Opinion
Case No. 99-001, Miscellaneous Proceeding
April 15, 1999
ORDER
This matter is before the court on its Order Directing Catrina H. Mercer to Appear and Show Cause. This matter was initiated by the Bankruptcy Administrator's motion for an order directing Catrina H. Mercer to appear and show cause why she should not be held in contempt for failure to perform her legal duties and responsibilities in bankruptcy matters. The court makes the following Findings of Fact and Conclusions of Law and enters its Order:
FINDINGS OF FACT
Procedural Background
1. This is the fourth occasion upon which this court has had to consider disciplining Ms. Mercer. She first appeared before this court on January 6, 1997, in the matter of Howard Chandler, Jr., d/b/a Hoot's Outdoors, Inc., Case No. 96-32660. In that hearing, the court dismissed the Chapter 13 case for cause upon the grounds that, among other things, the corporate entity, Hoot's Outdoors, Inc., was ineligible to be a Chapter 13 debtor, and the individual debtor, Howard Chandler, Jr., failed to file the required schedules. In addition, the court imposed a sanction of $250.00 against Ms. Mercer because she failed to appear in court after causing a one hour delay in the hearing to dismiss the case.
2. The court had to once again consider disciplining Ms. Mercer on January 17, 1997, in the Chapter 13 case of Howard Chandler, Jr. and Johnna E. Chandler, d/b/a Hoot's Outdoors, Inc., Case No. 97-30083. This Chapter 13 proceeding was filed on January 13, 1997, immediately following the dismissal of the Chandlery's earlier Chapter 13 case. Once again, the court dismissed the case of Hoot's Outdoors, Inc., because the corporate entity was ineligible to be a Chapter 13 debtor and because the Chapter 13 case was filed in bad faith after having been previously dismissed. In addition, the court converted the case of the individual debtors, Howard Chandler Jr. and Johnna E. Chandler, to a case under Chapter 7 of the Bankruptcy Code upon the motion of the debtors. The debtors moved to convert after admitting, through Ms. Mercer, that they could not afford to fund a Chapter 13 plan. Finally, the presiding judge ordered additional sanctions against Ms. Mercer in the amount of $750.00 on the grounds that, among other things:
the [January 17, 1997] [h]earing was a needless waste of time because the court had previously determined in [a] prior [p]roceeding that the corporate entity [was] ineligible for relief under Chapter 13, because the individual [d]ebtors [were] converting to Chapter 7, because the filing of the . . . Chapter 13 resulted in further unnecessary delay of the foreclosure and claim and delivery proceedings that [were] pending in the Superior Court for Stanly County . . . and because the filing of the current Chapter 13 was prejudicial to Bank of Stanly . . . .
In re Howard Chandler, Jr. and Johnna E. Chandler, d/b/a Hoot's Outdoors, Inc., No. 97-30083 (Bankr. W.D.N.C. 1997). In its order sanctioning Ms. Mercer, the court warned that "any sanctionable conduct by Ms. Mercer in the future may result in proceedings to determine whether she should be disbarred from practice in this [c]ourt." Id.
3. Ms. Mercer again was required to appear before the court on June 23, 1997, and show cause why she should not be forever barred from practice before this court and why this court should not proceed to refer the matter to the U.S. District Court for further action. In this hearing, the court heard approximately two days of testimony regarding Ms. Mercer's incompetence in practicing bankruptcy law in the Western District of North Carolina. In rendering its bench order, the court summarized Ms. Mercer's conduct as follows:
[W]hat I am hearing about here is an attorney [who] is not aware of the judicial district in which she is practicing, who regularly fails to attend court hearings, who signs . . . [her] clients names [to documents], who files papers without the clients approval, who represents and takes positions in court on things as significant as conversion of a case without the clients approval, [and who] files incomplete and incorrect petitions on a regular basis that don't identify assets or fees.
In re Howard Chandler, Jr. and Johnna E. Chandler, No. 97-30083 (Bankr. W.D.N.C. 1997).
