Lawrence E. Lupien v. Harold W. Clarke

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-3200
___________
United States of America, *
*
Plaintiff, *
*
v. *
*
Cuauhtemoc Gonzalez-Lopez, *
also known as Tomas, *
*
Defendant. *
____________________ *
*
Joseph Low, IV, *
*
Appellant, *
*
v. *
*
John Fahle, *
*
Appellee. *
___________
Appeals from the United States
No. 03-3201 District Court for the
___________ Eastern District of Missouri.
United States of America, *
*
Plaintiff, *
*

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1The Honorable Richard S. Arnold died on September 23, 2004. The case has
been decided by the remaining members of the panel pursuant to 28 U.S.C. § 46(d)
and 8th Cir. R. 47E.
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v. *
*
Cuauhtemoc Gonzalez-Lopez, *
also known as Tomas, *
*
Defendant. *
____________________ *
*
Karl W. Dickhaus, *
*
Appellant, *
*
v. *
*
John D. Stobbs, II, *
*
Appellee. *
___________
Submitted: September 16, 2004
Filed: March 8, 2005
___________
Before WOLLMAN, RICHARD S. ARNOLD,1 and BYE, Circuit Judges.
___________
BYE, Circuit Judge.
During the criminal prosecution of Cuauhtemoc Gonzalez-Lopez, the district
court, acting under its inherent power, imposed sanctions against Joseph Low, the
attorney retained by the defendant, after finding he violated the rules of professional

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2The facts and issues in Low's appeal are closely related to the facts and issues
in our court's opinion addressing Cuauhtemoc Gonzalez-Lopez's direct appeal of his
criminal conviction. See United States v. Cuauhtemoc Gonzalez-Lopez, No. 03-3487
(8th Cir. 2005).
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conduct. In addition to imposing sanctions against Low, the district court imposed
sanctions against Low's attorney, Karl Dickhaus, for Dickhaus's conduct in procuring
the subpoena of a witness to testify at the hearing for sanctions against Low. Low
and Dickhaus appeal the sanctions imposed against them. We reverse both orders of
sanctions.
I
We begin with the facts relevant to attorney Low's appeal.2 After Gonzalez-
Lopez was charged with violating federal drug laws in the Eastern District of
Missouri on January 7, 2003, his family retained Texas attorney John Fahle to
represent him in the criminal proceeding. Fahle entered his appearance in the case
at Gonzalez-Lopez's detention hearing and arraignment on January 8, 2003. Shortly
after hiring Fahle, Gonzalez-Lopez contacted California attorney Joseph Low to
discuss the possibility of retaining Low to represent him in the criminal case. At
Gonzalez-Lopez's request, Low met with him at the jail in Farmington, Missouri,
between January 8 and 10, 2003. Within ten days of this meeting, Gonzalez-Lopez
hired Low.
On February 18, 2003, Low contacted Fahle and informed him that he too was
representing Gonzalez-Lopez in the criminal prosecution. Prior to this conversation,
Fahle had heard rumors of Gonzalez-Lopez having retained additional counsel. Both
Low and Fahle attended an evidentiary hearing before the magistrate judge on March
4, 2003. At this time, Low had not yet entered his appearance on behalf of Gonzalez-
Lopez. Initially the magistrate judge permitted Low to participate in the evidentiary
hearing based on Low's assurance he would file a motion to appear pro hac vice. At

