Amicus Curiae Brief — Curry v. NASCO, Inc

a Pies

Seaver

Supreme Gaur, WS

NO. 91-1021 FILED

—HAt9 1992

In the OFFICE OF THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1991

RICHARD A. CURRY,

Petitioner

Versus

NASCO, INC.,

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

AMICUS CURIAE BRIEF IN OPPOSITION

AUBREY B. HARWELL, JR. JOHN B. SCOFIELD

JON D. ROSS DAVID L. HOSKINS*

NEAL & HARWELL SCOFIELD, GERARD,

2000 One Nashville Place VERON, HOSKINS

150 4th Avenue North & SOILEAU

Nashville, TN 37219 P.O. Drawer 3028

(615) 244-1713 Lake Charles, LA 70602

(318) 433-9436

Attorneys for Amicus Curiae

*Counsel of Record

A B Letter Service. Inc. 327 Chartres St.. New Orleans, La. (504) 581-5555

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

RICHARD A. CURRY,

Petitioner

Versus

NASCO, INC.,

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MOTION FOR PERMISSION TO FILE

BRIEF AMICUS CURIAE IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

AUBREY B. HARWELL, JR. JOHN B. SCOFIELD

JON D. ROSS DAVID L. HOSKINS*

NEAL & HARWELL SCOFIELD, GERARD,

2000 One Nashville Place VERON, HOSKINS

150 4th Avenue North & SOILEAU

Nashville, TN 37219 P.O. Drawer 3028

(615) 244-1713 Lake Charles, LA 70602

(318) 433-9436

Attorneys for Amicus Curiae

*Counsel of Record

January 3, 1992

Come now the movants, David L. Hoskins of the law

firm of Scofield, Gerard, Veron, Hoskins & Soileau, and Jon

D. Ross of the law firm of Neal & Harwell, formerly counsel

for the respondent, NASCO, Inc. (NASCO), in this cause,

and as officers of this Court move the Court pursuant to

Sup. Ct. R. 37 for permission to file a brief amicus curiae

in opposition to the petition for writ of certiorari filed in

this cause by the petitioner, Richard A. Curry.

As grounds for this motion, the movants would

respectfully show to the Court the following:

1. The movants formerly represented NASCO in this

matter, and did so from the filing of suit until the present

stage of these proceedings. NASCO has now advised the

movants that NASCO does not wish to be further involved

in these proceedings, and has directed the movants not to

file a brief on behalf of NASCO in opposition to the pending

petition for writ of certiorari.

2. In its judgment of January 23, 1989, imposing

sanctions, including the six-month suspension from prac-

ticing before the Western District of Louisiana that is now

challenged on this petition, the district court directed that

‘‘fo]n appeal, NASCO’s counsel is to defend the entire judg-

ment of this Court, including sanctions other than at-

torney’s fees and expenses.’’ NASCO, Inc. v. Calcasieu

Television and Radio, Inc., 124 F.R.D. 120, 137 n.10 (W.D.

La. 1989), Pet. App. at A-40 n.10. By Order dated February

16, 1989, the district court reiterated that directive. On

June 25, 1990, the district court entered an Order in con-

junction with the proceedings on remand again directing

counsel for NASCO to act as counsel for the Court in con-

junction with the sanctions proceedings until such time as

the sanction rendered against the petitioner has been

resolved with finality. The movants have fulfilled the

district court’s directive to defend the sanction imposed

against the petitioner through the remand proceedings in

the district court and two appeals to the United States

Court of Appeals for the Fifth Circuit, and are ainiins to

do so before this Court.

3. The movants believe that, for the reasons set forth

in the amicus curiae brief attached hereto, the pending peti-

tion for writ of certiorari should be denied. The movants,

because of their long involvement in these proceedings, are

intimately familiar with the facts and the law applicable to

this case, and are uniquely situated to properly brief the

issuespresented to this Court by the pending petition. In

light of the stated intention of NASCO not to address the

pending petition for certiorari, this Court will not have the

benefit of any argument in opposition to the granting of

certiorari unless this motion is granted.

4. Undersigned counsel has contacted Robert G.

Pugh, counsel for the petitioner, Richard A. Curry, and has

obtained written consent on behalf of the petitioner to file

a brief amicus curiae in opposition to the pending petition.

NASCO, however, has not consented.

ACCORDINGLY, and because this Court should

have the benefit of a brief in opposition to the granting of

certiorari in its determination whether to grant the peti-

tion, the movants respectfully request that this motion be

granted, and that they be permitted to file the attached

brief amicus curiae.