4. On account of Ms. Mercer's improper conduct, the court conditionally suspended her privilege to practice before the bankruptcy court in the Western District of North Carolina until she completed three tasks. First, the court ordered that Ms. Mercer receive three hours of instruction from the Chapter 13 Trustee on Chapter 13 practice and procedure and four hours of instruction from the Bankruptcy Administrator on Chapter 7 practice and procedure and ethics and professionalism. Second, the court instructed Ms. Mercer to submit to an evaluation by the PALS (Positive Action for Lawyers) Committee under the direction of its director, Donald Carroll. Finally, the court ordered Ms. Mercer to pay certain monetary sanctions within sixty days. The court began its bench order by articulating its hope that the sanctions it imposed upon Ms. Mercer would allow her to have a successful bankruptcy practice in the future. In this regard, the court stated the following:
The order that I enter, although I suspect it will be somewhat punitive in nature, I have concluded to do that solely for the purpose of trying to get her to the position where she can be a competent, constructive member of this bar, which is what I would like to see. I think she can contribute and can be a successful lawyer. . . . but that has not been the case here before.
In re Howard Chandler, Jr. and Johnna E. Chandler, No. 97-30083 (Bankr. W.D.N.C. 1997). In addition, the court concluded the hearing by expressing its displeasure at having had to conditionally disbar Ms. Mercer but explained that the court had no alternative but to do so. Ms. Mercer complied with the terms of the court's Order and continued to practice in this court.
Factual Background
5. March 29, 1999 marked Ms. Mercer's most recent appearance before this court for a disciplinary hearing. At the March 29, 1999, hearing on the present matter, the Bankruptcy Administrator and Ms. Mercer appeared and presented evidence to the court. As part of her evidence, the Bankruptcy Administrator called Ms. Mercer and John L. Bramlett as witnesses. In addition, various documents, including pleadings filed by Ms. Mercer in this Court, as well as complaints and judgments against Ms. Mercer, were introduced into evidence.
6. Mr. Bramlett testified that he began to receive telephone calls from Ms. Mercer's clients in November of 1998. Ricky Starnes and Gina Mitchell were the first clients to call Mr. Bramlett with complaints about Ms. Mercer. The essence of the complaints was that they had paid Ms. Mercer to prepare Chapter 7 bankruptcy petitions for them and that she had not filed the petitions, despite having had a considerable amount of time in which to do so. Mr. Bramlett testified that he contacted Ms. Mercer's office by telephone and left a message regarding the complaints. His call was returned by Jo Martin, Ms. Mercer's secretary, who told Mr. Bramlett that the petitions were ready and would be filed shortly.
Mr. Bramlett testified that a live voice never answered the telephone when he called Ms. Mercer's office and that, at times, he could not leave a message as the answering machine would cut off after the greeting.
7. Mr. Bramlett was not contacted by Mr. Starnes or Ms. Mitchell for several weeks and assumed that their petitions had been filed. In late December 1998 or early January 1999, Mr. Starnes once again contacted Mr. Bramlett and stated that he had filed a small claims action against Ms. Mercer to recover the fees he paid her to prepare and file the bankruptcy petition. Mr. Bramlett also spoke to Ms. Mitchell who confirmed that her case had not been filed. Late in January 1999 or early February 1999, Brenda Cauble contacted the Office of the Bankruptcy Administrator and voiced similar complaints concerning Ms. Mercer.
8. As a result of his contact by Ms. Mercer's clients; Mr. Bramlett prepared and filed an ex parte show cause motion asking this Court to require Ms. Mercer to appear before the court with respect to her actions in the Starnes, Mitchell, and Cauble cases. Each of the parties executed an unsworn declaration under penalty of perjury attesting to the facts set forth in the motion. The evidence presented by the Bankruptcy Administrator regarding the Starnes, Mitchell, Cauble, and two additional bankruptcy cases is presented below.
Ricky and Connie Starnes
9. Ricky and Connie Starnes contacted Ms. Mercer in May 1998 regarding the filing of a bankruptcy petition. By September 1998, the Starnes had paid Ms. Mercer in full as well as provided her with all requested information.