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some point during the hearing, however, Low was accused of violating a rule
restricting the cross-examination of a witness to one lawyer by passing notes to Fahle.
This prompted the magistrate judge to rescind the provisional approval and Low was
not permitted to participate in the rest of the hearing.
On March 11, 2003, Gonzalez-Lopez asked Fahle to stop representing him and
told Fahle he wanted Low to be his sole attorney. Low filed a motion to appear pro
hac vice on March 17, 2003. The district court denied the motion the next day
without providing oral or written explanation. Low filed another application for
admission pro hac vice on April 14, 2003. The district court denied this motion as
well.
Next, on April 25, 2003, Fahle filed motions for a continuance, to withdraw,
and for a show cause hearing. In the motion for a show cause hearing, Fahle accused
Low of violating the rules of professional conduct, specifically Rule 4-4.2 of the
Missouri Rules of Professional Conduct, by communicating with Gonzalez-Lopez
about the criminal prosecution without Fahle's permission even though Low knew
Fahle already represented Gonzalez-Lopez in the matter. According to Fahle,
Gonzalez-Lopez would not cooperate with him because Low represented to
Gonzalez-Lopez that Low was his attorney. Low filed a motion to strike Fahle's
motion for a show cause hearing, which the district court denied.
A hearing was held on Fahle's motion for sanctions against Low on June 20,
2003. At the hearing, Fahle testified that Low had met with Gonzalez-Lopez without
his permission. Low testified of having met and consulted with Gonzalez-Lopez, but
only after having been telephoned by him and asking Low to represent him in the
criminal prosecution. Low also testified he did not know Gonzalez-Lopez was
already represented during this conversation and could not recall exactly when he
learned Fahle was representing him. At one point during the hearing, Low testified
Gonzalez-Lopez gave him Fahle's name but stated that he told Gonzalez-Lopez to

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contact Fahle himself. Low told him he would contact Fahle only after
Gonzalez-Lopez worked things out with Fahle.
At the hearing, the district court also heard evidence submitted by Tiffany
Becker, the Assistant United States Attorney who was prosecuting the case against
Gonzalez-Lopez. Becker presented evidence of allegedly similar conduct by Low in
an earlier case which had been tried before the same district court judge, United
States v. Serrano et al., No. 4:01CR450 JCH. Low testified of having not been
admonished, sanctioned, or threatened with sanctions in the Serrano case.
After the hearing, on August 26, 2003, the district court issued a memorandum
and order imposing sanctions against Low and awarding Fahle attorney's fees
associated with the motions filed on April 25, 2003. The district court's findings are
summarized in the following paragraph:
The Court finds that Mr. Low communicated with Defendant,
knowing Defendant was represented by Mr. Fahle, without the consent
of Mr. Fahle. Furthermore, Mr. Low's testimony at the June 20, 2003
hearing establishes that he did work on the case after he met with
Defendant but before he contacted Mr. Fahle. Thus, the Court finds that
his communications with Defendant during that time period were
regarding the subject of the representation.
The court also noted: "Furthermore, Mr. Low's past conduct before this Court in the
Serrano case demonstrates a disregard for the local rules concerning communications
with represented parties."
II
The facts relevant to attorney Dickhaus's appeal are as follows: On May 16,
2003, Dickhaus entered his appearance to represent Low in the June 20, 2003, hearing

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initiated by Fahle's motion for sanctions against Low. The district court directed
Fahle to file a pre-hearing brief discussing the legal basis for his motion by June 11,
2003. Low filed a response brief on June 18, 2003, and Fahle filed a reply on the
morning of the hearing.
In Fahle's brief, he made the following assertion: "Counsel has heard that it
happened at least one other time in this case when Mr. Low apparently interviewed
a co-defendant who was represented by the federal public defender." As it turns out,
the federal public defender never alleged of Low speaking to her client. Knowing
this, Dickhaus determined Fahle must have been referring to a different attorney, John
Stobbs, who had represented one of the defendants in the Serrano case. In the
Serrano case, Stobbs had sent a letter to Low, in which he copied the district court
and all other counsel in the multi-defendant case, which implied Low had tried to
contact defendants represented by counsel without obtaining permission from the
defendants' attorneys. In the letter, dated March 10, 2003, Stobbs directed Low not
to speak to his client. Thus, Dickhaus concluded what Fahle meant to write in his
brief was that Low had communicated with a client represented by Stobbs, not the
federal public defender.
Dickhaus sought to present evidence at the hearing for sanctions against Low
of Low not having talked to defendants without their attorneys' permission, including
an affidavit from Stobbs which stated Low did not speak to Stobbs's client, Jorge
Guillen, in the Serrano case. It is this endeavor to obtain an affidavit from Stobbs
from which the sanctions against Dickhaus and ensuing appeal arise.
Dickhaus wrote and telephoned Stobbs in an attempt to obtain an affidavit from
Stobbs stating Low had not contacted Guillen without Stobbs's permission.
According to Dickhaus, he offered the option of an affidavit out of courtesy as an
alternative to subpoenaing Stobbs to the hearing. After Stobbs did not return
Dickhaus's phone calls or the letter he faxed to him, on June 19, 2003, the day before

