Submitted by Ragsdale2010 (not verified) on Fri, 2008/03/07 - 9:33am.
Judge Collier is a lifelong Democrat, a Clinton appointee and Moncier and Harwell are pillars in Democratic politics in Knox County, albeit somewhat quieter now than they have been over years. Interesting to see how the Democrats look to eat their own in these legal circles, what is the world coming to?
"a little-known rule drafted by local federal judges"
Huh? Both the notion of judges drafting rules and "local federal" sound oxymoronic to me.
Rags2010, I heard Moncier speak to a group of Democrats once, and he said he was a Republican. He has voted in more Republican primaries than Dem. Likewise, Harwell votes more often as a Republican, even in Presidential primaries. Also, Collier's appointment happened just as Republicans took control of the Senate in 1994, and Fred Thompson and Bill Frist both sponsored his nomination. Even if interpreting this in a partisan light weren't stupid, you still got it wrong.
Submitted by Anonymous (not verified) on Fri, 2008/03/07 - 5:45pm.
The article does not reference whether Moncier actually opposed keeping the hearing secret. I don't think that disciplinary matters with the Board of Professional Responsibility are open to the public, and it may be that Collier is following that example, and that Moncier did not object. If he did object, it should be in the file, and if he had a problem with the secrecy, he would have objected, I would think.
The Local Rules are usually proposed with notice to the bar, who has an opportunity to comment, and I wonder whether this was done and whether Moncier opposed the rule change.
So these are rules of conduct in the courts, not general laws? I don't understand why such a hearing is in front of a judge and not the bar or some professional board.
Submitted by Johnny Ringo on Fri, 2008/03/07 - 11:03pm.
Judges have common-law powers to enact rules for the conduct of their courts. The Code of Professional Conduct that governs attorney ethical behavior was not enacted by the legislature - it's a Rule enacted by the Tennessee Supreme Court. The Supreme Court has enected a plethora of such rules, which cover everything from admission to the bar to the appointment of Guardians ad Litem in juvenile justice cases. There are also local rules that govern the ways matters are handles in the Knox County Circuit, Chancery and criminal courts. Those rules are formulated by the local judges (under rules established by the Supreme Court) and can vary quite widely from court to court. The way divorces are handled in Fourth Circuit Court, for instance, are very different from the way they are handled in the Chancery Courts.
The federal courts similarly have the power to enact rules for practice in their courts, and the document I linked above is the result of that rulemaking power. Every lawyer who practices in a court is expected to know and comport themselves with those local rules. There's nothing really all that mysterious about this, or at least not to practicing attornies.
As to why hearings like the one at issue are sealed, that's a question best left to the federal court judges. I do know that until recently all matters before the Tennessee Board of Professional Responsibility - the ethics board for lawyers - were secret as well. I suspect that this was mainly for the protection of attornies, who don't want to have their reputations sullied by frivolous charges filed by angry clients (or opponents). The results of BPR investigations were always made public - just not the processes that led to those results.
I guess finally to answer Rikki's question about why the hearing was in front of a judge and not in front of a professional board, the answer I think is that practice in the federal courts is considered to be a privelege, not a right. Gradualtion from law school and passage of the bar does not entitle you to practice in the federal courts - you have to ask for permission, and have that permission granted by the local presiding federal judge. Go to most trial attornies' offices and you will see separate documents on the wall granting permission from the state supreme court to practice in the state courts and from the federal courts granting permission to practice in the federal courts. In fact, practicing in all of the federal courts requires THREE applications and permissions - one from the district courts, one from the Court of Appeals, and finally permission from the U.S. Supreme Court if one wishes to practice there. Such permission is generally granted pro forma, but it can be taken away. The Eastern District of Tennessee federal courts have apparently arrogated to themselves the power to revoke that permission, and per the local rules established a procedure for doing so.
I do know of one local lawyer who was once banned for a year from practice in the Eastern District federal courts for allegedly violating a court order not to participate in abortion clinic protests. Courts have wide latitude to set the standards of behavior they expect from attornies that practice before them, and that authority sometimes gets exercised.
Submitted by S Carpenter on Sat, 2008/03/08 - 2:05pm.
JR says: "There's nothing really all that mysterious about this, or at least not to practicing attornies."
Moncier was told not to speak. He then asked if he could speak to his client. Moncier wanted to speak to his client before the client had to respond to a question from the judge in open court.
The basis for the discipline was Moncier's violation of the court order not to speak further but his motivation was to zealously represent his client. The advocate's instinct to counsel the client and protect the right against self incrimination is bedrock to the principles of the 5th and 6th Amendment.
Moncier didn't willfully deceive, lack candor or perpetuate a fraud. If his conduct had been such, we wouldn't be having this discussion.
Which is why I am shaken that you believe that a practicing attorney should accept the court's attempt to bar a criminal defense attorney under these circumstances.