10. On December 29, 1998, the Starnes filed a complaint in Small Claims Court in Stanly County, North Carolina against Ms. Mercer. The substance of the allegations of this complaint was that Ms. Mercer was hired to handle a bankruptcy on May 15, 1998; that the Starnes had received different stories as to why the case had not been filed; and that they had been given a false case number. Ms. Mercer received a continuance of the initial hearing on the Starnes' complaint, was absent from the second hearing, and appeared at the third. On January 27, 1999, the Stanly County court entered a judgment against Ms. Mercer, in favor of the Starnes, for $960.00. Ms. Mercer testified that she paid, this judgment on February 15, 1999. The Starnes have subsequently filed a bankruptcy proceeding in the Middle District of North Carolina.
Gina Mitchell
11. Gina Mitchell contacted Ms. Mercer in September of 1998 regarding the filing of a bankruptcy case. Ms. Mitchell paid Ms. Mercer $1,000.00 on September 11, 1998. On October 27, 1998, Ms. Mitchell wrote Ms. Mercer and indicated that she was releasing Ms. Mercer as her attorney and requested the return of the $1,000 she had previously paid Ms. Mercer. Ms. Mercer testified that she had never seen this letter. Despite Ms. Mitchell's letter to Ms. Mercer, she paid the filing fee of $175 to Ms. Mercer's office and signed the bankruptcy forms.
12. Ms. Mercer testified that in November of 1998, Ms. Mitchell accused Ms. Mercer's secretary, Jo Martin, of giving Ms. Mitchell a false case number. Ms. Mercer checked the file and informed Ms. Mitchell that her case had not been filed. Ms. Mercer further testified that she confronted Jo Martin, who adamantly denied giving Ms. Mitchell a false case number. Ms. Mercer stated that she did not suspect that anything was wrong at that time, nor did she investigate the matter further. Ms. Mercer ultimately filed Gina Mitchell's bankruptcy case on March 4, 1999, more than twenty days after the filing of the Bankruptcy Administrator's motion which outlined the complaint against Mercer and nearly seven months after Ms. Mitchell paid Ms. Mercer to file the petition.
13. In addition to the unexplained delay in filing Ms. Mitchell's bankruptcy case, there were fundamental problems with the petition once it was filed. For example, Gina Mitchell's petition, No. 99-30530, checked the box regarding venue which indicates that the debtor has been domiciled or has had a residence, principal place of business, or principal assets in this District for 180 days immediately preceding the date of this petition or for a longer part of such 180 days than in any other District. Ms. Mitchell's petition, schedules, and statements indicate that she currently (and for the two years prior to filing her bankruptcy petition) resides in the Middle District of North Carolina. In addition, Ms. Mercer did not file the Statement of Financial Affairs (Form 7) nor the Statement of Intention (Form 8) with Ms. Mitchell's petition. Finally, the evidence presented by the Bankruptcy Administrator showed that January 20, 1999, was the date next to Ms. Mitchell's signature, while February 12, 1999, was the date next to Ms. Mercer's signature.
Brenda Cauble
14. Brenda Cauble first spoke to Ms. Mercer in April of 1998 concerning the filing of a bankruptcy petition. By June of 1998, Ms. Cauble had submitted all of the information Ms. Mercer had requested and had paid Ms. Mercer's attorneys fee. Ms. Mercer's office informed Ms. Cauble that they filed her petition in November, despite the fact that they had not. In addition, Ms. Mercer's office gave Ms. Cauble a false case number.
15. Ms. Mercer testified that she believed Brenda Cauble's petition was one that her office had filed in November 1998. Nevertheless, following Ms. Mitchell's accusation that Ms. Mercer's office gave her a false case number, Ms. Mercer did not investigate whether Ms. Cauble's petition had, in fact, been filed. In addition, Ms. Mercer testified that upon receiving the Bankruptcy Administrator's motion filed on February 10, 1999, she did not believe she should, nor has she, contacted Ms. Cauble. Consequently, Ms. Mercer has not filed a petition for Brenda Cauble but has represented to the Court that she would refund the fees that Ms. Cauble paid her.