Respectfully submitted,

AUBREY B. HARWELL, JR. JOHN B. SCOFIELD

JON D. ROSS DAVID L. HOSKINS*

NEAL & HARWELL SCOFIELD, GERARD,

2000 One Nashville Place VERON, HOSKINS

150 4th Avenue North & SOILEAU

Nashville, TN 37219 P.O. Drawer 3028

(615) 244-1713 Lake Charles, LA 70602

(318) 433-9436

BY:

DAVID L. HOSKINS

*Counsel of Record

Counsel for Amicus Curiae

i

QUESTIONS PRESENTED FOR REVIEW

Whether this case, in which the district court utiliz-

ed its well-established inherent power to suspend

from practicing before it an attorney who abused

the court’s processes, warrants review on certiorari

to ‘‘clarify’’ the relationship between Rule 11 and

the inherent power where (1) the sanctioned at-

torney failed to raise this issue in his original appeal

and subsequently withdrew it at oral argument on

his appeal after remand, and (2) the conduct for

which the attorney was suspended does not fall

wholly within the reach of Rule 11.

Whether this case, in which the sanctioned attorney

was afforded prior notice of his substandard con-

duct, two full evidentiary hearings, and two ap-

peals, warrants review on certiorari to ‘‘elucidate”’

the due process protections available to attorneys

faced with the possibility of an inherent power

sanction.

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW.......... i

eee Ce CC te yo vier eee vos yw ccand eee ii

py Be Mis ae ee er oa iii

COUNTERSTATEMENT OF THE CASE ........... l

A. ‘Tine Natbewe of Ge Game! ek i a so ees 1

ie ee Be re ore re 2

c. The Pees See . i 6 6-554 3

SUMMARY OF ARGUMENT ..................... 7

REASONS FOR DENYING THE WRIT ............ 8

A. Rule 11 and the Inherent Power .............. 9

1. Curry failed to preserve that question for

WO cl oe eee 9

2. The misconduct for which Curry was

sanctioned does not fall wholly within the

quilt of Te 31 C... os eee 10

B. Due Process and the Inherent Power ......... 12

1. Curry received fair notice of the conduct

for which he was sanctioned............. 13

2. Curry had ample opportunity to be heard

in. bis Cn GS... 5 ee 15

DONCLUGION nec See es ee 19

iii

TABLE OF AUTHORITIES

CASES Page

Brooks v. United States, 757 F.2d 734

See ee I os oa pv eee ecu nea eoneee, 10,18

Browning-Ferris Industries of Vermont, Inc. v.

Kelco Disposal, Inc, 492 U.S. 257, 109 S. Ct. 2909,

= 106 L. Ed. 2d 219 (1989)........................ 10

Chambers v. NASCO, Inc., 501 U.S. ___, 111 S. Ct.

yib > RS) Pe Bs | 2,11

Eli Lilly and Co. v. Home Ins. Co., 794 F.2d 710

eee I si a ot es ee eee ee 9

Ex parte Burr, 9 Wheat 529, 6 L. Ed. 152 (1824) ..... 19

Ex parte Garland, 4 Wall 333, 18 L. Ed. 366 (1867)... .19

In re Snyder, 472 U.S. 634, 105 S. Ct. 2874, 86 L.

Se ee 6 oe ee oer eens 11,15,19

NLRB v. Pittsburgh S.S. Co., 340 U.S. 498, _~_ S.

a Ul! er eee 12

Northwestern Indiana Telephone Co., Inc. v. FCC,

Oem WO Ge Ge. Gi. FO ie ee ee he ete 9

United States v. Camou, 184 U.S. 572, 22S. Ct. 505,

ae as ee ee ee eg ee oe ee 18

iv

TABLE OF AUTHORITIES (continued)

CASES Page

United States v. FialloJJacome, 874 F.2d 1479 (11th

Cy ee ahs erent ee ee en NTR 9

United States v. Richards, 646 F.2d 962 (5th Cir.

ee er neo ce ee ere ater ate 6 ae es 9

Walnut Properties, Inc. v. City of Whittier, 861 F.2d

ES lac ok bee ees eRe Re ae 9

STATUTES

RAS} Reta apie aie rare ere cre Perek 8

aS igen ee oi oi ach a nD ey meets 8

RULES

Louisiana Code of Professional Responsibility:

i Se ft ea yy peo eers 11

ee Ne eee ak 11

ere Sik arte Oe, Oe a ee 11

EE VCS nit HART te On aes ee ote. 11

er I ee ee ee 11

= 0 an) 7! be See Ok ee 11

en oh ga Ber cot ye gece h'as o wiacae a ohare won eT ecaes 11

1

COUNTERSTATEMENT OF THE CASE

Richard A. Curry petitions this Court for a writ of

certiorari to the United States Court of Appeals for the

Fifth Circuit. He seeks to overturn that court’s affirmance

of his six-month suspension from the rolls of the Western

District of Louisiana. The respondent herein, NASCO, Inc.

(NASCO), has no desire to involve itself in this proceeding.

This brief in opposition is respectfully submitted by

NASCO’s former counsel as Amicus Curiae.

A. The Nature of the Case

The challenged sanction arose out of a diversity ac-

tion to enforce a contract for the sale of a television station

in Lake Charles, Louisiana. NASCO was the buyer. The

sellers were Calcasieu Television and Radio, Inc. (CTR) and

G. Russell Chambers, CTR’s sole shareholder and director.

When Chambers caused CTR to breach the contract,

NASCO sued to enforce it.

