In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-1334

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLARD JOHNSON,

Defendant,

and

H. WESLEY ROBINSON and NATIONAL

LEGAL PROFESSIONAL ASSOCIATES,

Appellants.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 00 CR 30024—G. Patrick Murphy, Chief Judge.

____________

ARGUED OCTOBER 30, 2002—DECIDED APRIL 24, 2003

____________

Before FLAUM, Chief Judge, and BAUER and DIANE P.

WOOD, Circuit Judges.

BAUER, Circuit Judge. Hugh Wesley Robinson and

National Legal Professional Associates (“NLPA”) appeal

a district court order imposing monetary sanctions after

the court determined that Robinson and NLPA (together,

“Appellants”) were engaged in the unauthorized practice

of law in the Southern District of Illinois. For the reasons

set forth below, we find that the district court properly
2 No. 02-1334

1 Robinson was sentenced to three years in prison and five years

of probation for his role as the “mastermind” of a loan-placement

scam that defrauded its victims of over $720,000 during a threemonth period in 1980. United States v. Robinson, 774 F.2d 261

(8th Cir. 1985).

invoked its inherent power to investigate and sanction

Appellants’ conduct, but that it abused its discretion in

directing that certain fees paid for Appellants’ services

be returned and disbursed to a charity of the district

court’s choosing.

BACKGROUND

Willard Johnson, the named defendant in this appeal, was represented by court-appointed counsel, Philip

J. Kavanaugh III, during pretrial proceedings in the

Southern District of Illinois for federal drug-trafficking

charges. After Kavanaugh refused Johnson’s request that

Kavanaugh hire NLPA to assist him in the preparation

of Johnson’s defense, Johnson filed a complaint with the

Attorney Registration and Disciplinary Commission of

Illinois (“ARDC”). Consequently, Kavanaugh moved to withdraw as Johnson’s counsel.

At all times relevant for purposes of this appeal, NLPA

was an Ohio-based firm providing pretrial, sentencing,

and post-conviction consulting services, and Robinson

served as NLPA’s Administrative Director and Director

of Case Analysis and Research. In 1985, the Ohio Supreme

Court permanently disbarred Robinson from the practice

of law following a federal criminal conviction for mail

fraud.1

 Robinson is not licensed to practice law in any

other jurisdiction. In order to market its paralegal services, NLPA routinely provided criminal defendants with

literature explaining those services and the method by

which a defendant’s legal counsel might hire NLPA. Since
No. 02-1334 3

2 Though Chief Judge Murphy was not installed as Chief Judge

of the United States District Court for the Southern District of

Illinois until October 2000, we refer to him here and throughout

as “Chief Judge Murphy.”

NLPA was not a law firm, nor was Robinson (nor any

of NLPA’s consultants under his direction) a licensed attorney, NLPA’s services could comprise only part of the

client’s defense team under the supervision of a licensed

attorney. Though NLPA marketed itself directly to criminal defendants as potential clients, and clients or their

families bore sole responsibility for paying NLPA’s fees,

only a defendant’s attorney had the ultimate authority

and discretion to hire NLPA.

Johnson contacted NLPA in early 2000 after learning

of the organization from a fellow inmate at the St. Clair

County Jail, and Robinson replied by letter containing a

promotional brochure entitled, “Helpful tips you should

know when you’ve been BUSTED!” Convinced of the necessity of Appellants’ services to the success of his defense, Johnson insisted that Kavanaugh enlist NLPA’s

assistance. Relying on his own professional judgment,

however, Kavanaugh declined to associate himself with

Appellants, prompting Johnson’s disciplinary complaint

against Kavanaugh and Kavanaugh’s subsequent motion

to withdraw as Johnson’s counsel.

In June 2000, Chief Judge G. Patrick Murphy2

 heard

Kavanaugh’s withdrawal motion. Prior to excusing

Kavanaugh, the court inquired of, and Kavanaugh confirmed, Appellants’ involvement in the case. Concerned

that Appellants might have interfered with Kavanaugh’s

representation of Johnson, the court reacted as follows:

Well I’ll tell you. This is about—there is a group from

Cincinnati, and frankly, I’ve had them before, and
4 No. 02-1334

3 On September 5, 2000, this Court denied Appellants’ (i) application for a writ of mandamus to challenge the district court’s

July 11, 2000, order and (ii) emergency motion to stay further

district court proceedings.

they’re, at best, dimwits, and they give advice to these

defendants, who, God bless them, don’t know any

better, and they muck up the cases, and they’re never

here when you need them, and I’m full of it, and I’m

going to prepare the necessary orders, and I’m going

to have whoever they are in Court for practicing law

here in Illinois through the mail. I’m going to have

them here, and they’re going to be sitting right in front

of me, and I’m going to have some questions of them.

