Case 2:22-cv-00184-LCB-CWB Document 406 Filed 02/21/24 Page 1 of 12

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BRIANNA BOE, et al., )
)
Plaintiffs, )
)
v. ) Case No. 2:22-cv-184-LCB
)
STEVE MARSHALL, et al., ) FILED UNDER SEAL
)
Defendants. )

ORDER TO SHOW CAUSE

In the spring of 2022, the chief judges of the United States District Courts for

the Northern, Middle, and Southern Districts of Alabama convened a three-judge

panel to investigate a series of court filing activity and public statements that gave

the appearance of impermissible judge-shopping. The investigation concerned

thirty-nine lawyers from three related cases 1 and lasted nearly a year and a half. In

its Final Report of Inquiry, the panel unanimously found “without hesitation” that

eleven of the lawyers (“the Respondents”) had “purposefully attempted to

circumvent the random case assignment procedures” for the U.S. District Courts for

the Northern and Middle Districts of Alabama—they had, indeed, impermissibly

judge-shopped—and directed that its report be served on this Court to “proceed as

appropriate.” (Doc. 339 at 51).

1
Those cases were Walker v. Marshall, 5:22-cv-480-LCB (N.D. Ala. 2022); Ladinsky v. Ivey,
5:22-cv-477-LCB (N.D. Ala. 2022); and this one.
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The Court has reviewed the panel’s Final Report of Inquiry, the evidentiary

record and sworn testimony before the panel, the Respondents’ arguments before the

undersigned at the hearings of November 2 and 21, 2023, the Respondents’ briefing,

and the relevant authorities. Having considered the foregoing, the Court finds it

appropriate to proceed as to all Respondents and hereby ORDERS Melody Eagan,

Jeffrey Doss, Scott McCoy, Jennifer Levi, Shannon Minter, James Esseks, Kathleen

Hartnett, Michael Shortnacy, LaTisha Faulks, Asaf Orr, and Carl Charles to show

cause why they should not be sanctioned for the misconduct outlined in the Final

Report of Inquiry and detailed further below.

I. LEGAL STANDARDS

District courts are vested with the inherent power to sanction attorneys for

bad-faith conduct that “abuses the judicial process.” Chambers v. NASCO, Inc., 501

U.S. 32, 43-45 (1991). This inherent power is “necessarily vested in courts to

manage their own affairs so as to achieve the orderly and expeditious disposition of

cases,” id., and it “is both broader and narrower than other means of imposing

sanctions.” Peer v. Lewis, 606 F.3d 1306, 1314 (11th Cir. 2010) (quoting Chambers,

501 U.S. at 46). It is broader in that other authorities limit the court’s sanction power

to “certain individuals or conduct,” while “the inherent power extends to a full range

of litigation abuses”; it is narrower in limiting sanctions to bad-faith conduct. Id. at

1314-15.

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A court may invoke its inherent power to sanction attorneys “even if

procedural rules exist which sanction the same conduct.” Chambers, 501 U.S. at 49.

Courts may also “rely on a variety of other sources of judicial power” to impose

sanctions, including those prescribed by Rule 11 of the Federal Rules of Civil

Procedure, the district court’s local rules, and section 1927 of Title 28 of the United

States Code. 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 1336 (4th ed. 2023).

For a court to impose sanctions against an attorney for his or her misconduct,

the court “must comply with the mandates of due process” by giving the attorney

“fair notice that [his or her] conduct may warrant sanctions and the reasons why.”

United States v. Shaygan, 652 F.3d 1297, 1318 (11th Cir. 2011) (internal quotation

marks omitted). Due process mandates that the court give notice of “the precise rule,

standard, or law that he or she is alleged to have violated and how he or she allegedly

violated it.” Id., 652 F.3d at 1319.

The three-judge panel put the Respondents continually on notice that it was

investigating purposeful attempts to manipulate the random case assignment system

in the Northern and Middle Districts of Alabama. The misconduct described and

findings made in panel’s Final Report of Inquiry implicate the rules, standards, and

codes of professional conduct set forth below. These rules, standards, and codes

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cover all misconduct described in the Final Report of Inquiry, but not every rule,

standard, and code applies to each Respondent.

• Prohibition Against Judge-Shopping. Courts throughout the country

prohibit attempts to manipulate or circumvent the random assignment of judges. This

is as true in the Eleventh Circuit as it is anywhere in the nation. See, e.g., In re

BellSouth Corp., 334 F.3d 941, 959 (11th Cir. 2003) (holding “that a contrivance to

interfere with the judicial assignment process constitutes a threat to the orderly

administration of justice” and that “attempts to manipulate the random assignment

of judges . . . constitute[s] a disruption of the orderly administration of justice.”)

• Federal Rule of Civil Procedure 11(b). Federal Rule of Civil

Procedure 11(b)(1) prohibits attorneys from “presenting to the court” any “paper . . .

for any improper purpose.”