I understand that Moncier prevailed in lifting the secret and confidential nature of the proceedings at a hearing on Wednesday. Prior to that ruling he was unable to subpoena or speak to anyone other than his attorney. Do you also feel the justifications for being prohibited from turning to your bar association are "no mystery"?
This proceeding, whether secret or not, is oppressive. If the federal effort to remove Moncier from his federal practice is successful, not only will his clients be denied their constitutional right to counsel, but the power of the government to squelch advocacy of the rights of individuals will have grown to frightening proportions.
Submitted by Bbeanster on Sat, 2008/03/08 - 2:40pm.
I am shaken that you believe that a practicing attorney should accept the court's attempt to bar a criminal defense attorney under these circumstances.
Submitted by Johnny Ringo on Sat, 2008/03/08 - 2:44pm.
Actually if you'll carefully read what I wrote, nothing I said reflected or was intended to relect in any way on the merits of this particular case. I was just explaining the procedure.
Submitted by S Carpenter on Sat, 2008/03/08 - 4:38pm.
Sorry if I took your statements wrongly. In 18 years of practice I've never seen a proceeding like this so to me it is a mystery.
I hope all attorneys realize the serious nature of this particular attempt to remove one of us from the courtroom. I respect the deference to the court's inherent power but this isn't right.
Submitted by Anonymously Nine (not verified) on Sun, 2008/03/09 - 2:14pm.
From the link:
An attorney must be careful not to cross the boundary line of permissible zealousness and enter into the murky waters of unprofessional or unethical conduct. An attorney who crosses that line may be subject not only to professional disciplinary action from specialized and independent state boards, but also subject to sanctions from the court itself, including possible suspension from practice or disbarment.
It is about boundaries. Herb is not good with understanding where the line is.
"May I speak to my client" seems like a natural response to a judge telling an attorney to stop talking to him, unless the courtroom is the scene of a child's game, but do we know for sure that is what this hearing is about? That contempt charge sounds unreasonable, but Moncier also had that altercation at McDonald's and has seemed a bit of a hanger-on with some of the recent county lawsuits. It's not hard to imagine his professional peers worrying about him, though a secret hearing before a judge seems a poor venue for showing concern.
Professional reviews are kept confidential to protect the defendant, so shouldn't the defendant be able to waive confidentiality? Secrecy used to protect accusers or institutional reprimand is indeed grounds for picketing. I don't feel like I know enough yet to understand what is happening.
p.s.:
Note who's defending Herb. Ralph Harwell is as good as lawyers get. Unsung hero IMO.
Judge Collier is a lifelong Democrat, a Clinton appointee and Moncier and Harwell are pillars in Democratic politics in Knox County, albeit somewhat quieter now than they have been over years. Interesting to see how the Democrats look to eat their own in these legal circles, what is the world coming to?
News to me
I'm not a big Herb fan, but what's the possible justification for doing this in secret? I can't think of one, and I agree with Betty that it reeks.
"a little-known rule drafted by local federal judges"
Huh? Both the notion of judges drafting rules and "local federal" sound oxymoronic to me.
Rags2010, I heard Moncier speak to a group of Democrats once, and he said he was a Republican. He has voted in more Republican primaries than Dem. Likewise, Harwell votes more often as a Republican, even in Presidential primaries. Also, Collier's appointment happened just as Republicans took control of the Senate in 1994, and Fred Thompson and Bill Frist both sponsored his nomination. Even if interpreting this in a partisan light weren't stupid, you still got it wrong.
The article does not reference whether Moncier actually opposed keeping the hearing secret. I don't think that disciplinary matters with the Board of Professional Responsibility are open to the public, and it may be that Collier is following that example, and that Moncier did not object. If he did object, it should be in the file, and if he had a problem with the secrecy, he would have objected, I would think.
The Local Rules are usually proposed with notice to the bar, who has an opportunity to comment, and I wonder whether this was done and whether Moncier opposed the rule change.
See here, and more specifically here (Page 92) for the relevant rules.
So these are rules of conduct in the courts, not general laws? I don't understand why such a hearing is in front of a judge and not the bar or some professional board.
Also, it seems to me that Herb's offense is relatively minor -- unless it's a crime to be an annoying person. I could be in a lot of trouble.
Judges have common-law powers to enact rules for the conduct of their courts. The Code of Professional Conduct that governs attorney ethical behavior was not enacted by the legislature - it's a Rule enacted by the Tennessee Supreme Court. The Supreme Court has enected a plethora of such rules, which cover everything from admission to the bar to the appointment of Guardians ad Litem in juvenile justice cases. There are also local rules that govern the ways matters are handles in the Knox County Circuit, Chancery and criminal courts. Those rules are formulated by the local judges (under rules established by the Supreme Court) and can vary quite widely from court to court. The way divorces are handled in Fourth Circuit Court, for instance, are very different from the way they are handled in the Chancery Courts.