Ms. Mercer did file a petition for Gina Mitchell after the filing of the Bankruptcy Administrator's motion. Given this fact, Ms. Mercer's statement concerning her belief that she should not contact Brenda Cauble lacks credibility.
Cynthia Doby
16. On February 12, 1999, Ms. Mercer filed a Chapter 7 bankruptcy petition for Cynthia Doby, No. 99-30369. Although the Statement of Affairs filed with the petition is unsigned, it indicates that Ms. Mercer was paid her attorney's fee on April 29, 1996, demonstrating a tremendous delay by Ms. Mercer in filing the petition despite having been paid. Ms. Doby's petition also contained fundamental mistakes, not unlike those found in the Starnes, Mitchell, and Cauble petitions. For example, Ms. Doby's petition, like Gina Mitchell's, checked the box indicating that the Western District of North Carolina was the proper venue for Ms. Doby's case. The address information contained in the petition, however, indicated that proper venue was in the Middle District of North Carolina. In addition, as with Ms. Mitchell's petition, January 17, 1999, was the date beside Ms. Doby's signatures throughout the petition, while February 12, 1999, was the date beside Ms. Mercer's signatures throughout the petition.
17. At the § 341 meeting of creditors held on March 23, 1999, the Chapter 7 trustee for Ms. Doby's case questioned the debtor regarding the delay in filing the case. Ms. Doby stated that she kept waiting to hear from Ms. Mercer and kept calling her about the case, but that Ms. Mercer was busy. At the § 341 meeting, the Chapter 7 trustee also questioned the debtor concerning her dependents, as none were listed on the schedules. Ms. Doby testified that she had two dependents. Ms. Mercer stated that she did not know why the dependents had not been listed, as she was aware that these dependents existed. Ms. Mercer stated that she would amend the petition to reflect the correct information concerning the dependents as well as the amount of income for 1998 which the petition had listed as "unknown."
Ms. Mercer testified that Ms. Doby caused the delay in the filing of her bankruptcy petition.
18. Finally, the Bankruptcy Administrator questioned Ms. Mercer regarding whether the signature on the Chapter 7 Individual Debtor's Statement of Intention was Ms. Doby's. Ms. Mercer testified that she did not sign Ms. Doby's name. Despite Ms. Mercer' s testimony, Ms. Doby's signature on the Statement of Intention does not match the signatures contained in the rest of the petition and appears to have been forged.
Mack and Carolyn Ivey
19. Ms. Mercer filed a petition on March 4, 1999, for Mack and Carolyn Ivey, No. 99-30529. On that same date, the Bankruptcy Clerk's office filed and sent a Notice of Deficient Filing regarding the Ivey case. This Notice stated that the Disclosure of Attorney Compensation was not filed and that the case would be subject to dismissal without further notice. Pursuant to Federal Rule of Bankruptcy Procedure 2016(b), the Disclosure of Attorney Compensation is due within fifteen days after the order for relief. Consequently, the Disclosure of Attorney Compensation was due on March 19, 1999. Although Ms. Mercer signed the Disclosure of Attorney Compensation on March 19, 1999, she did not file it with the Bankruptcy Clerk's office until March 22, 1999.
20. In addition to the late filing of the Disclosure of Attorney Compensation, the Ivey's petition contained several basic problems. For example, the Ivey's petition, like that of Gina Mitchell and Cynthia Doby, designates the Western District of North Carolina as the correct venue for their case. The address information on the petition, however, indicates that the proper venue for this petition is the Middle District of North Carolina. In addition, the Statement of Financial Affairs Ms. Mercer filed with the petition was prepared on forms which were used by attorneys practicing in this court in 1994. Ms. Mercer testified that although she reviewed the petition and related documents prior to filing, an employee of the Bankruptcy Court Clerk's office told her that she had filed the Statement of Financial Affairs on an outdated and improper form at the time she presented the documents for filing. Ms. Mercer testified that she did not know why the wrong form was used and that she was having trouble with her computer software at that time. Ms. Mercer corrected this mistake and filed a Statement of Financial Affairs using the current forms on March 22, 1999.