Despite the absence of any colorable basis in fact or

in law, Chambers, his codefendant, Mabel Christine Baker,

and their attorneys, A.J. Gray III, Edwin A. McCabe, and

Richard A. Curry, aggressively resisted NASCO’s suit

with a campaign of fraudulent, dilatory, and abusive con-

duct designed to thwart the rendering of meaningful relief

by the district court. That campaign began with a

deliberate act of fraud on the day Chambers received notice

of the impending suit, and continued unabated for nearly

three full years. NASCO prevailed, but only at great cost.

Ultimately, the district court imposed sanctions

against the defendants and their attorneys, including the

2

six-month suspension at issue in this petition.! Those sanc-

tions were affirmed on appeal. This Court granted cer-

tiorari with respect to the monetary sanction imposed

against Chambers, and affirmed it. Curry now asks this

Court to review Ais sanction on certiorari, and to overturn

it.

B. The Factual Context

The context from which the challenged sanction

arises is described in varying degrees of detail in four

reported decisions: (1) the district court’s original decision

on the merits, NASCO, Inc. v. Calcasieu Television and

Radio, Inc., 623 F. Supp. 1372 (W.D. La. 1985) [VASCO J);

(2) the district court’s original sanctions opinion, NASCO,

Inc. v. Calcasieu Television and Radio, Inc., 124 F.R.D 120

(W.D. La. 1989), Pet. App. A-1 [VASCO II); (3) the Fifth

Circuit’s opinion on the initial appeals from the sanctions

judgment, NASCO, Inc. v. Calcasieu Television and Radio,

Inc., 894 F.2d 696 (5th Cir. 1990), Pet. App. A-64 [VASCO

III); and (4) this Court’s opinion affirming the sanctions

judgment as to Chambers, Chambers v. NASCO, Inc., 501

U.S. _, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991), Pet.

App. A-111 [VASCO IV].

Amicus adopts the factual findings set forth in those

decisions as its counterstatement of the factual context of

this case.

1 Monetary sanctions were imposed against Chambers. Baker was

reprimanded. Gray was disbarred from the Western District and pro-

hibited from applying for readmission for three years. McCabe was

severely reprimanded and declared ineligible to practice in the Western

District for five years. The sixth respondent, Gray's cocounsel, Gary L.

Boland, was not sanctioned.

3 :

C. The Proceedings Below

The Fifth Circuit affirmed the district court’s merits

judgment in a per curiam ruling from the bench at oral

argument. That court rejected the Public Records Doctrine

arguments urged by the appellants as “‘singularly uncon-

vincing”’ and “‘disingenuous,”’ and held that their appeals

were ‘‘manipulative,’’ ‘‘completely frivolous,’’ and

‘brought for the sole purpose of delay.” NASCO, Inc. v.

Calcasieu Television and Radio, Inc., No. 86-4003 (5th Cir.

Aug. 27, 1986) (per curiam) (unpublished opinion affirming

judgment on the merits). Accordingly, that court imposed

sanctions against Chambers, CTR, and Baker pursuant to

Fed. R. App. P. 38, and remanded the matter to the district

court with instructions to fix the amount of the appellate

sanctions, and to determine whether further sanctions

should be imposed against the defendants and/or their

counsel for the manner in which the case was conducted in

the district court. Jd.

On April 11, 1988, the district court held an eviden-

tiary hearing on the sanctions issue. All parties, including

Curry, submitted briefs and participated in that hearing to

the extent they deemed appropriate.

In December 1988, the district court issued a Minute

Entry noting that the range of sanctions under considera-

tion included the possible suspension or disbarment of

culpable counsel, and invited additional memoranda on

that issue. All parties, except McCabe, submitted briefs.

On January 23, 1989, the district court rendered

judgment imposing sanctions, including Curry’s six-month

suspension. NASCO IJ, 124 F.R.D. 120, Pet App. A-1.

Amicus takes exception to Curry’s assertion that

4

‘“[t]he sanctioned activity consisted only of pleadings filed

by Curry. ...’ Petition, p.3. That is simply not the case.

Curry was sanctioned for his participation in ‘‘an illegal

and fraudulent scheme and conspiracy . . . designed to place

the operating properties of CTR beyond the reach and

jurisdiction of [the district] Court through the medium of

the Louisiana Public Records Doctrine and to deprive

NASCO of its rights to specific performance. . . ,’” NASCO

IT, 124 F.R.D. at 125, Pet. App. at A-11, and in a subse-

quent “‘campaign of harassment, oppression, and delay,’

124 F.R.D. at 144, Pet. App. at A-58, which the district

court called ‘‘as classic an example of vicious, deliberate,

deceitful, fraudulent and sanctionable conduct as the

Courts can produce,” 124 F.R.D. at 142, Pet. App. at A-53.

The district court found that both Curry and his

client, Baker, had played their roles in this ‘‘modern

counterpart”’ of ‘‘trial by ordeal.’’ Jd.