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the hearing, Dickhaus caused a process server to try to serve a subpoena on Stobbs
at his office. Later that day, Stobbs's secretary faxed to Dickhaus's office an affidavit,
which stated, in relevant part:
4. On March 7, 2003 I received a telephone call from attorney Joe
Low[] regarding Mr. Guillen's case.
. . . .
7. Prior to receiving a telephone call from Mr. Low[], I had been
told by attorney Grant Shostak that he had participated in a trial where
attorney Low[] represented a co-defendant.
8. Mr. Shostak told me that Mr. Low[] had spoken to his client
without Mr. Shostak's authority or permission.
9. Because of this, I became concerned that Mr. Low[] would try
to speak to Mr. Guillen without my permission.
10. Since we were having trouble speaking on the telephone, I
decided to write Mr. Low[] a letter. On March 10, 2003 I wrote Mr.
Low[] a letter explaining to him that under no circumstances did he or
would he have my permission to speak to Mr. Guillen.
11. I was concerned that Mr. Low[] would have spoken to my
client had I not written him specifically advising him that he could not
speak to my client.
12. Because my client began cooperating early on, I expected him
to enter a plea of guilty which meant that I would not have been present
at any trial where Mr. Guillen testified. In the previous trial, Mr. Low[]
sprung on Mr. Shostak and this Honorable Court that he had spoken to
Mr. Shostak's client without Mr. Shostak's permission during the trial.

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13. Since I would not be present at trial, I wanted to avoid this
type of "surprise" and for this reason I carbon copied Judge Hamilton,
Magistrate Mummert, and Assistant U.S. Attorneys Becker and Hoag.
14. I believe that in part because of the letter I wrote, Mr. Low[]
did not attempt to speak to Mr. Guillen.
There is some uncertainty in the record about what happened immediately after
Dickhaus received the above affidavit. According to Dickhaus, that same day he
faxed Stobbs a letter requesting Stobbs remove the portions of the affidavit
containing the unsolicited statements "containing [Stobbs's] opinion of what might
have or would have happened." The letter also stated that if Stobbs would not revise
the affidavit as requested, then it was Dickhaus's intent later that evening to serve
Stobbs with a subpoena to attend the hearing for the following day. According to
Stobbs, Dickhaus phoned Stobbs's secretary and told her the affidavit was
unsatisfactory in an angry, rude, and demeaning fashion, and told her unless the
affidavit was done to his liking, a subpoena would be served. Stobbs contends he
refused to change the affidavit because he felt he had complied with Dickhaus's
request and because he believed Low's actions needed to be placed in proper context.
He also states he did not call Dickhaus back because of the demeaning and rude way
Dickhaus treated his secretary.
After receiving no further response from Stobbs, Dickhaus sent his office
assistant with another subpoena to Stobbs's home address. When Dickhaus's process
server arrived at the residence, she discovered the home was vacant and for sale.
There was, however, a phone number on the "for sale" sign. Posing as an interested
buyer, Dickhaus's process server called the number. Because Stobbs had just arrived
home from work when the call came in, Stobbs's wife, who was six months pregnant
and on partial bed rest, decided to show the house. Stobbs's wife told Stobbs she
would be back in five minutes. According to Stobbs, after waiting about twenty to
twenty-five minutes for his wife to return home, he became fearful about what may

