Although agreeing with the government that the defendant, James Kimsey was "no saint," the Ninth Circuit Court of Appeals agreed with Kimsey that he could not be held in contempt for failure to obey a "rule" prohibiting the unauthorized practice of law that "cannot serve as a predicate for criminal convictions."
James Kimsey was found to have assisted Frederick Rizzolo who was involved in a "contentious, scorched-earth lawsuit in which eighteen lawyers bombarded each other and the district court with over 500 pleadings," according to the court's decision. Rizzolo's attorney had already withdrawn when Kimsey began to "ghost-write" pleadings that Rizzolo filed under his own signature as a pro-se litigant. The federal magistrate judge found that Rizzolo "allowed a non-attorney to determine the legal sufficiency of the instruments filed with the Court and relied on Mr. Kimsey's judgment in applying legal knowledge to the specific issues pending in this action." He also issued an order to Kimsey to show cause as to why he should not be held in criminal contempt for engaging in the unlawful practice of law under 18 U.S.C. Section 402.
The Appellate court reversed the finding of contempt on several grounds. Firstly, the language of 402 provided a statutory right to a jury trial, which was not allowed by the judge. Secondly, the Section 402 prosecution was based upon Kimsey's failure to follow Local Rules 10-1 and 10-2 as to the unauthorized practice of law. The court held that "Section 402 does not permit convictions for criminal contempt for violations of standing rules of court... It is... exceedingly unlikely that Congress intended to authorize convictions of criminal contempt for disobeying ministerial, generally applicable requirements forbidding [similar acts]...without any case specific directive or warning by the district court."
Finding that to hold to the contrary would be "nonsensical," the court cited the case of Rewis v. U.S., 401 U.S. 808 (1971), which held that (A)mbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." See: United States v. Kimsey, 668 F. 3d 691 (2012).
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
United States v. Kimsey
|Cite||668 F. 3d 691 (2012)|
|Level||Court of Appeals|