Baker, “‘in all her acts, was under the complete con-

trol of Chambers.’’ NASCO I, 623 F. Supp. at 1380. She

“exhibited no discretion of her own,’ she showed ‘‘no

fiduciary responsibility in her acts as trustee,’’ she simply

performed ‘‘any act or acts directed by Chambers without

question and without consideration of why.”’ Jd. at 1381.

She was “indispensable to the success of the conspiracy

and the Public Records Doctrine defense in particular. She

was the unfailing tool of [Chambers] and performed his

every request without inquiry or question.’’ NASCO II,

124 F.R.D. at 132-33, Pet. App. at A-29.

Curry, too, ‘“‘was vital to the fraudulent Public

Records Doctrine defense, and valuable to the harassment

tactics of Gray and Chambers.”’ 124 F.R.D. at 133, Pet.

App. at A-30. He became “intimately familiar with [the in-

itial fraud upon the court] through instruction, the record

5

and depositions,’’ yet nevertheless ‘‘brazenly and

deliberately urged upon [the] Court as uncontroverted fact,

the attempted simulated and fraudulent sale to the Trustee

Baker which [he] knew was fraudulent and was attempted

for the sole purpose of depriving NASCO of its rights to

specific performance.” 124 F.R.D. at 128, Pet. App. at

A-17. Hired by Gray ‘“‘to assist and defend the Public

Records Doctrine defense,”’ 124 F.R.D. at 133, Pet. App. at

A-29-30, Curry’s ‘‘sole responsibility was to assure that

[Baker] remained the unfailing tool of her brother.’’ Jd.,

Pet. App. at A-30.

It was for his role in embracing that fraudulent

defense and in participating in the campaign of harassment

and oppression that Curry was suspended.

Following the rendition of judgment, Curry moved

for reconsideration by the active judges of the Western

District sitting en banc. When that request was denied,

Curry appealed.

The Fifth Circuit affirmed. NASCO III, 894 F.2d

696, Pet. App. A-64. The court rejected Curry’s due process

arguments, concluding that he ‘’had adequate notice of the

charges and [was] allowed to present a defense to each one

of them at the hearing.’’ 894 F.2d at 707, Pet. App. at A-87.

The court further concluded that the sanction was sup-

ported by express findings of bad faith and improper

motivation amply supported by ‘‘clear and convincing

evidence.” 894 F.2d at 708, Pet. App. at A-89. ‘‘There is,”’

the court said, ‘‘no dispute that the appellants [including

Curry] did everything the district court said they did.”’ /d.

On Curry’s petition for panel rehearing, however, the

Fifth Circuit remanded the matter for reconsideration.

Noting Curry’s protestations that his conduct was not

6

sanctionable, that he did no more than sign a minimal

number of pleadings, and that he did not have an adequate

opportunity to defend himself at the initial hearing, the

Fifth Circuit instructed the district court on remand to

“allow Curry to offer any relevant argument and evidence

he may have,” and to then ‘reinstate, supplement, or

change its present findings and any ordered sanctions as it

finds appropriate.’’ Pet. App. at A-93. In so doing, the ap-

pellate court found no error of fact or law, found no abuse

of discretion, and did not reverse or vacate the original

judgment. It merely gave Curry a second bite at the eviden-

tiary apple: ‘‘We do not hold that the imposed sanction was

an inappropriate response to the district court’s perception

of Curry’s role. Curry seeks a further opportunity to dispel

that perception. We do no more than allow him to do so,

perhaps out of an excess of caution.”’ Jd.

The district court then held an evidentiary hearing

on July 6, 1990. At that hearing, the court permitted Curry

to adduce such evidence as he saw fit. That evidence,

however, was neither ‘“‘uncontradicted’”’ nor ‘‘uncontested,”’

as he would suggest. Petition, p.6. To the contrary, Curry’s

evidence did not differ in substance from the evidence he

adduced at the original hearing, and it was very much con-

tradicted by the record, by the conduct of the defendants

and their counsel throughout the course of the litigation,

and by the logically inevitable inferences to be drawn

therefrom.

On August 18, 1990, the district court reinstated its

original findings and conclusions, and confirmed the sanc-

tion originally imposed, noting that it had ‘‘considereu the

arguments and evidence produced by Curry,’’ but had

found ‘‘nothing in the documentary evidence or in the

testimony of witnesses Curry and Fornias or in the closing

argument at the July 6, 1990 hearing which would have

7

even a slight effect’’ on its original findings. Pet. App. at

A-100.

After a second attempt to secure en banc review or

reconsideration by the active judges of the Western

District, Curry again appealed.

Again, the Fifth Circuit affirmed. Pet. App. A-164.

The appellate court concluded that the district court did

not misinterpret its instructions on remand, Pet. App. at

A-169-70, and rejected the reiteration of Curry’s argument

that his sanction was unsupported by evidence, Pet. App.

at A-170-71. Declining to review and reevaluate the prior

panel’s holding that the district court’s original findings

were supported by clear and convincing evidence, and

noting the limited nature of the remand, the appellate court

found no abuse of discretion, and no error, in the district

court’s reinstatement of the sanction. Pet. App. at A-171.