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have happened to his pregnant wife. Stobbs, with his two young children, drove six
blocks to his old house to check on his wife. After arriving at the old house and upon
stepping out of the car, Stobbs was served with the subpoena. The process server
provided Stobbs with another opportunity of providing a redacted affidavit instead
of appearing at the hearing.
That night, Stobbs drafted a motion to quash the "bogus subpoena" and for
sanctions and contempt, in which he accused Dickhaus of "ball bat" tactics, "sleaze
and pettyfoggery," and which he filed the next morning before the hearing on the
motion for sanctions against Low. At the hearing, the district court quashed the
subpoena on the grounds that Dickhaus used a civil subpoena form in a criminal case.
The district court set a hearing date of July 22, 2003, for Stobbs's motion for
sanctions against Dickhaus. After the hearing, on August 26, 2003, the district court
ruled on Stobbs's motion. The order denied Stobbs's motions for contempt and
sanctions, finding Dickhaus had not violated a court order. However, the district
court found Dickhaus acted in "bad faith" and his behavior in the procurement of the
subpoena was "vexatious." According to the court, "the proper recourse would have
been to move to strike the objectionable portions [of Stobbs's proffered affidavit]."
Acting under its inherent power, the court ordered Dickhaus to pay Stobbs's attorney's
fees in the amount of $2,750.
III
We generally review a district court's imposition of sanctions pursuant to its
inherent power for an abuse of discretion. Chambers v. NASCO, Inc., 501 U.S. 32,
55 (1991) (citations omitted); Bass v. General Motors Corp., 150 F.3d 842, 851 (8th
Cir. 1998) (citation omitted). However, where the district court's imposition of
sanctions against an attorney turns on an interpretation of the law, as in Low's case,
we review the decision to impose sanctions de novo. See Lamb Eng'g & Constr. Co.
v. Neb. Pub. Power Dist., 103 F.3d 1422, 1434 (8th Cir. 1997) (citing Actors' Equity

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Ass'n v. Am. Dinner Theatre Inst., 802 F.2d 1038, 1042 (8th Cir. 1986)). In other
words, "[a] district court by definition abuses its discretion when it makes an error of
law." Computrol, Inc. v. Newtrend, L.P., 203 F.3d 1064, 1070 (8th Cir. 2000) (citing
Koon v. United States, 518 U.S. 81, 100 (1996)).
IV
We begin our discussion by addressing the sanctions imposed against Low. He
raised two arguments to challenge the order of sanctions. He argued the district court
lacked jurisdiction to impose sanctions against him because the sanctioned conduct
was based on the alleged civil tort of interference with a professional relationship.
He also challenged the order of sanctions on the merits.
At the outset, we reject Low's argument about the district court lacking
jurisdiction to sanction him for his conduct in the criminal proceeding. A district
court has authority under its inherent power to assess attorney's fees against a party
which has "'acted in bad faith, vexatiously, wantonly, or for oppressive reasons.'"
Kelly v. Golden, 352 F.3d 344, 352 (8th Cir. 2003) (quoting Chambers, 501 U.S. at
45-46, and citing Hoover v. Armco, Inc., 915 F.2d 355, 357 (8th Cir. 1990)). "This
inherent power is similar to the court's other powers to impose sanctions, but it is both
broader in that it may reach more litigation abuses and narrower in that it may only
be for attorney's fees." Id. (citing Chambers, 501 U.S. at 46); see also United States
v. Kouri-Perez, 187 F.3d 1, 6-7 (1st Cir. 1999). Thus, we turn to the merits of the
claim.
The Eastern District of Missouri follows the Missouri Rules of Professional
Conduct. E.D. Mo. Local R. 83-12.02. Missouri Rule 4-4.2 provides: "In
representing a client, a lawyer shall not communicate about the subject of the
representation with a party the lawyer knows to be represented by another lawyer in
the matter, unless the lawyer has the consent of the other lawyer or is authorized by