On July 11, 2000, pursuant to the district court’s inherent powers, Chief Judge Murphy filed an order to show

cause why Appellants should not be held in contempt

of court for engaging in the unauthorized practice of law

and why the court should not issue a cease and desist order against their practicing law in the Southern District

of Illinois. He further ordered Robinson to appear personally at a hearing on the order to show cause and to bring

with him a list of all cases in the Southern District of

Illinois in which Appellants had advised criminal defendants or contacted incarcerated defendants.3

At the September 6, 2000, hearing on the order to show

cause, the district court heard evidence of Appellants’

conduct in connection with Johnson’s case and others before the U.S. District Court for the Southern District of

Illinois. Ultimately, the district court did not hold Appellants in contempt, but it did determine that they had

engaged in the unauthorized practice of law in cases other

than Johnson’s. Chief Judge Murphy reasoned that the

practical effect of Appellants’ unsolicited marketing activities targeting criminal defendants was to interfere with
No. 02-1334 5

4 Chief Judge Murphy further declared that “the business of

marketing to these defendants directly, who then come to their

lawyer and say, we want to file this, these days are over. I believe

that is a blatant practice of law.”

5 In fact, Appellants’ marketing strategy is founded upon the

introduction into the mind of potential clients doubt as to

the competence of their attorneys. For example, one of NLPA’s

promotional brochures warns defendants that “you, and perhaps

even your attorney, are now sailing into previously uncharted

waters,” and suggests that NLPA’s services will protect defendants from “mistakes most often made by defendants under

pressure from their own lawyers and the government.”

the attorney-client relationship.4 By making procedural

and strategic recommendations to clients, Appellants indirectly pressured defense attorneys to pursue certain courses

of legal action. An attorney who refused to comply with

Appellants’ legal advice risked losing the confidence (and,

consequently, the employ) of his client.5

 Chief Judge

Murphy characterized the situation as one “where the

NLPA is foisting their services on an unwilling attorney,”

effectively hijacking the professional decision-making

authority of defense counsel. The district court concluded

that, insofar as they created a practical reversal of the

traditional roles of supervising attorney and subordinate

paralegal, Appellants’ activities exceeded the scope of

their permitted paralegal function and reached the level

of practicing law.

In an order entered on October 22, 2001, the district

court placed restrictions on Appellants’ permitted paralegal activities in the Southern District of Illinois and

required Appellants to file a signed declaration of fees

received in exchange for unauthorized legal services,

totaling $22,177.00, to be paid into the court as a monetary
6 No. 02-1334

6 The order prohibited Appellants from (i) directly soliciting

criminal defendants or their families; (ii) sending promotional

materials to criminal defendants or their families; (iii) providing research or consulting services to any criminal defendant

without an authentic and bona fide request from defense counsel; and (iv) supervising or purporting to supervise decisions of

defense counsel. The order further required Appellants, prior

to providing any services, (i) to obtain signed authorization

from defense counsel and (ii) to disclose fully to the defendant

and his family NLPA’s limited role as a strictly paralegal service.

7 The Greater East St. Louis Community Fund was established

by U.S. District Judge William D. Stiehl in 1991 as a pecuniary

community service alternative to traditional criminal fines.

Money paid into the Fund is used to provide educational, health,

and other community services to citizens of greater East St. Louis,

Illinois. Judge Stiehl retains jurisdiction over the Fund.

sanction.6 In January 2002, the district court denied Appellants’ request for a reduction of the monetary sanction

and directed the Clerk of Court to disburse the returned

funds to family members of all but two of the defendants

listed in Appellants’ declaration of fees. For the remaining two, either family members were unavailable or Appellants had not been retained by family members or an

attorney of record. The court directed that those funds,

totaling $7000, be disbursed to the Greater East St. Louis

Community Fund.7

 The district court also discharged the

order to show cause and directed the Clerk to forward a

copy of the Memorandum and Order to the Disciplinary

Counsel of the Supreme Court of Ohio.

Appellants contest the district court’s finding that they

engaged in the unauthorized practice of law and its imposition of the monetary sanction.
No. 02-1334 7

ANALYSIS

I. Invocation of Inherent Powers

Appellants challenge the district court’s authority and

jurisdiction, pursuant to its inherent powers, to determine

that they engaged in the unauthorized practice of law

and to impose sanctions therefor. They argue that the

court’s investigation of and imposition of sanctions for

unauthorized practice unrelated to defendant Johnson’s

case exceeded the scope of its subject matter jurisdiction,

since any issue outside Johnson’s case did not amount to

a live case or controversy. Appellants further contend that,

in making a finding of unauthorized practice of law outside Johnson’s case, the district court usurped the state

statutory procedure for regulating the practice of law and

improperly assumed the “roles of complainant, prosecutor,

judge and jury.”