Finally, the appellate court rejected Curry’s contention

that the district court’s reference to the Louisiana Rules of

Professional Conduct was improper, erroneous, or violative

of due process. Pet. App. at A-171 n.4.

Curry now seeks certiorari in an attempt to overturn

the sanction imposed against him.

SUMMARY OF ARGUMENT

The petition for certiorari should be denied.

This case presents no necessity for ‘‘clarification”’ of

the relationship between Rule 11 and the inherent power.

Curry failed to raise this issue in his original brief on appeal

from the initial sanctions judgment. He withdrew it at oral

argument on his appeal after remand. He has thus failed to

preserve it for review. Beyond that, his argument that such

8

a clarification is necessary is based on a fundamental

misapprehension of the proceedings below. He was not

sanctioned for a mere violation of the certification re-

quirements of Rule 11. He was sanctioned for knowingly

embracing and participating in an abusive defense strategy

predicated in fraud and designed to thwart the judicial

resolution of NASCO’s claims.

This case presents no occasion for ‘‘elucidation”’ of

the due process protections available to an attorney facing

the possibility of inherent power sanctions. In truth, Curry

seeks no such “‘elucidation.’’ He argues only that he did not

receive the process due him at the hands of the lower

courts: Fair notice, and an opportunity to be heard. That

argument is predicated upon a mischaracterization of the

proceedings below. Curry received due process. He had fair

notice of the substandard conduct for which he was

ultimately sanctioned, and he had two full evidentiary

hearings and two appeals at which to present his defense.

Due process requires no more.

REASONS FOR DENYING THE WRIT

This case presents no ‘‘special and important

reasons” warranting review on writ of certiorari. Sup. Ct.

R. 10.1.

Curry argues that this Court should grant certiorari

(1) in order to ‘‘clarify’’ the relationship between the in-

herent power and Fed. R. Civ. P. 11, and (2) in order to

‘“‘elucidate’’ the due process protections available to at-

torneys facing the possibility of an inherent power

sanction.

Neither of those questions should be decided by this

Court. The first was not preserved for review, and in any

9

event is not presented by this case. The second is based on

a mischaracterization of the proceedings below, and

amounts to little more than a complaint of evidentiary er-

rors by the lower courts.

A. Rule 11 and the Inherent Power

Curry first suggests that certiorari should be

granted because this case ‘‘squarely presents”’ a question

pretermitted both by the Fifth Circuit in affirming the

original sanctions judgment, and by this Court in affirming

that judgment as to Chambers: Namely, whether a federal

district court may invoke its inherent power to sanction

conduct that falls wholly within the ambit of Rule 11.

But that question is not ‘‘squarely presented”’ by

this case.

1. Curry failed to preserve that question for review.

To begin with, Curry has failed to preserve that ques-

tion for review.

He did not raise it in his original brief on appeal from

the district court’s sanctions judgment.? He could have

done so, for that argument in no way derived from the pro-

ceedings on remand. His failure to do so foreclosed his rais-

ing it on the appeal after remand. E.g., United States v.

FialloJJacome, 874 F.2d 1479, 1481-82 (11th Cir. 1989);

Northwestern Indiana Telephone Co., Inc. v. FCC, 872 F.2d

465, 470 (D.C. Cir. 1989); Walnut Properties, Inc. v. City of

Whittier, 861 F.2d 1102, 1106 (9th Cir. 1988); Eli Lilly and

Curry first raised that issue in his petition for rehearing on the original

appeal—even then too late. United States v. Richards, 646 F.2d 962, 963

(5th Cir. 1981).

10

Co. v. Home Ins. Co., 794 F.2d 710, 716-17 (D.C. Cir. 1986);

Brooks v. United States, 757 F.2d 734, 739 (5th Cir. 1985).

Beyond that, Curry expressly withdrew and waived

that issue at oral argument on his appeal after remand.?

Pet. App. at A-168 n.2. As a result, it was not orally argued

by either side, and was not decided by the lower appellate

court.

Having not been raised and considered in the ap-

pellate court below, that issue should not be considered by

this Court on certiorari. See Browning-Ferris Industries of

Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 277,

109 S. Ct. 2909, ___, 106 L. Ed. 2d 219, 239 (1989).

2. The misconduct for which Curry was sanctioned does

not fall wholly within the ambit of Rule 11.

Curry’s suggestion that this case necessitates a

clarification of the relationship between Rule 11 and the in-

herent power is based on a fundamental misapprehension

of the proceedings below: That he was sanctioned for

misconduct falling wholly within the reach of Rule 11.

He was not.

Curry was not sanctioned for merely failing to con-

duct the reasonable inquiry required by Rule 11, or for

some other violation of the Rule’s certification require-

ment. He was sanctioned for knowingly embracing and

3 Curry suggests that the Fifth Circuit ‘“‘overstated’’ his concession in

withdrawing this issue at oral argument below. Petition, pp. 14-15. That

is simply incorrect. Curry did exactly what the Fifth Circuit says he did.

He withdrew his argument that the district court was required to utilize

Rule 11, and not the inherent power, to sanction Curry, and that issue

was not addressed further by either side.