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law to do so." Mo. Rules of Prof'l Conduct R. 4-4.2. The district court determined
Low violated Missouri Rule 4-4.2 after finding Low communicated with
Gonzalez-Lopez about his case without Fahle's consent. In reaching this conclusion,
the district court interpreted Rule 4-4.2 to prohibit an attorney from communicating
with a represented client without first obtaining permission from the client's existing
counsel, even if the attorney is not representing any other party in the matter. The
district court based its interpretation of Rule 4-4.2 on the fact that the Missouri
Supreme Court had not adopted a non-uniform amendment to ABA Model Rule 4.2.
According to the court, the referenced amendment provides: "When a person . . . that
is represented by a lawyer in a matter seeks advice regarding that matter from another
lawyer, the second lawyer is not prohibited by paragraph (a) from giving such advice
without notifying or seeking consent from the first lawyer." We disagree with the
district court's interpretation of Missouri Rule 4-4.2.
Rule 4-4.2 consists of one sentence, which begins with the clause, "In
representing a client." It is evident from the inclusion of the words "In representing
a client" that the remainder of the text of Rule 4-4.2, which prohibits unauthorized
communication with represented parties in a matter, is limited to attorneys who are
involved in the matter and does not apply to an attorney not so involved. The Rule's
limited applicability to attorneys who are involved in the case is also evident from an
examination of the purpose of the Rule. Missouri Rule 4-4.2 is "essentially identical"
to Rule 4.2 of the ABA Model Rules. Smith v. Kansas City S. Ry., 87 S.W.3d 266,
271 (Mo. Ct. App. 2002). The purpose of Rule 4.2, which can be found in the first
comment to Rule 4.2, is to "protect[] a person who has chosen to be represented by
a lawyer in a matter against possible overreaching by other lawyers who are
participating in the matter, interference by those lawyers with the client-lawyer
relationship and the uncounselled disclosure of information relating to the
representation." ABA Model Rules of Prof'l Conduct R. 4.2 cmt. 1 (emphasis added).
The comments further provide: "Nor does this Rule preclude communication with
a represented person who is seeking advice from a lawyer who is not otherwise

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representing a client in the matter. . . ." ABA Model Rules of Prof'l Conduct R. 4.2
cmt. 4.
Furthermore, the district court's interpretation of Rule 4-4.2 would prevent
parties in litigation from freely consulting with outside attorneys to obtain additional
advice about their cases, hire additional counsel, or even hire different counsel. In
the context of criminal prosecutions, the district court's interpretation of Rule 4-4.2
unjustifiably interferes with the criminal defendant's qualified right under the Sixth
Amendment to be represented by counsel of the defendant's choosing, as illustrated
in the underlying criminal case. See United States v. Cuauhtemoc Gonzalez-Lopez,
No. 03-3487 (8th Cir. 2005). The Sixth Amendment right to be represented by
counsel of one's choice in a criminal proceeding is discussed at length therein.
Our interpretation of Missouri Rule 4-4.2 is also consistent with an advisory
opinion issued by the Legal Ethics Counsel of the Missouri Bar. The advisory
opinion discusses several scenarios strikingly similar to the events which took place
in the present case.
QUESTION: Attorney frequently receives calls from potential clients
who are currently represented by another attorney. How should
Attorney handle this situation? May Attorney invite the potential client
to come to Attorney's office for a consultation? May Attorney offer the
potential client a contract if that is what the potential client desires?
May Attorney take over the representation of the matter if that is what
the potential client asks of Attorney? May Attorney assist the new client
in drafting a letter to the other attorney indicating that the client wishes
to terminate the relationship if it is at the request of the client?
ANSWER: Attorney may talk with and consult with a person who is
already represented by counsel but who is seeking legal advice from
Attorney regarding the matter. If the person chooses to hire Attorney,
Attorney may enter into a contract with that person and assume the

