IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50910

JOSEPH ZENTE, 

 Plaintiff - Appellant

v.

CREDIT MANAGEMENT, L.P., 

 Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

Before WIENER, SOUTHWICK, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

Albeit in the name of Plaintiff-Appellant Joseph Zente, his attorney, 

Sergei Lemberg, appeals the district court’s referral of his conduct to the 

disciplinary committee of the Western District of Texas. We conclude that

neither Zente nor Lemberg has standing to appeal that referral, which was not 

accompanied by any finding of misconduct, and dismiss the appeal. 

I. Factual and Procedural Background

This case arises from Defendant-Appellee Credit Management, L.P.’s 

debt-collection phone calls to Zente. Lemberg filed this action for Zente in the

Western District of Texas for violations of the Fair Debt Collection Practices 

Act, 15 U.S.C. § 1692 et seq., the Telephone Consumer Protection Act, 47 U.S.C. 

United States Court of Appeals

Fifth Circuit

FILED

June 15, 2015

Lyle W. Cayce

Clerk

 Case: 14-50910 Document: 00513078865 Page: 1 Date Filed: 06/15/2015
No. 14-50910

2

§ 227, and the Texas Debt Collection Act, Tex. Fin. Code § 392.001 et seq. Zente

alleged that Credit Management harassed him with automated telephone calls 

to which he did not consent, and continued to call him after he requested that 

the calls cease. On July 1, 2014, after information and audio recordings were 

produced in discovery, Zente filed a motion for dismissal with prejudice. On 

July 14, Credit Management responded to the motion to dismiss by requesting 

sanctions against Lemberg under Federal Rule of Civil Procedure 11, asserting 

that Lemberg knew the allegations in the complaint were false and that the 

case was frivolous. 

Three days later, before Lemberg responded to the request for sanctions, 

the district court granted Zente’s motion to dismiss with prejudice. The district 

court denied the request for Rule 11 sanctions, holding that sanctions were 

unavailable because Lemberg filed the motion to dismiss first, and thus 

obviously within twenty-one days of knowing that Credit Management was 

seeking Rule 11 sanctions. See Fed. R. Civ. P. 11(c)(2). 

However, in the same order, the district court stated that: “In addition, 

the undersigned will forward a copy of this file to the Admissions Committee 

of the Western District of Texas for a review and appropriate action, if any, 

regarding Mr. Lemberg’s license to practice in the Western District of Texas.” 

On July 16, the district court sent a referral letter to the Admissions 

Committee of the Western District of Texas outlining Credit Management’s 

allegations regarding Lemberg’s conduct, enclosing a copy of the order granting 

the motion to dismiss, and requesting “that the Admissions Committee make 

an appropriate investigation in this case to determine what action, if any, 

should be taken against Mr. Lemberg, as he is a licensed member of the 

Western District of Texas.” 

Lemberg filed a motion for reconsideration, contesting Credit 

Management’s assertions regarding whether and when he received 

 Case: 14-50910 Document: 00513078865 Page: 2 Date Filed: 06/15/2015
No. 14-50910

3

information establishing that the case should be dismissed. The district court 

denied the motion for reconsideration, explaining that its referral was intended 

to allow the Admissions Committee to conduct an “objective review” of the 

parties’ contentions. This appeal followed.

II. Discussion

Lemberg filed a notice of appeal nominally on behalf of Zente, although 

it is clear that Plaintiff Zente does not and could not seek to appeal from the 

dismissal that he requested. In fact, Lemberg appeals, on his own behalf, the 

portion of the district court’s order that refers Lemberg’s conduct to the 

Admissions Committee of the Western District of Texas, and its denial of 

reconsideration of that action. Lemberg asserts that the referral was a 

sanction, and that the district court failed to afford him the due process 

protections to which he is entitled before imposing the sanction. See Merriman 

v. Sec. Ins. Co. of Hartford, 100 F.3d 1187, 1191 (5th Cir. 1996) (requiring 

“notice and an opportunity to be heard” before sanctions can be imposed on an 

attorney). 