1]

participating in a systematically abusive defense strategy

predicated in fraud and designed to thwart the judicial

resolution of NASCO’s claims. NASCO IJ, 124 F.R.D. at

125, Pet. App. at A-11.

That conduct was ‘‘contrary to professional stand-

ards,”’ and ‘‘inimical to the administration of justice.’’ In re

Snyder, 472 U.S. 634, 635, 105 S. Ct. 2874, ___, 86 L. Ed.

2d 504, 513 (1985). It flouted those duties that lie at the

very core of the privilege of practicing law—the duty of in-

tegrity and honest dealing with the court, the duty to

litigate in good faith, the duty to yield to the orderly pro-

cesses of justice. See Louisiana State Bar Association Code

of Professional Responsibility, D.R. 10-101(A)(4), D.R.

7-102(A)(3),_ (A)(5), (B); id, D.R. 1-102(A)(5), D.R.

7-102(A)(1), (A)(2); id., 1-102(A)(5), (A)(6).

That at some points along the continuum of his in-

volvement his conduct may have also violated Rule 11’s

certification requirements can in no way diminish the in-

herent power of the court which admitted him to suspend

him from practicing before it. NASCO IV, 501 U.S. at :

111 S. Ct. at ___, 115 L. Ed. 2d at 47-49, Pet. App. at

A-129-32. The district court, in its informed discretion, ex-

pressly concluded that Rule 11 was not up to the task at

hand. NASCO II, 124 F.R.D. at 138-39, Pet. App. at

A-42-44. Like the misconduct of Chambers, ‘‘much of the

bad-faith conduct [by Curry]... was beyond the reach of

the rules’; the ‘‘course of [that] conduct . . . evidenced bad

faith and an attempt to perpetrate a fraud on the court’”’;

and the conduct arguably sanctionable under Rule 11 was

‘intertwined with conduct only the inherent power could

address.’’ NASCO IV, 501 U.S. at Sis ae Se

115 L. Ed. 2d at 49, Pet. App. at A-131.

Jn sum, Curry’s misconduct at most intersects the

12

perimeter of Rule 11 tangentially. It certainly does not fall

wholly within the reach of the Rule, and most certainly

does not present, squarely or otherwise, the question Curry

would urge this Court to resolve.

B. Due Process and the Inherent Power

Curry next suggests that certiorari should be

granted because it is necessary for the Court to ‘‘elucidate”’

the due process protections available to litigants and

lawyers who face the possibility of inherent power

sanctions.

But this case presents no ‘‘special and important

reasons’ for undertaking such an ‘‘elucidation’’—and

Curry offers none. Indeed, the only ‘‘elucidation’’ Curry

urges is that due process requires fair notice and an oppor-

tunity to be heard before the sanction of suspension can be

imposed. Hardly a novel proposition.

In truth, Curry does not ask this Court to

‘elucidate’ anything. He asks only that the Court deter-

mine whether he received the process due him at the hands

of the courts below.

That question—a matter of interest only to Curry—is

not the stuff of certiorari. See NLRB v. Pittsburgh S.S. Co.,

340 U.S. 498, 502,__ S.Ct. __, 95 L. Ed. 479, 482 (1951)

(certiorari is granted only in cases involving principles the

settlement of which is of importance to the public, as

distinguished from the parties, and in cases where there is

real and embarrassing conflict of opinion and authority be-

tween circuit courts of appeal).

Be that as it may, it is clear that Curry was afforded

all the process due him in these proceedings.

13

1. Curry received fair notice of the conduct for which he

was sanctioned.

Curry complains he did not receive fair notice of the

contract for which he was ultimately sanctioned. That is

simply not true.

Curry was served with a fourteen page sanctions mo-

tion, supported by a thirty-six page memorandum of

authorities. Some seven pages of the motion, and some fif-

teen pages of the memorandum, were devoted to setting

forth the factual basis for the sanctions sought against the

respondents, including Curry. Curry was served with a six-

teen page memorandum in opposition to his motion to

strike the claims for sanctions against him. Seven pages of

that opposition were devoted te detailing his misconduct.

Curry was served with the district court’s Minute Entry of

December 12, 1988, setting forth the specific legal basis for

the sanctions under consideration, notifying all parties

that the court was considering disciplinary sanctions (in-

cluding disbarment) against counsel, and soliciting addi-

tional memoranda on that issue. The sanctionable conduct

occurred in the very litigation in which sanctions were

sought, and the proceedings were based ia large measure

upon the existing record. Curry had full knowledge of that

record. NASCO IJ, 124 F.R.D. at 141 n.11, Pet. App. at

A-49 n.11. The district court issued a twenty-five page

published opinion setting forth the factual and legal bases

for the sanctions imposed—including the sanction against

Curry. On appeal, Curry was treated to yet another, albeit

more truncated, recitation of the legal and factual bases for

the sanction imposed. That was notice.