Whether the district court properly invoked its inherent

powers is a question of law reviewable de novo. Kovilic

Constr. Co., Inc. v. Missbrenner, 106 F.3d 768, 771 (7th

Cir. 1997). The Supreme Court has characterized the inherent powers of a federal court as follows:

It has long been understood that “[c]ertain implied

powers must necessarily result to our Courts of justice

from the nature of their institution,” powers “which

cannot be dispensed with in a Court, because they

are necessary to the exercise of all others.” For this

reason, “Courts of justice are universally acknowledged

to be vested, by their very creation, with power to

impose silence, respect and decorum, in their presence,

and submission to their lawful mandates.” These

powers are “governed not by rule or statute but by the

control necessarily vested in the courts to manage

their own affairs so as to achieve the orderly and expeditious disposition of cases.”
8 No. 02-1334

8 This logical extension of the inherent powers is consistent

with the Supreme Court’s reasoning in Roadway Express, Inc. v.

Piper, 447 U.S. 752, 766 (1980) (“The power of a court over the

members of its bar is at least as great as its authority over

litigants.”). This power must also extend to nonmembers of the

bar who nonetheless engage in unauthorized activities impacting matters pending before a court.

Chambers v. NASCO, 501 U.S. 32, 43 (1991) (quoting

United States v. Hudson, 11 U.S. 21, 23 (1812); Anderson v.

Dunn, 19 U.S. 93, 103 (1821); Link v. Wabash R.R. Co., 370

U.S. 626, 630-631 (1961)). Though they are broad in scope,

“because of their very potency, inherent powers must

be exercised with restraint and discretion.” Chambers,

501 U.S. at 44.

Key among the inherent powers incidental to all courts

is the authority to “control admission to its bar and to

discipline attorneys who appear before it,” id. at 43 (citing

Ex parte Burr, 22 U.S. 529 (1824)), and, as we have noted

previously, “a federal court has the inherent power to

sanction for conduct which abuses the judicial process.”

Barnhill v. United States, 11 F.3d 1360, 1367 (7th Cir.

1993). It follows logically that a federal court’s power to

regulate and discipline attorneys appearing before it

extends to conduct by nonlawyers amounting to practicing law without a license.8

 Moreover, considering the

serious threat that the unauthorized practice of law poses

both to the integrity of the legal profession and to the

effective administration of justice, resort to the inherent

powers (which, as we stated in United States v. Giannattasio, 979 F.2d 98, 101 (7th Cir. 1992), are “rooted

considerations of institutional self-defense”) is an appropriate remedial measure.

Despite Appellants’ arguments to the contrary, the fact

that state law provides penalties for the unauthorized

practice of law does not limit by itself a federal court’s
No. 02-1334 9

9 Illinois statute provides, in relevant part, as follows:

Any person practicing, charging or receiving fees for legal

services within this state, either directly or indirectly, without being licensed to practice as herein required, is guilty

of contempt of court and shall be punished accordingly,

upon complaint being filed in any Circuit Court of this State.

Such proceedings shall be conducted in the Courts of the

respective counties where the alleged contempt has been

committed in the same manner as in cases of indirect contempt and with the right of review by the parties thereto.

The provisions of this Act shall be in addition to other remedies permitted by law and shall not be construed to deprive

courts of this State of their inherent right to punish for

contempt or to restrain the unauthorized practice of law.

705 ILL. COMP. STAT. 205/1-1 (1990) (emphasis added).

exercise of the inherent power to address the same

problem.9

 This Court has suggested that the inherent

powers are proscribed to the extent that their exercise

conflicts with available constitutional and statutory provisions. See, e.g., Corley v. Rosewood Care Ctr., Inc., 142 F.3d

1041, 1059 (7th Cir. 2002). The existence of controlling

statutory or constitutional authority alone, however, does

not preclude the court’s invocation of its inherent powers.