The threshold question is whether Lemberg has standing to appeal the 

orders. In the order of dismissal, the district court denied Credit 

Management’s request for sanctions against Lemberg. “It is a central tenet of 

appellate jurisdiction that a party who is not aggrieved by a judgment of the 

district court has no standing to appeal it.” Ward v. Santa Fe Indep. Sch. Dist., 

393 F.3d 599, 603 (5th Cir. 2004) (citing Matter of Sims, 994 F.2d 210, 214 (5th 

Cir. 1993)). “Thus, a prevailing party generally may not appeal a judgment in 

its favor.” Id. In order for this court to have appellate jurisdiction, the district 

court’s referral to the Admissions Committee “must amount to a sanction 

sufficiently injurious” to Lemberg to confer standing to appeal. Teaford v. Ford 

Motor Co., 338 F.3d 1179, 1181 (10th Cir. 2003); see also Adams v. Ford Motor 

 Case: 14-50910 Document: 00513078865 Page: 3 Date Filed: 06/15/2015
No. 14-50910

4

Co., 653 F.3d 299, 304-05 (3d Cir. 2011); Keach v. Cnty. of Schenectady, 593 

F.3d 218, 223-24 (2d Cir. 2010). 

“Most courts agree that mere judicial criticism of an attorney’s conduct 

is insufficient to constitute a sanction which would support standing.” Adams,

653 F.3d at 304 (collecting cases). On the other hand, most circuits, including 

ours, have allowed appeal where the district court made a finding that a lawyer 

engaged in misconduct, even if the court did not impose tangible sanctions. See 

Walker v. City of Mesquite, Tex., 129 F.3d 831, 832-33 (5th Cir. 1997); United 

States v. Llanez-Garcia, 735 F.3d 483, 491 (6th Cir. 2013); Bowers v. Nat’l 

Collegiate Athletic Ass’n, 475 F.3d 524, 543-44 (3d Cir. 2007); Butler v. Biocore 

Med. Techs., Inc., 348 F.3d 1163, 1169 (10th Cir. 2003); United States v. Talao, 

222 F.3d 1133, 1138 (9th Cir. 2000); but see Clark Equip. Co. v. Lift Parts Mfg. 

Co., 972 F.2d 817, 820 (7th Cir. 1992) (“[A]n attorney may not appeal from an 

order that finds misconduct but does not result in monetary liability, despite 

the potential reputational effects.”). Cases from other circuits that have 

specifically addressed standing to appeal referrals of attorney conduct to bar 

disciplinary committees reveal that the dispositive inquiry is whether or not 

the referral was accompanied by a specific finding of misconduct. Compare

Teaford, 338 F.3d at 1182 (holding that a referral without a finding of 

misconduct is not appealable), with Adams, 653 F.3d at 304-06 (holding that a 

referral accompanied by a finding of misconduct is appealable), and In re 

Goldstein, 430 F.3d 106, 111-12 (2d Cir. 2005) (same). 

The Tenth Circuit has expressly held that “the mere referral of a matter 

to the disciplinary committee, without any finding of misconduct, is not 

appealable.” Teaford, 338 F.3d at 1182. In Teaford, the district court sent a 

letter to bar disciplinary authorities in two states where an attorney was 

admitted, enclosed a transcript of a proceeding in its court, and submitted the 

attorney’s conduct for the consideration of the disciplinary authorities. Id. at 

 Case: 14-50910 Document: 00513078865 Page: 4 Date Filed: 06/15/2015
No. 14-50910

5

1180. The Tenth Circuit found that the referral was not “tantamount to a 

finding of misconduct,” noting that “[a]ny participant in the litigation, or 

member of the general public, has the right to bring allegations of lawyer 

misconduct to the attention of the bar.” Id. at 1181. The court acknowledged 

that a referral from the district court “may imply some level of judicial 

disapproval of the attorney’s conduct and may affect the attorney’s reputation.” 

Id. at 1182. However, the court concluded, “the judgment implicit in such a 

letter is below the level of a censure or specific finding of misconduct.” Id. 

Instead, a referral letter “amounts to a suggestion that a violation of rules of 

conduct may have occurred, leaving further consideration, investigation, and 

judgment to the disciplinary board.” Id. Because the judge’s referral was 

“neither an implicit nor an explicit finding of misconduct,” the court found that 

it was not an appealable sanction. Id.

The Eleventh Circuit has agreed that a referral is not a reviewable

sanction. Adkins v. Christie, 227 F. App’x 804, 806 (11th Cir. 2007)

(unpublished). In Adkins, the district court referred two lawyers to a 

disciplinary committee “for their alleged bad-faith conduct in representing 

parties with conflicting interests,” in addition to imposing a sanction on the 

attorneys in the form of attorney’s fees. Id. at 805. The court explained that 

“[a] referral cannot be characterized as a sanction or a disciplinary measure. 