Curry took that cumulative notice with him to the

hearing on remand in the district court. And, as the district

court observed, that hearing, preceded by that notice, must

at the very least have “‘laid to rest the issue of due pro-

cess.’’ Pet. App. at A-97. Certainly, it must lay to rest

14

Curry’s suggestion that ‘“‘[nJo Court has afforded [him] a

written statement of how the specific acts by Curry... was

[sic] sanctionable or merited suspension from practice.’

Petition, p.24.

Curry would nevertheless suggest that the district

court’s reference to violations of Louisiana’s Rules of Pro-

fessional Conduct—without prior notice that ethical viola-

tions were at issue—was itself a violation of due process.

That suggestion is frivolous.

Courts suspending attorneys have generally done so

in response to conduct that is “contrary to professional

standards”’ or ‘“‘inimical to the administration of justice,”’

as described in the ‘‘case law, applicable court rules, and

‘the lore of the profession,’ as embodied in codes of profes-

sional conduct.”’ In re Snyder, 472 U.S. 634, 645, 105 S. Ct.

2874, __, 86 L. Ed. 2d 504, 513 (1985). The rules cited by

the district court do embody ‘‘the lore of the profession”’ in-

sofar as acceptable professional conduct is concerned, and

do reflect the standards of professional conduct that were

applicable at the time of Curry’s representation of Baker.

Simply put, Curry’s conduct fell far short of those ac-

cepted standards of conduct which embody the dual obliga-

tions to his client and to the judicial system that are in-

herent in his role as an officer of the court. See In re Snyder,

supra, 472 U.S. at 644-45, 105 S. Ct. at ___, 86 L. Ed. 2d

at 512-13. In citing the Rules of Professional Conduct, the

district court did nothing more than point that out.

There is nothing talismanic in that citation. It was

not the citation to those rules that formed the basis for the

sanction imposed against Curry. It was his conduct—

15

conduct that was professionally substandard, and inimical

to the administration of justice, by any measure.

In sum, given the remand in fact granted by the

Fifth Circuit, Curry cannot now be heard to complain that

he had inadequate notice of either his conduct or the poten-

tial sanctions that he faced. Certainly, he cannot suggest

he had no notice that this conduct was substandard—

particularly in light of the district court’s extremely blunt

language in its original sanctions opinion. E.g., NASCO I],

124 F.R.D. at 143, Pet. App. at A-54 (‘‘The attorneys who

engineered this mockery are a disgrace to the profession.’’).

Curry had notice. He knew suspension was at stake.

He knew what conduct was at issue. He knew that conduct

had been found substandard by the district court. And he

had ample opportunity to utilize that knowledge in

preparation for two full evidentiary hearings.

2. Curry had ample opportunity to be heard in his own

defense.

Curry complains that he did not have an adequate

opportunity to be heard, either in the district court or in the

appellate court below.

This amazing assertion comes after two full evident-

iary hearings in the district court, and two appeals.

Curry contends that the remand hearing was defec-

tive because the district court mistakenly believed the

sanction was already final and therefore did not really con-

sider the evidence adduced. The appeal after remand was

defective, he says, because the appellate court improperly

declined to look behind the prior panel’s affirmance of the

district court’s original factual findings, and failed to find

16

an abuse of discretion in the face of the district court’s ‘‘er-

roneous view of the law’’ and ‘“‘clearly erroneous assess-

ment of the evidence.”’

Curry received a full evidentiary hearing in the

district court on NASCO’s initial sanctions motion. Follow-

ing that hearing, the district court made detailed findings

of fact as to Curry’s misconduct, and on that basis imposed

the sanction here challenged. The district court imposed

that sanction ‘‘only after serious consideration based on

unimpeachable and weighty evidence and a definite convic-

tion that [the sanction was] necessary and appropriate

under the circumstances in which the sanctioned acts were

performed.’’ NASCO II, 124 F.R.D. at 142, Pet. App. at

A-52. The district court’s factual findings were affirmed by

the lower appellate court on the basis of ‘“‘clear and convinc-

ing evidence.’’ NASCO III, 894 F.2d at 708, Pet. App. at

A-89.

Any question of the adequacy of that initial hearing

and appeal for due process purposes is doubtless mooted by

the appellate court’s subsequent remand for reconsidera-

tion after a second evidentiary hearing.

In its remand, the appellate court directed the

district court to ‘allow Curry to offer any relevant argu-

ment and evidence he may have,” and thereafter to

“reinstate, supplement or change’ the original findings

and sanction ‘‘as it finds appropriate.’’ Pet. App. at A-93.

‘‘We do not hold,’ the appellate court was at pains to

stress, ‘“‘that the imposed sanction was an inappropriate

response to the district court’s perception of Curry’s role.

Curry seeks a further opportunity to dispel that percep-

tion. We do no more than allow him to do so, perhaps out

of an excess of caution.” /d.

17

On remand, the district court did exactly what it was

instructed to do. It scheduled a hearing. It accepted briefs

from Curry urging that the sanction be vacated. It admit-

ted, without limitation, all the evidence Curry offered. It

permitted Curry’s counsel to argue orally that the sanction

should be vacated. It then took the matter under advise-

ment, ‘“‘considered the arguments and evidence’’ adduced

by Curry, reconsidered its findings and the sanction im-

posed, and decided to let both stand. Pet. App. at A-100.