Chambers, 501 U.S. at 48. So long as the inherent powers are exercised in harmony with applicable statutory

or constitutional alternatives, then the latter need not

displace the former. G. Heileman Brewing Co. v. Joseph

Oat Co., 871 F.2d 648, 652 (7th Cir. 1989) (en banc). Here,

we find no conflict between the district court’s imposition

of sanctions pursuant to the exercise of its inherent power

and the state means of enforcing the requirement that

one obtain a license in order to practice law in Illinois,

noting the state provision explicitly reserving Illinois courts’

“inherent right to punish for contempt or to restrain the

unauthorized practice of law.” 705 ILL. COMP. STAT. 205/1-1

(1990).
10 No. 02-1334

10 One commentator has aptly described the practice of law in the

following general terms:

Decisions indicate that the practice of law generally includes

not only the conduct of litigation and appearances in court,

but also the preparation of pleadings and other papers

incident to any action or special proceeding in any court

or other judicial body; conveyancing, the preparation of all

legal instruments of all kinds whereby a legal right is

secured, the rendering of opinions as to the validity or

invalidity or the title to real or personal property, the giving

of any legal advice, and any action for others in any matter connected with the law.

(continued...)

Finally, we find no fault with the district court’s assumption of the roles of complainant, prosecutor, judge, and jury

in reaching its determination that Appellants were engaged in the unauthorized practice of law, since the court’s

inherent authority includes the “power to conduct independent investigations in order to determine whether the

court has been the victim of fraud or deceit.” Winkler v. Eli

Lilly & Co., 101 F.3d 1196, 1200 n.2 (7th Cir. 1996). Any

unauthorized practice of law impacting federal court

proceedings necessarily raises the specter of interference

with that court’s function in a manner effectively indistinguishable from fraud or deceit. The inherent power of

the federal courts is thus a proper basis for the imposition

of sanctions for the unauthorized practice of law.

II. Unauthorized Practice Finding

Appellants also challenge the sufficiency of the evidence

upon which the district court based its finding that they

engaged in the unauthorized practice of law. The issue

of whether Appellants engaged in the unauthorized practice of law requires us to examine, as a preliminary matter, what constitutes the practice of law.10 In Illinois, the
No. 02-1334 11

10 (...continued)

Comment, Unauthorized Practice of Law: Remedial Procedures, 1

DEPAUL L. REV. 108 (1952) (internal citation omitted).

11 In fact, the prospective restrictions on Appellants’ conduct in

the Southern District of Illinois set forth in the October 2001

order suggest as much.

practice of law includes, at a minimum, representation provided in court proceedings along with any services rendered incident thereto, even if rendered out of court. In re

Herrera, 194 B.R. 178 (Bankr. N.D. Ill. 1996); People v.

Peters, 141 N.E.2d 9 (Ill. 1957). More generally, providing

any advice or other service “requiring the use of any legal

skill or knowledge, . . . the legal effect of which, under the

facts and conditions involved, must be carefully determined,” amounts to practicing law. Peters, 141 N.E.2d at

11. Only under the direct supervision of a licensed attorney may certain of these functions be performed by a

paralegal. Absent the imprimatur of meaningful attorney

supervision, any legal advice or other legal service provided by a nonlawyer constitutes the unauthorized practice of law.

What the district court found problematic about

Appellants’ activities was not the performance of those

permitted paralegal functions. The preparation of pretrial

motions and other services offered by Appellants, including recommendations vis-a-vis litigation strategy, might

have been permissible if performed at the request and

under the direction of a lawyer.11 Rather, what troubled

Chief Judge Murphy was the reality that Appellants

operated without—and, in some cases, in contravention

of—attorney oversight. Appellants’ promotional literature

alone, while not the only evidence upon which the district court relied, is a sufficient evidentiary basis for finding that Appellants’ conduct improperly inverted the at-
12 No. 02-1334

12 The following passage from NLPA’s promotional materials is

illustrative:

A word of warning: If, after having reviewed this information, you are interested in having [NLPA] assist your

counsel with your case, keep in mind that many attorneys

become extremely paranoid when they know that their

client is considering asking NLPA to become involved in

working on the “defense team.” [I]f your attorney appears

reluctant to have NLPA become involved, or if he tells you

he “knows everything” and that there is nothing NLPA could

bring to your defense team, you need to give serious

thought to his real motive for making such a statement . . . .

Keep in mind, this is your life and you as the defendant

have every right to have as much assistance from any

source that you deem appropriate. [sic] Your attorney

works for you, you do not work for him. Therefore, should

you decide to have NLPA assist you, when you speak with

your attorney about this matter, be firm in explaining to

him that although you appreciate all that he is doing to

try and help, you want to have NLPA involved in the case

and that you, as his client, are instructing him to work

with us.