• 18 U.S.C. § 1621. Section 1621 criminalizes perjury generally:

Whoever—(1) having taken an oath before a competent tribunal,

officer, or person, in any case in which a law of the United States
authorizes an oath to be administered, that he will testify, declare,
depose, or certify truly, or that any written testimony,
declaration, deposition, or certificate by him subscribed, is true,
willfully and contrary to such oath states or subscribes any
material matter which he does not believe to be true . . . is guilty
of perjury and shall, except as otherwise expressly provided by
law, be fined under this title or imprisoned not more than five
years, or both.

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• Local Rule 83.1(f) of the Northern District of Alabama Local Rules.

Local Rule 83.1(f) prescribes the standards for professional conduct and obligations

applicable to attorneys in the Northern District of Alabama and provides as follows:

Each attorney who is admitted to the bar of this court or who appears
in this court pursuant to subsection (b) or (c) of this Rule is required to
be familiar with, and shall be governed by, the Local Rules of this court;
and, to the extent not inconsistent with the preceding, the Alabama
Rules of Professional Conduct adopted by the Alabama Supreme Court;
and, to the extent not inconsistent with the preceding, the American Bar
Association Model Rules of Professional Conduct, except Rule 3.8(f)
thereof. Acts and omissions by any such attorney which violate such
standards, individually or in concert with any other persons, shall
constitute misconduct, whether or not occurring in the course of an
attorney-client relationship, and shall be grounds for discipline, as shall
the commission by an attorney of any serious crime. Discipline under
this Rule may consist of disbarment, suspension, censure, reprimand,
removal from a particular case, ineligibility for appointment as court-
appointed counsel, ineligibility to appear under subsections (b) and (c),
monetary sanctions, or any other sanction the court may deem
appropriate.

• Local Rule 83.1(g) of the Middle District of Alabama. Local Rule

83.1(g) prescribes the standards for professional conduct and obligations applicable

to attorneys in the Middle District of Alabama and provides as follows:

Attorneys admitted to practice before this Court shall adhere to this

Court's Local Rules, the Alabama Rules of Professional Conduct, the
Alabama Standards for Imposing Lawyer Discipline, and, to the extent
not inconsistent with the preceding, the American Bar Association
Model Rules of Professional Conduct. Attorney misconduct, whether
or not occurring in the course of an attorney/client relationship, may be
disciplined by disbarment, suspension, reprimand, monetary sanctions,
removal from this Court's roster of attorneys eligible for practice before
this Court, or such other sanction as the Court may deem appropriate.

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• Alabama Rules of Professional Conduct. Alabama Rule 1.2(a)

requires attorneys to “abide by a client's decisions concerning the objectives of

representation” and “consult with the client as to the means by which they are to be

pursued.”

Alabama Rule 1.3 prohibits attorneys from “willfully neglect[ing] a legal

matter entrusted to him [or her].”

Alabama Rule 1.4 requires attorneys to keep clients “reasonably informed

about the status of a matter” and explain such matters “to the extent reasonably

necessary to permit the client to make informed decisions regarding the

representation.”

Alabama Rule 3.3 prohibits attorneys from “knowingly” making “false

statement[s] of material fact . . . to a tribunal.”

• The American Bar Association Model Rules of Professional

Conduct. Model Rule 1.2(a) requires attorneys to “abide by a client's decisions

concerning the objectives of representation and . . . consult with the client as to the

means by which they are to be pursued.” Attorneys “may take such action on behalf

of the client as is impliedly authorized to carry out the representation.”

Model Rule 1.3 requires attorneys to “act with reasonable diligence and

promptness in representing a client.”

Model Rule 1.4 requires attorneys to

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(1) promptly inform the client of any decision or circumstance

with respect to which the client's informed consent . . . is required
by these Rules;
(2) reasonably consult with the client about the means by which
the client's objectives are to be accomplished; [and]
(3) keep the client reasonably informed about the status of the
matter . . . .
Model Rule 3.3 prohibits attorneys from “knowingly” making “false

statement[s] of fact . . . to a tribunal” and “fail[ing] to correct . . . false statement[s]

of material fact” that they have “previously made to the tribunal.”

• Oath of Admission to the Northern District of Alabama. To practice

in United States District Court for the Northern District of Alabama, all attorneys

must take the district’s oath of admission, which provides as follows:

I do solemnly swear or affirm that I will support the Constitution of the

United States and the Constitution of the State of Alabama; I will
maintain the respect due to courts of justice and judicial officers; I will
not counsel or maintain any suit or proceeding which shall appear to
me to be unjust, nor any defense except such as I believe to be honestly
debatable under the law of the land; I will employ for the purpose of
maintaining the causes confided to me such means only as are
consistent with truth and honor, and will never seek to mislead the judge
or jury by an artifice or false statement of fact or law; I will maintain
the confidence and preserve inviolate the secrets of my clients, and will
accept no compensation in connection with their business except from
them or with their knowledge and approval; I will abstain from all
offensive conduct and advance no fact prejudicial to the honor or
reputation of a party or witness unless required by the justice of the
cause with which I am charged; and I will never reject for any
consideration personal to myself the cause of the defenseless or
oppressed, or delay any person's cause for lucre or malice.