21. Despite filing the Statement of Financial Affairs using the proper forms, the Statement still contained serious flaws. For example, the Statement listed the debtors as the source of income for the years 1996 and 1997. The Statement also included no income information for 1998 or through the filing date in 1999. Finally, the question concerning payments made by the debtors relating to debt counseling or bankruptcy was answered "none" despite the fact that the Disclosure of Attorney Compensation listed $1,000.00 as the amount of compensation the Iveys had paid Ms. Mercer.
Small Claims Actions
22. In addition to the action and judgment in the Starnes' complaint against Ms. Mercer, several of Ms. Mercer's other clients have filed actions against her claiming that she was paid for legal services which were either not performed or performed in an untimely manner.
23. One of those additional complaints was that of Karen Yow Dabbs. On December 1, 1998, Ms. Dabbs filed a complaint in Small Claims Court in Stanly County against Ms. Mercer seeking a recovery of $1,500.00. The complaint contained the allegation that the money owed was for "noncompliance after service paid." On December 22, 1998, the Stanly County Small Claims Court entered a judgment against Ms. Mercer in the amount of $1,500.00. Ms. Mercer testified that she has appealed that judgment.
Ms. Mercer also testified that she was unable to attend the hearing on the Dabbs action as she had been hospitalized. On cross examination, however, she testified that the judgment against her in the Dabbs action was entered on December 22, 1998, and that she had not been hospitalized until December 23, 1998.
24. On December 16, 1998, Frankie Coley also filed a complaint in Small Claims Court in Stanly County against Ms. Mercer seeking a recovery of $785.00, of which $35.00 claimed was interest. Ms. Coley's complaint contained the following allegation: "Services unrendered of contract 10-97. I paid in full $750 for services unrendered and paid $65 in court costs." (Coley Compl. for Money Owed.) On February 1, 1999, the Small Claims Court in Stanly County entered a judgment against Ms. Mercer in the amount of $250.00.
25. The final complaint presented as evidence by. the Bankruptcy Administrator was that of Rocky Herrin. Mr. Herrin filed a complaint in Small Claims Court in Stanly County on December 23, 1998, seeking a recovery of $705.00 from Ms. Mercer. Mr. Herrin's complaint stated: "I hired Att. Mercer in Aug. 1997. She has never filed for a court date in Stanly Co. court. I feel her services are unprofessional and has not been in a just and timely manner." (Starnes Compl. for Money Owed.) On February 1, 1999, the Small Claims Court entered a judgment against Ms. Mercer in the amount of $705.00.
Mercer Testimony
26. At the March 29, 1999, hearing, Ms. Mercer testified that, although she had gotten behind in her bankruptcy work in August of 1998, she had hired Jo Martin to work in that area. Ms. Mercer stated that she had trained Ms. Martin and that Ms. Martin had misled her as to the status of her bankruptcy work. Ms. Mercer indicated that she did not suspect there was a problem until she spoke to the Starnes at the hearing on their small claims action against Ms. Mercer. Although Ms. Mercer recognized she was legally responsible for Ms. Martin's actions as her agent, she claimed Ms. Martin was at fault for the problems related to the bankruptcy clients. Ms. Mercer testified that Ms. Martin had failed to file all petitions and had embezzled the filing fees for some of the bankruptcy petitions.
27. Ms. Mercer also testified that she had been having trouble with the computer software program which printed the bankruptcy petition, schedules, and statements. In particular, she stated that she was having difficulty with the Statement of Financial Affairs and that was why she had not filed a proper form in the Ivey case. Finally, Ms. Mercer testified regarding her hospitalization on two different occasions. She stated that she had been hospitalized between December 23 and December 24, 1998, due to heart problems, and that she did not return to work until January 4, 1999. She also testified that she was hospitalized between January 28 and January 30, 1999, due to kidney failure, and that she did not return to work until February 10, 1999. When cross examined concerning these hospitalizations, Ms. Mercer agreed that on neither occasion did the doctors give her a specific diagnosis, but that they only placed her under "observation."