(Emphasis in original).

torney-client-paralegal dynamic.12 Once Appellants, through

their aggressive marketing techniques, undermined a

defendant’s confidence in his or her counsel, and then

exploited those doubts to make strategic recommendations to—and, in the words of the district court, “to foist

their services upon”—both client and counsel, any appearance of attorney supervision became meaningless. The

district court therefore properly determined that Appellants were engaged in the unauthorized practice of law.

III. Imposition of Sanctions

Having determined the propriety of the district court’s

invocation of its inherent powers and its finding of unau-
No. 02-1334 13

thorized practice of law, we now review the sanctions

specifically imposed, which we will set aside only upon a

finding that the district court abused its discretion. Cleveland Hair Clinic, Inc. v. Puig, 200 F.3d 1063, 1066 (7th

Cir. 2000).

Because the inherent powers are so broad in scope, they

are to be narrowly tailored in their application. Chambers,

501 U.S. at 44-45 (stating that discretion requires a

court “to fashion an appropriate sanction for conduct

which abuses the judicial process.”); see also Diettrich v.

Northwest Airlines, Inc., 168 F.3d 961, 964 (7th Cir. 1999)

(stating that, when resorting exercise of the inherent

power, “as in all cases, the punishment must fit the

crime.”). In other words, a federal court’s wide discretion

as to whether to invoke the inherent powers is tempered

by its rather limited discretion as to how it exercises them.

Careful, case-specific consideration is owed therefore not

only to the character of the sanctionable conduct, but

also to the nature and purpose of the sanctions.

Of particular relevance here is the apparent absence of

any bad faith on the part of Appellants, despite the

dubiousness—both legally and ethically—of their “paralegal” activities. Generally, the harshest of sanctions based

on inherent powers have been upheld only in situations

involving bad faith, contumacy, or egregious misconduct.

Chambers, 501 U.S. at 45-46; see also Kovilic, 106 F.3d

at 773. Conversely, misconduct that is merely questionable warrants a less severe sanction (no matter how

“dimwitted” the offenders or how badly they “muck up the

cases”). In its finding that Appellants were engaged in the

unauthorized practice of law, the district court did not

indicate that they acted in bad faith; nor do we discern

any such indication. Moreover, we note that the record of

the district court proceedings reflects Appellants’ sustained

cooperation throughout. These factors militate in favor

of imposing more moderate sanctions and, in fact, may
14 No. 02-1334

13 Rather than raise this question, Appellants simply argue

that the imposition of punitive sanctions in the absence of a

contempt finding amounts to a violation of their constitutional

right to due process. However, because we find that the punitive

sanctions exceed the discretion of the district court, and modify

them accordingly, we need not reach the constitutional issue.

14 Leaving aside for the moment the various distinctions in the

law of contempt of court (civil, criminal, direct, constructive,

etc.), we note only that contempt is a possible indicator of a court’s

intent to punish.

have influenced the district court’s decision to discharge

the order to show cause without a contempt finding.

Appellants argue, and we agree, that the imposition of

punitive sanctions is inconsistent with a finding that they

were not in contempt of court. This argument begs the

central question of our inquiry into the purpose and nature of the sanctions: Are the monetary sanctions imposed here punitive in nature?13 Had Chief Judge Murphy

held Appellants in contempt of court, as he might have,

this Court could have inferred some punitive intent on

his part.14 Instead, as we noted above, he placed prospective restrictions on their activities and ordered the return

of fees received. To the extent that these measures are

remedial in nature, we find that the district court acted

within its discretion. The restrictions and the return of

fees to clients or their families are consistent with this

finding. However, we regard the order to disburse certain

fees to the Fund, insofar as it does not compensate the

individuals who paid for unauthorized legal services, and

in light of the purpose of the Fund, to be punitive in nature. In short, the fees to be disbursed to the Fund amount

to a $7000 fine. Considering that (i) the district court

made no contempt finding, (ii) Appellants’ misconduct

was not in bad faith, and (iii) the sanctions imposed tend

to be more remedial than punitive with the exception of
No. 02-1334 15

the $7000 ordered to be disbursed to the fund, we find that

the district court abused its discretion with respect to that

amount. In a manner consistent with the disposition of

this appeal, the Clerk of Court for the Southern District

of Illinois is hereby directed to return $7000 to Appellants.

CONCLUSION

The district court properly invoked its inherent powers to

determine that Appellants were engaged in the unauthorized practice of law in the Southern District of Illinois

and to impose remedial sanctions therefor. However, the

court abused its discretion in imposing punitive sanctions

in the amount of $7000. For these reasons, we AFFIRM the

orders of the district court in part, and REVERSE that

portion of its order directing Appellants to pay into the

court, and the Clerk of Court to disburse to the Fund, $7000

in fees received.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-24-03