Through a referral, a district court simply indicates that in its view, conduct of 

the attorneys merits further examination by the disciplinary committee, which 

may or may not result in a sanction.” Id. at 806. Thus, even though it reversed 

the attorney’s fees sanction because the attorneys were not afforded due 

process, it concluded that “the district court’s decision to refer [the attorneys] 

to the disciplinary committee is beyond the scope of our review.” Id. 

By contrast, the Second and Third Circuits have held that a district 

court’s referral of an attorney’s conduct to a disciplinary committee, which 

 Case: 14-50910 Document: 00513078865 Page: 5 Date Filed: 06/15/2015
No. 14-50910

6

included specific findings of attorney misconduct, constitutes an appealable 

sanction. See Adams, 653 F.3d at 305-06; Goldstein, 430 F.3d at 111-12. In 

Adams, a magistrate judge received a complaint from a juror about an attorney 

contacting her, held a hearing regarding the attorney’s conduct, including 

requiring the attorney to explain his conduct, and reviewed post-hearing 

memoranda from the parties regarding the issue. Adams, 653 F.3d at 303. 

Subsequently, “the judge made a factual finding that [the attorney] had 

violated ABA Model Rule 3.5(c) and the judge then referred the matter to the 

Virgin Islands Bar Association for a formal investigation and disciplinary 

proceedings.” Id. at 305. In those circumstances, the Third Circuit found that 

the order was “more than mere judicial criticism” and held that the specific

finding of attorney misconduct was a sanction that conferred standing to 

appeal. Id. at 305-06. Although the Adams court made note of the district 

court’s referral of the attorney’s conduct to a bar authority and the discipline 

that could potentially be imposed as a result, the court primarily relied on the 

express finding of misconduct in concluding that there was an appealable 

sanction. See id. 

Similarly, the Second Circuit has held that a district court’s referral of 

an attorney’s conduct to a disciplinary committee, which included specific 

findings of attorney misconduct, constituted an appealable sanction.

Goldstein, 430 F.3d at 111-12. In Goldstein, the district court order adopted a 

magistrate judge’s report and recommendation which concluded that the 

attorney violated “various disciplinary rules,” stated that the attorney “was 

unprepared to conduct himself as an officer of the court” and referred the 

attorney’s conduct “to the appropriate disciplinary committees.” Id. at 109-10, 

112. The Goldstein court specifically distinguished Teaford, noting that in 

Teaford there was no standing to appeal because the district court “simply 

referred the attorney in question without making any specific findings of 

 Case: 14-50910 Document: 00513078865 Page: 6 Date Filed: 06/15/2015
No. 14-50910

7

misconduct or expressing any opinion of the attorney’s actions,” whereas the 

district court in Goldstein “explicitly concluded that Goldstein was in violation 

of various disciplinary rules.” Id. at 111-12 (citing Teaford, 338 F.3d at 1181). 

The court found that the “specific findings of fact showed that the district 

court’s referral was ‘much more than implied criticism,’ and was, in fact, a 

sanction, which is reviewable.” Keach, 593 F.3d at 224 (describing and quoting 

Goldstein, 430 F.3d at 112). The Second Circuit has expressly limited 

Goldstein, specifying that an attorney may appeal “where the district court 

imposes a tangible sanction or makes an express finding that a lawyer has 

committed specific acts of professional misconduct, but not where the court has 

engaged in . . . routine judicial commentary or criticism.” Id. at 226. 

In accordance with the cases from our sister circuits, we conclude that a 

referral of attorney conduct to a disciplinary committee, absent a specific 

finding of misconduct, is not a sanction that confers standing to appeal. See

Teaford, 338 F.3d at 1182; cf. Adams, 653 F.3d at 304-06 (holding that a 

referral accompanied by a finding of misconduct is appealable); Goldstein, 430 

F.3d at 111-12 (same). Thus, Lemberg has standing to appeal in the instant 

case only if the district court’s referral to the Admissions Committee was 

accompanied by a specific finding of misconduct. 

