### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

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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 th at 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: 06/15/2015No. 14

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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 compl aint 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, ho lding 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 Wes tern 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 m otion 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 fi led a motion for reconsideration, contesting Credit Management’s assertions regarding whether and when he received Case: 14-50910 Document: 00513078865 Page: 2 Date Filed: 06/15/2015No. 14

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3 information establishing that the case should be dismissed

. The district court denied the motion for reconsideration, explaining that its re ferral 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 Z ente 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 refer s Lemberg’s conduct to the Admissions Committee of the Western District of Te xas , 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. Se c. 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 appea l 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. I n order for this court to have ap pellate 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: 06/15/2015No. 14

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4 Co. , 653 F.3d 299, 304

- 0 5 (3d Cir. 2011) ; Keach v. Cnty. of Schenectady , 593 F.3d 218, 22 3

- 2 4 (2d Cir. 2010)

. “Mo st 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

. S ee 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. Te chs., Inc ., 348 F.3d 1163, 11 69 (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 no t 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 dispositiv e 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 ref erral accompanied by a finding of misconduct is appealable) , and In re Goldstein , 430 F.3d 106, 111

- 12 (2d Cir. 2005) (same)

. T he Tenth Circuit ha s 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 admit ted, enclosed a transcript of a proceeding in its court , and submit ted the attorney’s conduct for the consideration of the disciplinary authorities. Id . at Case: 14-50910 Document: 00513078865 Page: 4 Date Filed: 06/15/2015No. 14

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5 1180. The Tenth Circuit found that the referral was not “tantam ount to a finding of misco nduct,” 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 mi sconduct.” 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 sanct ion 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
t he 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 t hat “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 Circuit s ha ve 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: 06/15/2015No. 14

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6 included specific findings of attorney misconduct , constitute s 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 att orney contacting her, held a hearing regarding the attorney’s conduct, including requiring the attorney to explain his conduct , and reviewed post

- hearing memorand a from the parties regarding the issue. Adams , 653 F.3d at 303. Subsequently, “t he judge ma de 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 th ose 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 o f 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 sancti on. See i d

. 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 a t 111

- 12

. In Goldstein , the district court order adopted a

m agistrate j udge ’ s r eport and r ecommendation which concluded that the attorney violated “ various disciplinary rules ,” stated that the attorney “ was unprepared to conduct h imself as an officer of the court ” and referred the attorney’s conduct “ to the appropriate disciplinary committees.” Id . at 1 09

- 10, 1 12. The Goldstein court specifically distinguished Teaford , noting that in Teaford there was no standing to appeal because the district court “si mply referred the attorney in question w ithout making any specific findings of Case: 14-50910 Document: 00513078865 Page: 6 Date Filed: 06/15/2015No. 14

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7 misconduct or expressing any opinion of the attorney ’ s actions ,” whereas the district court in Goldstein “ explicitly concluded that Goldstein was in violatio n of various discipl inary 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. ” Kea ch , 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 m akes an express finding that a lawyer has committed specific acts of professional misconduct, but not whe re the court has engaged in . . . routine j udicial commentary or criticism.” Id . at 226. In accordance with the cases from our sister circuits, w e c onclude that a referral of atto rney 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

. A dams , 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 foun d conferred standing to appeal. I t made no factual fi ndings or le gal 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 ”); L lanez

- 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: 06/15/2015No. 14

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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 thes e attorneys wilfully failed to disclose informa tion 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 11 66 ( order reprimanded atto rney “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, t he district court state d : T he 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

. W e conclude that t h is imprecise s tatement 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. T he dis trict court specif ies neither what i nformation it is referring to

n or whether and when Lemberg actually received, reviewed or read that information. I t does not conclude that Lembe rg received th is inf ormation prior to filing suit; indeed Credit Management has not even alleged that Lemberg

r eceived such information prior to filing suit. In addition , t he 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: 06/15/2015No. 14

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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 d enying 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 Committ ee 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 t he 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 w ill 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.
R eading the appealed orders together, it is clear that the district court made no finding of misconduct. Quite t he 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, t he referral “ amounts to a suggesti on that a violation of rules of conduct may have occurred, leaving further consideration, investigation, and jud gment to the disciplinary board. ” Teaford , 338 F.3d at 1182 . Thus, Lemberg has no standing to appeal the orders. On appeal, th e partie s cont inue 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: 06/15/2015No. 14

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10 representations made to the court, and when Lemberg knew or should have known that the suit should be dismissed . As we have said, t he district court made no findings regarding these disputes . N or 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