages of legal argument. Mr. Solerwitz further argues, with the Support of the expert witnesses, that his failure to comply with the court's rules and orders governing the filing and form of briefs and the filing of appendices was not his responsibility but resulted from the inability of his small law firm to comply witn those requirements within the time deadlines. Judge Bennett correctly rejected this contention. He pointed out that LiJt is difficult to fathom how a 3-person practice, even in ideal circumstances, could adequately handle 154 court appeals for 736 individuals, given the relatively short time frame in which all of the actions arose. If the firm's personnel turnover and shortages were so severe as not to allow compliance with the briefing and record filing requirements of the court, Mr. Solerwitz should have referred some of his clients to other firms or taken alternative means to insure adequate A-194 representation for them. See [In re] Pritzker, 762 F.2d [532] at 533 L7th Cir. 1985] (proper course is to move to withdraw, not ignore court Orders and seek indulgence in disciplinary proceeding); Bithoney, 486 F.2d at 323 & n.3 (illness not an excuse and merely informing clients of difficulty is not sufficient if attorney unable to fulfill obligations to court and client); McMorris v. State Bar, 29 Cal.3a 96, G23 F.20 OL, i7 Cal. Rptr. 829 (1981) (taking on too much work is not mitigating factor since condition is within the attorney's control). B. Mr. Solerwitz also assails the proceedings before Judge Bennett as "procedurally defective." He points out that Rule 46(c) of the Federal Rules of Appellate Procedure provides that a court may take disciplinary action against an attorney only after a hearing (if one is requested, as Mr. Solerwitz did), and charges that the hearing before Judge Bennett was “a sham." Although Mr. Solerwitz's grounds for objection to the procedure are unclear, apparently they are A- 195 that there was no adversary hearing because no one appeared for the court and that "Judge Bennett failed to make any of the factual findings of which the hearing was ostensibly held." To the extent that the latter argument is that Judge Bennett failed to make formal findings that the appeals were frivolous, we have already answered it. As indicated, the basic facts regarding what Mr. Solerwitz did are undisputed. The issue is whether Mr. Solerwitz's action constituted conduct unbecoming a member of our bar. Judge Bennett's detailed findings and lengthy opinion fully explained his reasons for answering that question affirmatively. Mr. Solerwitz's objection that the proceedings were not truly adversary because no one represented the court is difficult to understand. Mr. Solerwitz cannot show and has A- 196 not shown that he was prejudiced because no attorney appeared on behalf of the court to cross-examine his witnesses and present argument against him. The order to show cause fully informed Mr. Solerwitz what the charges against him were and what he would have to refute. He introduced evidence at the hearing that attempted to justify his conduct. Judge Bennett, however, found those explanations and the expert witnesses’ views on the propriety of Mr. Solerwitz's conduct unpersuasive -- a conclusion with which we agree. The procedure followed in this case fully comported with Rule 46(c), which provides: A court of appeals may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing, if requested, take any appropriate disciplinary action against any attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with these rules or any rule of the court. A- 197 | As that provision required, Mr. Solerwitz was given reasonable notice of the reasons why the court believed he had engaged in conduct unbecoming a member of this bar and the opportunity to show cause “to the contrary” at a hearing. Mr. Solerwitz's objections to the procedure followed in this case appears to be nothing more than his dissatisfaction that Judge Bennett did not accept the evidence which in his view established that his conduct in the air traffic controller appeals was proper. III As noted, Judge Bennett recommended that Mr. Solerwitz be suspended from practice before this court for two years but that “enforcement of the suspension of Mr. Solerwitz be held in abeyance for 2 years, pending his demonstration of rehabilitation during probation." A. Although the order to show cause proposed a two-year suspension, we have concluded that a one-year suspension from practice constitutes “appropriate disciplinary action" under Rule 46(c). Mr. Solerwitz has _ been subjected to substantial monetary sanctions for the numerous frivolous appeals he has taken. Moreover, he has cooperated fully with the court in these proceedings. Although we agree with Judge Bennett that, because Mr. Solerwitz has engaged in conduct unbecoming a member of the bar of this court, disciplinary action in addition to those monetary sanctions is necessary, we think a less severe sanction than we originally proposed is appropriate. B. We conclude, however, that the one- year suspension we are ordering should not be stayed. The reasons that have led us to conclude that such~-action against Mr. A- 199 Solerwitz (in addition to the monetary Sanctions previously