“Lawyer Who Wouldn’t Stop Talking” Talks His Way to Suspension

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Some of you probably think the phrase "lawyer who wouldn’t stop talking" is redundant, but it isn’t quite.  There is a time for talking, and a time for not talking; and one good time for not talking is just after a judge has ordered you to stop talking or be sent to jail.

Herbert Moncier’s failure to follow this rule not only got him jail time, it led to a disciplinary opinion by the Eastern District of Tennessee.  How did that come out?  Well, I don’t want to ruin the suspense, but here are two clues: (1) the opinion is 80 pages long, and (2) it cites cases dating back to 1812.

According to the opinion, Moncier’s troubles began during a 2006 hearing in which Moncier

  • "repeatedly interrupted or spoke over the presiding judge,"
  • "accused the prosecution of engaging in a conspiracy to prevent him from trying cases due to his success in past trials,"
  • threatened to "sit there and remain mute," apparently a threat to refuse to defend his client,
  • "contradict[ed] the court’s admonishment," and finally
  • "disobeyed a direct order from the court that he stop interrupting and not say another word."

After that last one, Moncier was stuck chatting with the bailiff on his way to a cell.

He was later convicted of criminal contempt of court.  The recent opinion was issued in a separate disciplinary action before the court’s chief judge, who ordered Moncier in January to show cause why he should not be suspended from practicing law.  Here’s a tip: you should respond to orders like that, rather than filing a motion of your own.  Moncier in fact filed four, with a success rate of approximately zero percent.  His response, when he finally filed one, was described by the court as lacking "a single challenge to any of the substantive findings or recommendations . . . ."  The arguments were also described in the following ways:

  • "inadequately explained, legally unsupported, and factually barren,"
  • "often evasive, revisionist, and self-serving,"
  • "defies credibility,"
  • "shifting, post-hoc rationalizations,"
  • "exasperating,"
  • "incredibly disappointing,"
  • "specious,"
  • "completely baseless," and
  • making "incredible assertion[s]."

At that point the courthouse had to be evacuated after the court’s thesaurus burst into flame.

Of the sparkling array of defenses raised, the crown jewels were two expert-witness affidavits.  The first, by an ethics expert, was undermined slightly by a failure to apply the right ethics rules.  But the second one, my friends, the second was provided by a "linguistics expert."  This person read the transcript of the hearing and testified that, linguistically, she didn’t see a problem:

[B]ased upon her reading of the transcript of the November 2006 hearing [said the court,] it "reflects consensual dialog, including debate and argument, between Mr. Moncier and Judge Greer" . . . . She goes on to say she finds "nothing in the transcript that supports an opinion that Mr. Moncier intended or demonstrated disrespect to Judge Greer or that Judge Greer intended or demonstrated disrespect to Mr. Moncier" (id.).

In other words, Moncier hired a linguistics expert to read the transcript and testify that, in her expert opinion, there was no contempt.  At this point, the loss of the thesaurus made itself felt, or else the court was just tired of bothering.  It wrote that this opinion was "so devoid of belief [sic] and such a departure from reality that to call it incredible is to be charitable."

Was there ever an apology?  Sort of:  "I deeply regret and apologize," Moncier wrote, "that my actions were considered by District Judge Greer to be a violation of his orders and that now my actions have been considered by [another judge] to be violations of the Rules of Professional Conduct."  Here’s another time to stop talking: when you are about to deliver one of these non-apologetic apologies that are now so common, in which you apologize for the fact that somebody else got upset by what you did.

The court suspended Moncier for seven years, although he can apply for early reinstatement after three.  So, mark your calendars for 2011.  That ought to go well.

Link: ABA Journal
Link: In re Moncier (E.D. Tenn.)