The district court did not, as Curry suggests, refuse

to consider the evidence he adduced. It simply ruled

against him. The evidence he adduced on remand did not

differ significantly in substance from the evidence he of-

fered at the original sanctions hearing. For the most part,

it consisted of self-serving testimony and affidavits from

the very coconspirators whose bad faith conduct had pro-

voked sanctions in the first place. Those witnesses were no

more credible, and their evidence was no more persuasive,

on remand than at the original hearing. And the district

court gave that evidence precisely the weight it deserved.

The district court's remarks about the ‘‘finality’’ of

the sanction at the beginning of the remand hearing were

nothing more than an absolutely accurate statement that

the appellate court had found no error of law or fact, and

had not reversed or vacated the original sanctions

judgment—it had merely given Curry a second ‘‘opportuni-

ty to dispel” the district court's perception of his role in the

bad faith defense of the underlying lawsuit. Pet. App. at

\-93. Indeed, the original sanction, and the findings on

t +

which it was based, were expressly affirmed. The district

18

propriety of the court’s initial use of its inherent power. A

point which Curry’s counsel readily conceded:

MR. PUGH: Yes, Your Honor, I am aware

of the fact. Of course, you did [impose] the sanc-

tions and that they were affirmed by the Ap-

pellate Court. What we would like to do with the

Court’s permission is review what Mr. Curry did

in the hopes that the Court might reconsider what

it did and if possible recall the sanctions as

against Mr. Curry.

Transcript of Remand Hearing, p.5.

On appeal, the Fifth Circuit reviewed the evidence

adduced on remand and rejected Curry’s argument that

‘‘the record does not support the. . . findings made in the

... Original sanctions opinion.”’ Pet. App. at A-170. Noting

the prior panel’s conclusion that those findings were sup-

ported by clear and convincing evidence, and the limited

nature of the remand, the appellate court declined ‘‘to

review or re-evaluate”’ the prior panel’s opinion, and found

no abuse of discretion by the district court based on its

review of the remand record. Pet. App. at A-i71.

The appellate court was correct in that action. See,

e.g., Brooks v. United States, 757 F.2d 734, 739 (5th Cir.

1985) (second appeal generally brings up for revision

nothing but proceedings subsequent to mandate following

prior appeal); compare United States v. Camou, 184 U.S.

572,574, 22 S. Ct. 505, 506, 46 L. Ed. 694, 695-96 (1902) (se-

cond writ of error brings up for revision only proceedings

subsequent to initial mandate).

In sum, Curry had a fair hearing. He had two fair

hearings. And two fair appeals.

19

His contentions that he did not receive due process

are meritless.

CONCLUSION

This case does not warrant review on certiorari.

The district court’s inherent power to regulate and

control attorney conduct, and to suspend an attorney for

deliberate abuses of the judicial process derives from the

attorney's role as an officer of the court which granted him

admission. That power is well established, and is of ancient

origin. In re Snyder, 472 U.S. 634, 643, 105 S. Ct. 2874,

___, 86 L. Ed. 2d 504, 512 (1985); see Ex parte Garland, 4

Wall 333, 378-79, 18 L. Ed. 366, 370 (1867); Ex parte Burr,

9 Wheat 529, 531, 6 L. Ed. 152 (1824).

That power was properly exercised in this case. The

petition for writ of certiorari should be denied.

Respectfully submitted,

~

AUBREY B. HARWELL, JR. JOHN B. SCOFIELD

JON D. ROSS DAVID L. HOSKINS*

NEAL & HARWELL SCOFIELD, GERARD,

2000 One Nashville Place VERON, HOSKINS

150 4th Avenue North & SOILEAU

Nashville, TN 37219 - P.O. Drawer 3028

(615) 244-1713 Lake Charles, LA 70602

(318) 433-9436

BY:

DAVID L. HOSKINS

*Counsel of Record

20

CERTIFICATE OF SERVICE

I, David L. Hoskins, a member of the Bar of this

Court, hereby certify that I received a copy of the Petition

For Writ of Certiorari on December 13, 1991, and that

three copies of the Amicus brief in opposition to the peti-

tion for writ certiorari were mailed, first class postage

prepaid, to Mr. Michael H. Rubin, Rubin, Curry, Colvin &

Joseph, Ninth Floor, One American Place, Baton Rouge,

Louisiana 70825, and Mr. Robert G. Pugh, Pugh, Pugh &

Pugh, Commercial National Tower, 333 Texas Street, Suite

2100, Shreveport, Louisiana 71101-5302, counsel for the

petitioner, and to Mr. Dennis Meaker, General Counsel,

NASCO, Inc., 27 North Main Street, Springfield, TN

37172.

I further certify that all parties required to be served

have been served.

DAVID L. HOSKINS

SCOFIELD, GERARD, VERON,

HOSKINS & SOILEAU

P.O. DRAWER 3028

Lake Charles, LA 70602

(318) 433-9436

Attorneys for Amicus Curiae