The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Presently before the Court is United States Magistrate Judge David R. Homer's Report and Recommendation (Dkt. No. 21) concerning the activities of National Legal Professional Associates ("NLPA") in connection with the criminal prosecutions of Cash Whitmore and King S. Burden in United States v. Whitmore, Case No. 1:08-CR-385, in this district. Magistrate Judge Homer concludes that these activities did not constitute practicing law and recommends that no order be issued enjoining NLPA from the unauthorized practice of law in this district or compelling NLPA to refund any fees paid by the families of Whitmore and Burden. Not surprisingly, NLPA has interposed no objection. Upon review of the matter, the Court concludes that NLPA engaged in the unauthorized practice of law in connection with these two defendants. Accordingly, the Court issues an order enjoining NLPA and all individuals associated therewith from engaging in the unauthorized practice of law in the Northern District of New York and directing the return of the fees paid by the families of Cash Whitmore and King S. Burden, defendants in United States v. Whitmore, Case No. 1:08-CR-385.
Also pending is NLPA's motion (Dkt. No. 7) to unseal transcripts of the September 29, 2008 and November 7, 2008 hearings. The redacted transcripts have been filed in the context of the criminal proceedings (1:08-CR-385, Dkt. Nos. 49, 50), and the motion is denied as moot.
Magistrate Judge Homer's Report and Recommendation sets forth the background of the matter. Very briefly, the matter stems from the requests for appointment of new counsel made by two defendants, Cash Whitmore and King S. Burden ("defendants"), both charged in the same criminal complaint with conspiracy to distribute cocaine base (Case No. 1:08-CR-385, Dkt. No. 1).*fn1 Magistrate Judge Homer held hearings regarding the requests (id., Dkt. Nos. 49, 50), and learned in both cases that the defendants' families had contracted to receive services from NLPA and that NLPA had mailed materials to defendants.
At the September 29, 2008 hearing regarding Cash Whitmore's request for appointment of new counsel in place of Timothy Austin, Esq., Assistant Federal Public Defender, the following colloquy took place between Whitmore and Magistrate Judge Homer:*fn2
THE DEFENDANT: Been doing my legal studies in the library and my mother also hired like a legal team, but they can't represent me though.
Information I got from the law library and legal team just don't add up to what Mr. Austin (inaudible)...
THE COURT: When you say a legal team, are you talking about lawyers?
THE DEFENDANT: It's like a team of lawyers, but they can't represent you. Something called NLPA. National Legal Professional Associates.
THE COURT: Is this a service that your mother has paid for?
THE DEFENDANT: Yes. Right now (inaudible)
THE COURT: All-right. So have you received some advice through your mother from this legal team?
THE DEFENDANT: The legal team themself sent me package, legal stuff to read, and I believe they call the law library in jail, and I feel a few helpful things from books that I'm reading, packages that they sent me, and um...
THE COURT: Can you give me an example?
THE DEFENDANT: Might be -- not off the top. I'm trying to think of (inaudible) . Might be talking about on the rap sheet, how to beat your client's rap sheet. I really -- I can't pinpoint things right now. (inaudible) Legal material with me though. How to beat your client rap sheet. And Mr. Austin, he might say something different, the papers might tell me something different right now, things of that nature. *** [Redacted]
THE COURT: And that this legal team is recommending that you go to trial and seek a verdict of not guilty, is that correct?
THE DEFENDANT: No. They not allowed to give you that type of advice; go to trial or take a plea; they not allowed to give that type of advice. If I ask them -- if I go to the law library and find information out, they'll send me further information about the law.
THE DEFENDANT: I feel there's a mistake on my -- I feel a mistake on my rap sheet that say I have two felony when I should have one. Things I'm reading from the law library and NLPA also saying things that I feel, Mr. Austin is saying that this is the reason why. ***
THE COURT: All right. Mr. Whitmore, Mr. Austin said that there might be some other reasons why you would seek new counsel. Was there anything you wanted to tell me?
THE DEFENDANT: [Redacted.] To my knowledge I don't understand why don't want to work with somebody to make their job a little easier. [Redacted.] I didn't feel like he was working real in a timely fashion, I guess you could say. I ask him --
THE COURT: Well, what do you know about NLPA? This is the first I've ever heard of their existence.
THE DEFENDANT: There's a few people in Albany jail who have them. And they also send me a -- I guess like a report of cases they won and people they help out, like things of that nature.
THE COURT: Do you know if they're lawyers?
THE DEFENDANT: They have their own senior lawyers but they use like a -- I don't know how to pronounce it. They work as your lawyer but like they -- I'm not sure Mr. Austin got in contact with them, but they was able to work aside of him. (inaudible) I know put aside working, finding out things, he ain't one to do that. So basically they work with me and my family. But they have also their own lawyers that I have to hire myself.
THE COURT: ... [Y]ou probably haven't talked to any of them, have you?
THE COURT: You have talked to them?
At King S. Burden's November 7, 2008 hearing regarding whether he should be given new counsel to replace his assigned lawyer, James E. Long, Esq., the transcript includes the following:
THE COURT: What's the National Legal Professional whatever it is?
