* District Judge of the Southern District of Texas, sitting by designation.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 91-3441

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DOUGLAS W. COOPER, et al.,

Plaintiffs,

VERSUS

TEXACO, INC., et al.,

Defendants,

BERNEY L. STRAUSS, STRAUSS & ASSOCIATES,

and RICHARD LEE ROOT,

Movants-Appellants.

* * * * * * * * * *

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No. 91-3446

________________

IN RE: BERNEY L. STRAUSS,

Petitioner.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

_________________________

(May 1, 1992)

Before SMITH and EMILIO M. GARZA, Circuit Judges, and KENT,*

District Judge.

JERRY E. SMITH, Circuit Judge:
 

1 One of these associates was replaced in October 1990.

 

2 Indeed, Strauss instructed one associate not to attend a deposition

because Strauss could not attend.

2

I.

On April 9, 1990, Berney L. Strauss was "suspended from the

practice of law before this court" by the United States District

Court for the Eastern District of Louisiana, en banc. This court

affirmed the suspension. In re Strauss, 931 F.2d 891 (5th Cir.

Apr. 18, 1991) (per curiam) (unpublished) (No. 90-3441). At the

time of the suspension, Strauss was a practicing attorney in

Louisiana and was the sole partner and shareholder of Strauss &

Associates, a professional law corporation. After his suspension,

he hired two associates,1 who became the attorneys of record for

any and all Strauss & Associates's cases pending in the Eastern

District. 

Strauss solicited new clients, and contingency fee contracts

were entered into between Strauss & Associates and new clients in

Eastern District cases. Strauss supervised and controlled his

associates, participated in depositions,2 negotiated and approved

settlements, advised clients, and wrote letters on his professional

stationery relating to cases filed in the Eastern District. He did

not submit any papers to the court under his own name or appear in

court in the Eastern District (except to the extent that appearance

at a deposition can be deemed to be participation in a court

proceeding). 
 

3 There are three elements to contempt under 18 U.S.C. 401(3): (1) a

reasonably specific order, (2) violation of the order, and (3) the willful

intent to violate the order. United States v. Burstyn, 878 F.2d 1322, 1324

(11th Cir. 1989).

3

On March 20, 1991, after a bench trial, Strauss was found

guilty of criminal contempt for violating the suspension order. On

April 10, 1991, the district court ruled that neither Strauss, nor

Strauss & Associates, nor any lawyer working for Strauss &

Associates could collect fees for any legal work performed on

Eastern District cases after the suspension order was entered.

Strauss appeals both rulings, which bear our docket No. 91-3446

(criminal contempt) and No. 91-3441 (receipt of fees).

II.

A person may not be convicted of criminal contempt for

violating an order unless that order is clear and unambiguous.

United States v. O'Quinn, 913 F.2d 221, 222 (5th Cir. 1990) (per

curiam).3 Any ambiguity must be resolved in favor of the defendant. Id. (citing NBA Properties v. Gold, 895 F.2d 30, 32 (1st

Cir. 1990)). Strauss contends that the order was vague.

We find that the suspension order was unambiguous and that no

reasonable attorney could fail to understand it. Local Disciplinary Rule 20.101E of the Eastern District of Louisiana, entitled

"Practicing Before Admission or During Suspension," provides,

Any person who exercises in any proceeding in this court

any of the privileges of a member of the bar or who

pretends to be entitled to do so before his or her

admission to the bar of this court, or during his or her

disbarment or suspension, is in contempt of court and

subjects himself or herself to disciplinary action.
4

Since his suspension, Strauss consistently has exercised

privileges of a member of the bar and has pretended to be entitled

to do so. He participated in several depositions, which are

proceedings before the court. He attended the depositions as the

supervising attorney, defended a deposition alone, and advised a

client to answer a question the client had refused to answer.

Strauss portrayed his associates as assisting in Eastern

District cases; he wrote five letters relating to Eastern District

cases on Strauss & Associates letterhead and signed these in his

capacity as partner. He negotiated and approved settlements; no

settlement could be issued without his authorization. Finally,

despite his intimate involvement in the cases, Strauss took no

precautions in his correspondence, appearances at depositions, or

negotiations with opposing counsel to explain that he was participating in a limited role. No attorney reasonably could have

believed that these actions were consistent with an order of

suspension. See FTC v. Gladstone, 450 F.2d 913, 914-15 (5th Cir.

1971) (contempt conviction upheld where attorney could not have

believed his actions complied with court order).

Strauss argues that suspension is similar to the status of an

attorney not yet admitted to practice and that, as an attorney in

good standing in other jurisdictions, he should have been permitted

to participate in depositions, settlements, and any activity other

than appearing before the court. To the contrary, however,

suspension is a temporary disbarment, and Strauss reasonably could

not have believed otherwise. A cursory glance at Black's Law
5

Dictionary 1447 (6th ed. 1990) would have revealed to Strauss that

a suspension is a "temporary . . . debarring." The Local Rules of

the Eastern District of Louisiana also indicate that suspended

attorneys and visiting attorneys are treated quite differently.

Local Rule 20.06 provides that visiting attorneys may participate

in Eastern District cases if certain conditions are met. The local

rules group suspended and disbarred attorneys together, see, e.g.,

Local Rule 20.10M, and make no provision for practice during

suspension. Interpreting a similar order of suspension, the

Third Circuit held that a suspended attorney may continue to work

on cases in the jurisdiction from which he is suspended only in the

capacity of a law clerk. In re Mitchell, 901 F.2d 1179, 1181-89

(3d Cir. 1990). Reasoning that Mitchell was the first case

interpreting a suspension order and that there was significant

evidence that the defendants had acted in good faith, the Third

Circuit applied its holding prospectively. 

Mitchell persuades us that a suspended attorney may act only

as a law clerk, but we decline to hold that the application of this

rule is prospective only. Unlike the defendants in Mitchell,

Strauss ignored the blanket language of Local Disciplinary Rule

20.101E and the fact that the only reported federal case discussing

suspension forbade his actions; nor is there any evidence that he

acted in good faith. These factors distinguish the instant case

from Mitchell, and we therefore apply our holding to Strauss. 
 

4 Strauss did not cite the appropriate source of jurisdiction over this

appeal in his brief. Since the April 10, 1991, order continued an injunction,

we have jurisdiction over the appeal under 28 U.S.C. § 1292(1) (West Supp.

1991).

6

III.

Strauss seems to challenge some of the district court's

factual findings detailing his violation of the suspension order

and the sufficiency of the evidence that he intentionally violated

the suspension order. We have reviewed the record and conclude

that these contentions are plainly without merit.

IV.

Strauss also appeals the order denying any legal fees to

Strauss & Associates for work performed after the suspension order

on six Eastern District cases.4 The clients in all six cases have

entered contingency fee contracts with Strauss & Associates; three

were clients at the time of the suspension order, and three others

became clients after the suspension order was entered. The

district court held that Strauss was entitled to recover quantum

meruit fees for work performed on the three pre-existing cases

before he was suspended but that he could recover no fees from the

three cases he assumed after the suspension order. We agree.

Strauss is the sole shareholder in Strauss & Associates and

the sole beneficiary of contingency contracts. Since Strauss was

suspended and thus forbidden from working in the capacity of

supervising attorney on any Eastern District cases, he may not

receive legal fees for performing work in violation of the order.
7

Neither Strauss nor Strauss & Associates may receive legal fees for

any work on Eastern District cases performed after April 9, 1990,

and during the period of the suspension. 

V.

For the reasons explained above, we AFFIRM the conviction of

criminal contempt in No. 91-3446 and AFFIRM the order denying legal

fees in No. 91-3441.