The federal courts similarly have the power to enact rules for practice in their courts, and the document I linked above is the result of that rulemaking power. Every lawyer who practices in a court is expected to know and comport themselves with those local rules. There's nothing really all that mysterious about this, or at least not to practicing attornies.
As to why hearings like the one at issue are sealed, that's a question best left to the federal court judges. I do know that until recently all matters before the Tennessee Board of Professional Responsibility - the ethics board for lawyers - were secret as well. I suspect that this was mainly for the protection of attornies, who don't want to have their reputations sullied by frivolous charges filed by angry clients (or opponents). The results of BPR investigations were always made public - just not the processes that led to those results.
I guess finally to answer Rikki's question about why the hearing was in front of a judge and not in front of a professional board, the answer I think is that practice in the federal courts is considered to be a privelege, not a right. Gradualtion from law school and passage of the bar does not entitle you to practice in the federal courts - you have to ask for permission, and have that permission granted by the local presiding federal judge. Go to most trial attornies' offices and you will see separate documents on the wall granting permission from the state supreme court to practice in the state courts and from the federal courts granting permission to practice in the federal courts. In fact, practicing in all of the federal courts requires THREE applications and permissions - one from the district courts, one from the Court of Appeals, and finally permission from the U.S. Supreme Court if one wishes to practice there. Such permission is generally granted pro forma, but it can be taken away. The Eastern District of Tennessee federal courts have apparently arrogated to themselves the power to revoke that permission, and per the local rules established a procedure for doing so.
I do know of one local lawyer who was once banned for a year from practice in the Eastern District federal courts for allegedly violating a court order not to participate in abortion clinic protests. Courts have wide latitude to set the standards of behavior they expect from attornies that practice before them, and that authority sometimes gets exercised.
JR says: "There's nothing really all that mysterious about this, or at least not to practicing attornies."
Moncier was told not to speak. He then asked if he could speak to his client. Moncier wanted to speak to his client before the client had to respond to a question from the judge in open court.
The basis for the discipline was Moncier's violation of the court order not to speak further but his motivation was to zealously represent his client. The advocate's instinct to counsel the client and protect the right against self incrimination is bedrock to the principles of the 5th and 6th Amendment.
Moncier didn't willfully deceive, lack candor or perpetuate a fraud. If his conduct had been such, we wouldn't be having this discussion.
Which is why I am shaken that you believe that a practicing attorney should accept the court's attempt to bar a criminal defense attorney under these circumstances.
I understand that Moncier prevailed in lifting the secret and confidential nature of the proceedings at a hearing on Wednesday. Prior to that ruling he was unable to subpoena or speak to anyone other than his attorney. Do you also feel the justifications for being prohibited from turning to your bar association are "no mystery"?
This proceeding, whether secret or not, is oppressive. If the federal effort to remove Moncier from his federal practice is successful, not only will his clients be denied their constitutional right to counsel, but the power of the government to squelch advocacy of the rights of individuals will have grown to frightening proportions.
Preach it, Scott! This is just wrong.
Actually if you'll carefully read what I wrote, nothing I said reflected or was intended to relect in any way on the merits of this particular case. I was just explaining the procedure.
Sorry if I took your statements wrongly. In 18 years of practice I've never seen a proceeding like this so to me it is a mystery.
I hope all attorneys realize the serious nature of this particular attempt to remove one of us from the courtroom. I respect the deference to the court's inherent power but this isn't right.
Here's a pretty good article from the Memphis Law Review on the whole subject, for those who are really interested.
From the link:
An attorney must be careful not to cross the boundary line of permissible zealousness and enter into the murky waters of unprofessional or unethical conduct. An attorney who crosses that line may be subject not only to professional disciplinary action from specialized and independent state boards, but also subject to sanctions from the court itself, including possible suspension from practice or disbarment.
It is about boundaries. Herb is not good with understanding where the line is.
"May I speak to my client" seems like a natural response to a judge telling an attorney to stop talking to him, unless the courtroom is the scene of a child's game, but do we know for sure that is what this hearing is about? That contempt charge sounds unreasonable, but Moncier also had that altercation at McDonald's and has seemed a bit of a hanger-on with some of the recent county lawsuits. It's not hard to imagine his professional peers worrying about him, though a secret hearing before a judge seems a poor venue for showing concern.
Professional reviews are kept confidential to protect the defendant, so shouldn't the defendant be able to waive confidentiality? Secrecy used to protect accusers or institutional reprimand is indeed grounds for picketing. I don't feel like I know enough yet to understand what is happening.
A word from McElroy on the latest twist: Link...
Funny that McElroy isn't open about the KNS and its past association with Moncier. Maybe the problem isn't fairness, but a conflict of interest.
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