CONCLUSIONS OF LAW
28. Taking the above findings of fact into consideration, this court concludes that it must disbar Ms. Mercer for a period of twelve months. Federal courts have the inherent power to regulate the behavior of attorneys appearing before them and to sanction those litigants who exhibit bad-faith conduct. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-44, 111 S.Ct. 2123, 2132-33 (1991). The Supreme Court has long recognized that this inherent authority extends to a courts ability to suspend or disbar lawyers. In re Snyder, 472 U.S. 634, 642, 105 S.Ct. 2874, 2880 (1985) (citing Ex parte Garland, 4 Wall. 333, 378-379, 71 U.S. 333, 18 L.Ed. 366 (1867); Ex parte Burr, 9 wheat. 529, 531, 22 U.S. 529, 6 L.Ed. 152 (1824)).
29. In In re Weiss, the United States Court of Appeals for the Fourth Circuit recognized that bankruptcy courts also possess the inherent power to regulate litigants' behavior and to sanction wrongdoing. See In re Weiss, 111 F.3d 1159, 1171-72 (4th Cir. 1997). Bankruptcy courts may invoke their inherent power together with, or instead of, their other powers to sanction. See In re Weiss, 111 F.3d at 1171. Such other powers to sanction include, for example, 11 U.S.C. § 105 (a) which gives bankruptcy courts the authority to issue any order necessary or appropriate to carry out the provisions of the Bankruptcy Code. See In re Walters, 868 F.2d 665, 669 (4th Cir. 1989).
11 U.S.C. § 105 (a) provides the following:
The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.
30. The court relies on its inherent power in disbarring Ms. Mercer from practice before this court. The court recognizes the "potency" of its inherent powers and the need to exercise them with the utmost discretion. As the Supreme Court noted in Chambers v. Nasco, "[a] primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process." Chambers v. Nasco, 501 U.S. at 44-45, 111 S.Ct. at 2132-33 (1991).
31. The court concludes that disbarment of Ms. Mercer from practice before this court is required by her present conduct and by the ineffectiveness of lesser sanctions previously imposed. The bases for this conclusion are as follows:
a. Ms. Mercer' s conduct is a violation of her duty of representation of the debtors (See Local Rule 2091-1) and a serious detriment to them. She undertook representation of five people for the purpose of filing bankruptcy petitions which would allow them to obtain relief from their creditors. She accepted substantial fees for that representation (generally $1,000), but she failed to perform the services required. She did ultimately file petitions for most of these clients, but only after they filed a complaint against her or after the Bankruptcy Administrator filed the present show cause motion. But, in none of the cases did Ms. Mercer perform the work timely — or without formal process having been filed against her. Her acceptance of fees and neglect of representation left each of her clients without the relief they needed (and had paid for).
b. The bankruptcy petitions that Ms. Mercer has filed are regularly so inadequate and improper as to demonstrate that she is not able to meet acceptable standards of bankruptcy practice. Several of the petitions Ms. Mercer has filed have required notices from the Clerk of deficient filings, and often Ms. Mercer' s corrective responses have been late or inadequate. One petition appears to contain a forged signature. A number of petitions contain false statements as to venue. All of the petitions Ms. Mercer filed were in an improver venue. Such practices are wholly unacceptable.
c. Ms. Mercer' s conduct is repeated and not isolated. Her neglect of her bankruptcy clients took place on at least five occasions and was part of a pattern that affected other clients as well. Her inadequate and improper petitions are her regular practice — they appear in some form in virtually every petition she has filed.
d. Ms. Mercer' s improper conduct is not isolated in time, but has occurred over the course of her practice before this court. Over the several years she has practiced in this district, her conduct has included, among other things, failure to appear at hearings, failure to appear with clients at First Meetings, forgery of signatures, incomplete and inadequate petitions, and petitions regularly filed in the improper venue. See, ¶ 1-4 supra. Her current behavior — neglecting to perform services, filing inadequate and false petitions, and filing in an improper venue — is part of that same pattern of unacceptable conduct.
e. Ms. Mercer's explanations for her conduct are not credible or sufficient. Her improper conduct is so pervasive that her purported explanations amount only to rationalizations. In some instances, the explanation is belied by its timing. In others, it simply defies credulity. With respect to filing the bankruptcy client's petitions, even if her "explanation" is believed, it should have resulted in the petitions being filed in November and not three months or more later.