assessed against him) is necessary and appropriate, also require that the discipline be effective and subject Mr. Solerwitz to a tangible penalty. To impose a suspension and at the same time to stay its effectiveness for its duration as a practical matter would amount to no suspension at all and therefore to no meaningful discipline. We recognize that this is an unusual case. As Judge Bennett noted, this is tne first time that we have had to exercise our Gisciplinary authority under Rule 46(c) against a member of the bar of this court. Mr. Solerwitz may wish to seek Supreme Court review of our decision. To give him full opportunity to do so, our order suspending him from practice will become effective ninety days from the date of this decision. Cf. 28 U.S.C. §2101(c) (1982). ORDER Jack B. Solerwitz is suspended from practice before this court for one year for conduct unbecoming a member of the bar of this court. This suspension shall become effective ninety days from the date of this order. If within that period Mr. Solerwitz files with the Supreme Court of the United States a petition for a writ of certiorari to review this decision, the effectiveness of this order of suspension shall be further stayed pending the Supreme Court's disposition of the petition. UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT Miscellaneous Docket No. 145 IN RE JACK B. SOLERWITZ Before MARKEY, Chief Judge, FRIEDMAN, RICH, SMITH, NIES, NEWMAN, BISSELL, ARCHER, and MAYER, Circuit Judges. FRIEDMAN, Circuit Judge. ORDER DENYING RECONSIDERATION Jack B. Solerwitz has petitioned for reconsideration of our order dated June 17, 1988, that suspended Mr. Solerwitz from practice before this court for one year for having engaged in conduct unbecoming a member of the bar of this court. Mr. Solerwitz contends that the court improperly rejected the recommendation of Senior Judge Bennett, to whom the case was assigned for hearing and to make findings and recommendations, that Mr. Solerwitz be suspended for two years but that A-~- 202 Fe a T= SD I, De A Sn, Tg LEIP Bete oe re a cn Tn, WE mabe nen Bac ae Sy ne en sera omy “eg _ a _ > , = ‘ 7 i o a. % ied oT = 5: - i 7 ms i ‘ 1. I a ‘i 7 ; to . j = ( § : 7 ’ b a , a fb y ! a, an os mt : - E a a ee ar as a, See Se eee. Pi the suspension itself be suspended and that Mr. Solerwitz be placed on probation for that period. Mr. Solerwitz refers tc the principle that it would be "wholly improper” for an appellate tribunal to “impose a harsher sentence than the one imposed by the trial court," and alleges that it also is "wholly improper for this Court to increase his punishment, a least without itself holding a hearing on that question." Mr. Solerwitz complains that "under the procedures established by this Court or the conduct of these proceedings, he has never had an opportunity to address the court on the subject of an appropriate penalty." The order to show cause, which initiated these proceedings, informed Mr. Solerwitz that he faced a possible suspension from practice before this court for two years. Judge A- 203 Bennett's recommendation was that Mr. Solerwitz be suspended for that period. We reduced that recommended suspension to one year. The fact that we disagreed with Judge Bennett's further recommendation that the Suspension itself be suspended cannot properly be viewed as an “increase" in Mr. Solerwitz's punishment. A suspension from practice for two years necessarily is a greater sanction than a suspension for one year. Mr. Solerwitz's purported analogy between what happened in this case and an impermissible increase by an appellate court of a trial court's sentence fails because the two situations are not comparable. Judge Bennett was not functioning as an independent trial court, but as a master acting for this court to conduct a hearing and make proposed A- 204 findings and recommendations. His decision was only a recommendation, which we were free to change or modify as we deemed appropriate. In his exceptions to Judge Bennett's recommended findings and decision, Mr. Solerwitz could have challenged the sanction, but failed to do so. He did not argue to us that a lesser sanction than Judge Bennett proposed would be appropriate, or that even if we upheld Judge Bennett's conclusion that Mr. Solerwitz had engaged in conduct unbecoming a member of our bar, any suspension should be stayed, as Judge Bennett had proposed. As Mr. Solerwitz must have Known, it was this court and not Judge Bennett that would determine the appropriate sanction. Not having addressed the sanction Judge Bennett proposed, Mr. Solerwitz cannot now be heard to A-205 complain because we reduced the suspension from two years to one, but declined to stay the effectiveness of the suspension. We have considered Mr. Solerwitz's arguments that the sanction proposed by Judge Bennett would be more appropriate and adequate. Those arguments, however, do not induce us to change our decision. The petition for consideration is denied. FOR THE COURT Francis X. Gindhart FRANCIS X. GINDHART Clerk FILED U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT JUL 20 1988 FRANCIS X. GINDHART CLERK July 20, 1988 Date A- 206 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0170%3A1. Public record. Not legal advice.