In the circumstances of this case, we conclude that the court made no

finding of misconduct. The district court made no findings like those that 

courts have found conferred standing to appeal. It made no factual findings or 

legal conclusions regarding the alleged misconduct, and made no implied or 

explicit finding that Lemberg violated any ethical rule or canon. See Walker, 

129 F.3d at 832-33 (attorney “was reprimanded sternly and found guilty of 

blatant misconduct”); Llanez-Garcia, 735 F.3d at 491 (court order outlined 

multiple attorney “actions that the Court finds sanctionable” including 

“misusing the subpoena process, ‘unreasonably and vexatiously’ multiplying 

 Case: 14-50910 Document: 00513078865 Page: 7 Date Filed: 06/15/2015
No. 14-50910

8

the proceedings, and engaging in ‘inexcusable’ conduct that demonstrates a 

‘flagrant disregard for the power of the subpoena’”); Adams, 653 F.3d at 305 

(“the judge made a factual finding that [the attorney] had violated ABA Model 

Rule 3.5(c)”); Bowers, 475 F.3d at 543-44 (court “made findings that these 

attorneys wilfully failed to disclose information to Defendants in bad faith”);

Goldstein, 430 F.3d at 112 (order “explicitly concluded that [the attorney] was 

in violation of various disciplinary rules”); Butler, 348 F.3d at 1166 (order 

reprimanded attorney “for continued ethical violations”); Talao, 222 F.3d at

1138 (court “made a finding and reached a legal conclusion that [an attorney] 

knowingly and wilfully violated a specific rule of ethical conduct”). 

There is only one statement in the district court’s order that could even 

arguably be construed as a finding of misconduct. In its order granting the 

motion to dismiss and denying sanctions, the district court stated: 

The defendant in its response clearly establishes information 

which was sent to Mr. Lemberg that, if read or otherwise reviewed, 

clearly establishes no lawsuit should be filed as the one filed in this 

Court against Credit Management, LP.

We conclude that this imprecise statement cannot be construed as a finding of 

misconduct. This is not a specific or conclusive factual finding or legal 

conclusion regarding Credit Management’s allegations about Lemberg’s 

conduct. The district court specifies neither what information it is referring to

nor whether and when Lemberg actually received, reviewed or read that 

information. It does not conclude that Lemberg received this information prior 

to filing suit; indeed Credit Management has not even alleged that Lemberg 

received such information prior to filing suit. In addition, the referral letter 

the district court sent to the Admissions Committee repeatedly describes only 

the “contentions” of Credit Management regarding Lemberg’s conduct; it 

neither implies nor states that the court reviewed these contentions or found 

them to be accurate. 

 Case: 14-50910 Document: 00513078865 Page: 8 Date Filed: 06/15/2015
No. 14-50910

9

Further, in his motion for reconsideration, Lemberg contested Credit 

Management’s assertions regarding what information was provided to him and 

when, including alleging that he did not finally receive the information 

establishing that the suit should be dismissed until April 2014, only three 

weeks prior to Lemberg first informing Credit Management that Zente 

intended to dismiss the suit. In its order denying reconsideration, the district 

court acknowledged the factual disputes raised by the parties’ differing 

contentions and expressly declined to resolve them. The district court 

explained that: 

The referral by the undersigned to the Admissions Committee of 

the Western District of Texas is simply not a referral to a “star 

chamber” or committee. The committee presumably will 

investigate the circumstances and obtain the same information 

now supplied in the motion for reconsideration, which is, of course,

contested by opposing counsel. An objective review and 

recommendation of the Admissions Committee is necessary to 

maintain the integrity of counsel and this Court. The undersigned 

has confidence any investigation or inquiry by the Admissions 

Committee will be fair and objective with the goal that issues 

alleged in the pleadings in this case will not reappear in this 

division or this district.

Reading the appealed orders together, it is clear that the district court

made no finding of misconduct. Quite the opposite: the district court declined 

to resolve the disputes regarding the attorneys’ conflicting allegations, and 

referred the matter to the Admissions Committee for an objective review and 

recommendation. At most, the referral “amounts to a suggestion that a 

violation of rules of conduct may have occurred, leaving further consideration, 

investigation, and judgment to the disciplinary board.” Teaford, 338 F.3d at 

1182. Thus, Lemberg has no standing to appeal the orders. 

On appeal, the parties continue to spend significant time criticizing each 

other’s conduct in the district court, including contesting various 

 Case: 14-50910 Document: 00513078865 Page: 9 Date Filed: 06/15/2015
No. 14-50910

10

representations made to the court, and when Lemberg knew or should have 

known that the suit should be dismissed. As we have said, the district court 

made no findings regarding these disputes. Nor do we. Nothing we have said 

should be construed as a finding or opinion regarding the propriety of any 

attorney’s conduct in the district court. 

III. Conclusion

For the foregoing reasons, we conclude that the district court’s referral 

of Lemberg’s conduct to the disciplinary committee does not constitute a 

sanction. Accordingly, we dismiss this appeal for lack of standing. 

DISMISSED. 

 Case: 14-50910 Document: 00513078865 Page: 10 Date Filed: 06/15/2015