Reciprocal Suspension Imposed In Pennsylvania For Federal Court Sanctions
The Pennsylvania Supreme Court has imposed a two-year reciprocal suspension of an attorney based on sanctions imposed by the United States District Court for the Eastern District of Tennessee.
The findings of misconduct involve accusations against a judge and failure to abide by an Agreed Order as found by a report and recommendation (R&R).
From the district court opinion rejecting the attorney’s due process and other claims concerning the fairness of the proceedings concerning claims made against a bankruptcy court judge
Here, Schuchardt doubles-down (or more accurately, quintuples-down) on his accusations against Judge Bauknight. He has now asserted that Judge Bauknight engaged in improper ex parte communications: (1) in oral statements before the bankruptcy court; (2) in an affidavit sworn under penalty of perjury; (3) in bankruptcy court filings; (4) in his response to the complaint; and (5) here in his objections to the R&R. The “direct evidence” that Schuchardt points to is his own testimony that he exchanged various emails and phone calls with various fellow law partners, clients, and a U.S. Marshal in order to corroborate his theory that Judge Bauknight conspired against him. However, these emails and call logs only show that Schuchardt was earnest is his vain quest to vindicate his accusations against Judge Bauknight.
As to notice of charges
In sum, despite Schuchardt’s assertions to the contrary, he was made well aware of the specific instances of misconduct of which he was accused. Rather than meet each accusation, Schuchardt merely attempted to make global denials and broad claims that he has been denied due process. The Court finds Schuchardt’s second objection to be meritless.
As to the alleged violation of an Agreed Order
In addition to his failure to abide the directive to refer the aforementioned clients to other attorneys, he also undertook to represent them. Schuchardt objects on the grounds that his “legal advice” was not “representation.” Alternatively, he argues that the term “represent” is impermissibly vague, rendering this portion of the Agreed Order void.
…The R&R clearly identifies Schuchardt’s violation of the Agreed Order and the terms of the Agreed Order are not vague. The Court finds Schuchardt’s sixth objection to be meritless.
Compelled apology
The R&R does not recommend “ordering” Schuchardt to apologize as a sanction for his misconduct. It merely recommends that an apology be included in any application for early reinstatement during the term of Schuchardt’s suspension. Such a requirement for an early reinstatement application aids the Court in discerning whether Schuchardt is contrite over his misconduct and improper accusations against Judge Bauknight. Schuchardt is not being compelled to apologize in any way and is free to serve his suspension without apology. The Court finds Schuchardt’s seventh objection to be meritless.
Sanction
Schuchardt appears to have practiced law for twenty-eight years without client complaints or investigation by any Board of Professional Responsibility, apart from these circumstances. This is certainly a mitigating factor.
However, Schuchardt’s “substantial experience in the practice of law is an aggravating factor because it indicates he should be well aware of applicable expectations and standards.” In re Cowan, 620 F. Supp. 2d at 872.
Prior to the process, Judge Bauknight patiently provided progressive discipline for Schuchardt’s infractions, but Schuchardt continued in his misconduct undeterred. “It is rare for a judge to issue such a reprimand to a lawyer and for an attorney to receive one. Most attorneys would have made sure they rectified the deficiencies that concerned the judge.” In re Moncier, 550 F. Supp. 2d at 808. However, Schuchardt did not heed these warnings, which is an aggravating factor.
Throughout this process, Schuchardt has persisted in his self-justification, demonstrated no contrition, and recklessly repeated his accusations against Judge Bauknight. Schuchardt’s “lack of remorse weighs heavily against him in this proceeding.” In re Cowan, 620 F. Supp. 2d at 872. “This compels the Court to conclude Respondent will repeat the offensive behavior before judges of this court in the future.” In re Moncier, 550 F. Supp. 2d at 809. This is an aggravating factor.
Conclusion
The Court finds that Schuchardt has engaged in unprofessional and unethical conduct and violated the Tennessee Rules of Professional Conduct. For his in-court accusations against Judge Bauknight with reckless disregard as to the truth or falsity of the accusation, the Court deems it in the public interest to publicly reprimand Schuchardt. His conduct has fallen below that required of members of the bar of the Eastern District of Tennessee. Therefore, the Court REPRIMANDS Schuchardt. For his reckless accusations against Judge Bauknight, his violation of the Agreed Order dated February 9, 2018, and his pattern of incompetence below the expectations of the Tennessee Rules of Professional Conduct and this Court, the Court ORDERS that Elliott J. Schuchardt be SUSPENDED from the bar of the Eastern District of Tennessee for a period of two years commencing on December 10, 2019.
(Mike Frisch)