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• Oath of Admission to the Middle District of Alabama. To practice

in United States District Court for the Middle District of Alabama, all attorneys must

take the district’s oath of admission, under which each attorney must swear or affirm

that he or she will:

support and defend the constitution and laws of the United States of
America; that [he or she] will at all times maintain the respect due to
courts of justice and judicial officers; that [he or she] will, when
assigned as counsel for indigent litigants, conscientiously and fairly
represent said litigants to the best of [his or her] professional ability;
that [he or she] will never reject for any consideration personal to
[himself or herself] the cause of the defenseless or oppressed, and that
[he or she] will at all times maintain a professional conduct in
accordance with the rules and orders of this court, the cannons of the
American Bar Association and the Code of Ethics of the Alabama State
Bar Association.

• Sworn Oath. On May 20, 2022, the Respondents all swore or affirmed

that the testimony they were about to give to the panel would “be the truth, the whole

truth, and nothing but the truth.”

II. SANCTIONABLE CONDUCT

Each Respondent is ordered to show cause why he or she should not be

sanctioned for violating these rules, standards, and codes of professional conduct for

each of the following reasons:

a. Judge-Shopping

Each Respondent is ordered to show cause why he or she should not be

sanctioned for attempting to manipulate the random case assignment procedures for

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the U.S. District Courts for the Northern and Middle Districts of Alabama in

violation of controlling precedent, Rule 11 of the Federal Rules of Civil Procedure,

and the rules of professional conduct applicable in the Northern and Middle Districts

of Alabama. In responding, each Respondent must address all applicable grounds of

individual and collective misconduct that the three-judge panel identified on pages

51-52 of the Final Report of Inquiry, as well as any other pertinent misconduct

described by the panel.

b. Misrepresentation and Non-Disclosure

Each Respondent is ordered to show cause why he or she should not be

sanctioned for misrepresenting or otherwise failing to disclose key facts during the

panel’s inquiry, all in violation of controlling precedent, Rule 11 of the Federal Rules

of Civil Procedure, the rules of professional conduct applicable in the Northern and

Middle Districts of Alabama, the Oaths of Admission for the Northern and Middle

Districts of Alabama, and their sworn oaths. In responding, each Respondent must

address the discrepancies between his or her own testimony and affidavits and those

of all other attorneys involved in the panel’s inquiry.

c. Perjury in Judicial Proceedings

Respondent Carl Charles is further ordered to show cause why he should not

be sanctioned for deliberately misleading the three-judge panel in violation of 18

U.S.C. § 1623 and the rules of professional conduct applicable in the Northern and

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Middle Districts of Alabama, the Oaths of Admission for the Northern and Middle

Districts of Alabama, and his sworn oath, specifically with respect to his testimony

about his phone call to Judge Myron Thompson’s chambers on April 12, 2022.

d. Breach of Attorney-Client Duties

Respondents LaTisha Faulks, James Esseks, and Carl Charles are further

ordered to show cause why they should not be sanctioned for failing to seek or secure

their clients’ consent in violation of Federal Rule of Civil Procedure 11 and the rules

of professional conduct applicable in the Northern and Middle Districts of Alabama

before dismissing Walker v. Marshall.

III. POSSIBLE SANCTIONS

For the acts and omissions described above, Respondents are hereby notified

that the Court may consider one or more of several possible sanctions, as appropriate,

including suspension from practice in the Northern and Middle Districts of Alabama;

censure; public or private reprimand; disqualification; ineligibility for appointment

as court-appointed counsel; ineligibility to appear pro hac vice or on behalf of the

United States in the Northern and Middle Districts of Alabama; and monetary

sanctions.

IV. CONCLUSION

The Court therefore ORDERS as follows:

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Each Respondent must show good cause, if any there may be, why he or she

should not be sanctioned for the conduct identified in Section II of this order and the

panel’s Final Report of Inquiry. As the Court proposed in November, any

Respondent who accepts full or partial responsibility for misconduct found by the

panel may thus advise the Court and, in lieu of showing cause, explain with

specificity the misconduct for which he or she accepts responsibility and comment

on the appropriate sanction in his or her response to this order.

Any Respondent who believes that specific additional evidence is necessary

for the Court to determine a Respondent’s culpability or an appropriate sanction

must move the Court for such action by March 8, 2024 and shall set out in detail

that specific additional evidence in said filing.

The Respondents’ show-cause briefs are due by March 22, 2024.

In a separate filing, the Respondents must identify those portions of all other

Respondents’ briefs with which they agree or disagree by April 5, 2024.

The Court has made reasonable efforts to set the show-cause hearing on dates

in February or March which are free of scheduling conflicts for the Respondents and

their attorneys, but it has met with no success. The Court will therefore set this matter

in May and expect the Respondents and their attorneys to be available. The

Respondents must appear in Courtroom 2F of the United States Courthouse in

Montgomery, Alabama at 9:30 a.m. on May 22 and 23, 2024.

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DONE and ORDERED this February 21, 2024.

_________________________________
LILES C. BURKE
UNITED STATES DISTRICT JUDGE

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