f. Ms. Mercer appears incapable of accepting responsibility for her conduct. She glibly blamed the problems on everything from her clients, to her computer software, her assistant, and her health. While Ms. Mercer testified that she has tried to improve her practice since her last sanction hearing, her conduct proves otherwise.
g. Prior sanctions have been ineffective in producing acceptable conduct. The court has dealt with Ms. Mercer's conduct on several occasions by ordering progressive sanctions. These sanctions began with a small fine and increased to requiring certain remedial education concerning Chapter 13 and Chapter 7 practice and procedure, and ethics and professionalism. None of that has worked to correct her conduct. She has been warned on previous occasions (and in the immediate previous sanctions Order) that further misconduct would cause disbarment from practice before this court.
The seriousness of Ms. Mercer's misconduct and its persistence in spite of prior warnings and sanctions have caused the court to conclude that there is no effective sanction short of disbarment from practice before this court.
32. In reviewing a district court's decision to disbar an attorney, the United States Court of Appeals for the Fourth Circuit held that it would follow the standard of review set out by the Supreme Court in Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377 (1917). See In re Evans, 834 F.2d 90, 91 (4th Cir. 1987). The court assumes that the same standards would apply here. These standards are as follows:
[F]rom an intrinsic consideration of the . . . record one or all of the following conditions appear: (1) that the state procedure, from want of notice or opportunity to be heard, was wanting in due process; (2) that there was such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not, consistently with our duty accept as final the conclusion on that subject; or (3) that some other grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar except upon the conviction that, under the principles of right and justice we are constrained to do so.
Selling v. Radford, 243 U.S. at 51, 37 S.Ct. at 379. Ms. Mercer was provided ample notice and the opportunity to be heard by the court. The court's show cause hearing on March 29, 1999, meets the second prong of the Selling test in that it did not suffer from an infirmity of proof. Rather, disbarment of Ms. Mercer is more than adequately supported by the evidence the Bankruptcy Administrator presented in that proceeding. Finally, the third prong of the Selling test is satisfied because Ms. Mercer suggested no "grave reason" why the court should apply a sanction other than disbarment.
33. While disbarment is normally an extreme remedy, here it is mollified by the fact that Ms. Mercer does not live or have an office in this district and has never filed a bankruptcy petition that was properly venued in this district.
34. In a prior Order the court required Ms. Mercer to contact the PALS Committee of the North Carolina State Bar for evaluation. It was the court's hope that contacting PALS might help Ms. Mercer identify the cause of her conduct and thereby contribute to the solution. The court is not aware of the results of Ms. Mercer's contact with PALS, but has concluded that based on the present record, whatever she did was not effective. Therefore, the court will not require Ms. Mercer to contact the PALS Committee again. The court will, however, consider modifying or terminating its disbarment of Ms. Mercer upon a motion that is supported by the PALS Committee and will consider a report by the PALS Committee upon any reapplication for admission to practice by Ms. Mercer.
It is therefore ORDERED that:
1. Catrina H. Mercer's privilege to practice in the U.S. Bankruptcy Court for the Western District of North Carolina is hereby revoked.
2. After a period of one year from the date of this Order, Catrina H. Mercer may reapply for admission to practice in this court by filing a request for readmission, together with a request for a hearing on the same, both of which must be served on the Bankruptcy Administrator. At such a hearing, the burden shall be on Catrina H. Mercer to establish her fitness for admission to practice in this court.
3. At any time, Catrina H. Mercer may apply for readmission to practice (pursuant to the procedure set out in paragraph 2) upon showing (a) that readmission is required to avoid harm to a client; or (b) that readmission is supported by the PALS Committee of the North Carolina State Bar.
4. This Order shall not apply to completion of representation of existing bankruptcy clients whose petitions were filed prior to the date of this Order. The Bankruptcy Administrator is directed to supervise Catrina H. Mercer's completion of representation of those debtors in order to minimize any harm to them. Nothing in this Order relieves Catrina H. Mercer of her duty to represent those existing clients.