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representation. Attorney may also assist the client with informing the
other attorney that the client is terminating that attorney-client
relationship. Rule 4-4.2 does not apply to this situation because
Attorney is not representing a client in Attorney's communications with
the person who is seeking to consult with Attorney. This opinion only
addresses the Rules of Professional Conduct. It does not address any
legal issues that may be involved in termination of the attorney-client
relationship.
Mo. Bar Adm. Advisory Opinion No. 980173. Fahle argues Low waived the right to
present the advisory opinion on appeal because Low did not present it in the district
court proceeding. We disagree. It is undisputed Low argued in district court his
conduct did not violate Missouri Rule 4-4.2.
In sum, we hold Rule 4-4.2 does not prohibit an attorney who is contacted by
a party to litigation from communicating with the party about the case without first
obtaining permission from the party's existing counsel when the attorney is not
involved in the matter. It is undisputed Low was not representing any party in the
criminal prosecution when he and Gonzalez-Lopez engaged in discussions about the
possibility of Low taking on the representation. We therefore reverse the order
imposing sanctions against Low.
V
Our discussion next turns to the sanctions imposed against Dickhaus. He raises
the following three arguments on appeal: 1) the district court erred in awarding
attorney fees to an attorney who appeared pro se; 2) the district court's findings that
Dickhaus's conduct was "in bad faith" and "vexatious" were an abuse of discretion;
and 3) the district court abused its discretion in the amount of attorney's fees awarded.
We address only Dickhaus's challenge of the district court's findings that his
procurement of the subpoena of Stobbs was "in bad faith" and "vexatious."

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The district court found Dickhaus acted in bad faith by subpoenaing Stobbs to
the hearing for sanctions against Low. The only apparent basis for concluding
Dickhaus acted in bad faith was the district court's finding that "the proper recourse
would have been to move to strike the objectionable portions [of Stobbs's proffered
affidavit]." Additionally, the district court found Dickhaus's manner of serving
Stobbs a subpoena "at the eleventh hour" as being vexatious and patently oppressive.
With respect to Dickhaus's decision to subpoena Stobbs, Dickhaus argues he
should not have been required to submit an affidavit containing extraneous,
inadmissible material containing invective and innuendo against his client, noting his
professional obligation to provide his client, Low, with zealous representation. He
points out it was not guaranteed the district court would have granted a motion to
strike the contested portions of Stobbs's affidavit, and argues even if the motion to
strike was granted, the negative assertions would be in the court's mind. With respect
to the district court's finding Dickhaus acted vexatiously in the manner of service, he
asserts it is common to subpoena an individual at home and the method he used to
serve Stobbs is a common method when dealing with an individual who appears to
be attempting to dodge service.
Although we do not necessarily agree with Dickhaus that his method of service
is one which is commonly followed, we do not believe the record supports a finding
of vexatious, bad faith conduct. There is no evidence Dickhaus knew Stobbs's wife
was pregnant and bed-ridden or that he knew Stobbs would send his wife to show the
house. Furthermore, we have considerable difficulty understanding the district court's
finding of Dickhaus being required to present a redacted affidavit rather than call
Stobbs as a witness at the hearing. We also do not understand how Dickhaus's
decision to subpoena Stobbs instead of presenting a redacted affidavit demonstrates
bad faith.

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3Our holding should in no way be construed as approving the manner in which
Dickhaus conducted himself in his communications with Stobbs. If in fact Dickhaus
treated Stobbs's secretary in an angry, rude, and demeaning fashion during his
telephone conversations with her, small wonder it is that Stobbs declined to respond
to the call. The need for the subpoena, then, may well have been the result of
Dickhaus's unprofessional conduct rather than, as he would characterize it, the need
to fulfill his professional obligation to provide his client with zealous representation.
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We hold it was an abuse of discretion for the district court to impose sanctions
against Dickhaus. The district court failed to consider Dickhaus's professional
obligation to provide Low with zealous representation within the confines of the rules
of law and ethics, see Mo. Rules of Prof'l Conduct R. 4-1.3, and failed to consider
Stobbs's conduct which could reasonably be interpreted as an attempt at dodging a
subpoena. See Aaron v. Target Corp., 357 F.3d 768, 774 (8th Cir. 2004) ("An abuse
of discretion occurs if a relevant factor that should have been given significant weight
is not considered, if an irrelevant or improper factor is considered and given
significant weight, or if a court commits a clear error of judgment in the course of
weighing proper factors.") (citation omitted). Our holding is further supported by the
inability of Stobbs's attorney at oral argument to articulate any purpose served by
sanctioning Dickhaus's conduct in procuring the subpoena of Stobbs.3
VI
The district court's order imposing sanctions against Low is reversed. The
district court's order imposing sanctions against Dickhaus is also reversed.
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