THE DEFENDANT: They just some people that my mom had paid to work with my lawyer. It's a group of lawyers and associates that sent me all kind of paperwork and stuff and just make sure my lawyer is doing his job. THE COURT: What's the paperwork?
THE DEFENDANT: Different kind of packets and motions that I could put in and, um, basically regular legal documents that I could go to the law library and find out myself.
THE COURT: Do they -- did they advise you as to what the contents of your Plea Agreement would look like?
THE DEFENDANT: No, your Honor.
THE COURT: Did they tell you what you should ask for?
THE DEFENDANT: No, your Honor. Said it's up to the Judge's discretion. It's under the Judge's discretion.
THE COURT: Did they give you legal advice?
THE DEFENDANT: Yes. (Pause...)
THE DEFENDANT: Nothing nothing really concerning my case just, um what kind of motion I could file or -- basically I asked them a question, and then they send me that package from what I asked them cuz I can't call my lawyer so I can't call him and ask him. I called the National Legal Professional and they -- I asked them a question that I would have asked my lawyer if I was able to contact him over the phone.
On November 12, 2008, the Court referred the matters to Magistrate Judge Homer for further proceedings as necessary regarding the possible unauthorized practice of law by NLPA (Dkt. No. 1). On November 17, 2008, Magistrate Judge Homer issued an Order to Show Cause (Dkt. No. 2) directing NLPA to show cause why an order should not be entered enjoining NLPA and any individuals associated therewith from engaging in the unauthorized practice of law in the Northern District of New York and directing the return of the fees paid by defendants' families.
NLPA moved (Dkt. No. 19) to cancel the hearing scheduled for February 12, 2009 and to proceed solely on submitted papers, contending that NLPA's submissions "conclusively demonstrate that NLPA has not engaged in the unauthorized practice of law" and that "NLPA has no additional evidence to present at a hearing on the order to show cause." By order dated February 9, 2009 (Dkt. No. 20), Magistrate Judge Homer granted the motion to cancel the hearing, adding that "if it is determined following a review of NLPA's submissions that either questions of fact are presented necessitating an evidentiary hearing or that oral argument is desired, a further hearing will be scheduled." No further hearing was scheduled and Magistrate Judge Homer issued the Report and Recommendation (Dkt. No. 21) based on NLPA's submissions. Inasmuch as NLPA waived any hearing and submitted the matter for decision on the record, and there are no credibility determinations and no basis to hold further proceedings, the Court decides the issue as a matter of law based on NLPA's undisputed submissions.
NLPA's submissions include copies of the materials NLPA mailed to defendants. In these materials, NLPA stated that it provides two levels of services to criminal defendants: Preliminary Pretrial Services ("PPS") (sometimes referred to in NLPA's publications as PPT, Preliminary Pretrial Consultation, or PPC) and Full Pretrial Services ("FPS") (sometimes referred to in NLPA's publications as FPT). Both defendants' cases here involved only the first level of service, PPS. As explained below, the Court finds that NLPA's activities at the PPS level in defendants' cases constituted giving legal advice, and, therefore, the unauthorized practice of law.
Among the inherent powers incidental to all courts is the power to regulate and discipline attorneys who appear before it. See Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). Such power extends to enjoining and sanctioning the unauthorized practice of law. See United States v. Johnson, 327 F.3d 554, 560 (7th Cir. 2003). In the exercise of its inherent powers, this Court holds that NLPA engaged in the unauthorized practice of law in its relationship with Whitmore and Burden in United States v. Whitmore, Case No. 1:08-CR-385; rejects the Report and Recommendation as contrary to law; issues an injunction prohibiting NLPA from engaging in the unauthorized practice of law in the Northern District; and directs NLPA to refund the monies received for its services to Whitmore and Burden.
The affidavit of H. Wesley Robinson, Director of Client Services for NLPA, states:
Defendant Cash Whitmore contacted NLPA by telephone on July 7, 2008.
He advised that he was facing a federal conspiracy case and that he was interested in having any assistance that NLPA's attorneys could provide to his lawyer. He provided his family's contact information and asked that NLPA send him and his family information about the assistance which could be provided. Accordingly, NLPA sent to Mr. Whitmore and his mother a letter explaining the services that could be provided by NLPA.
The July 7, 2008 letter NLPA sent to Whitmore explained the two levels of service as follows:
For the past two decades, NLPA's attorneys have provided consulting and research assistance to thousands of lawyers throughout the United States in preparing for the defense of a case at trial. NLPA does not replace your attorney but rather adds to the defense team to assist your counsel in your case. We have two different levels of assistance that we can provide to you:
* Preliminary Pre-trial Consultation (PPT)
* Full Pre-trial Services (FPT)
Each of these levels of services is outlined in the enclosed information. The first level, which we call "Preliminary Pre-Trial Consultation" only costs $2,500.00. This is a nonrefundable fee. This Preliminary Pre-trial Consultation involves NLPA helping to keep you and your family advised as to what is happening in your case and liaison with you and your family on many very important aspects of your defense. As your attorney is busy researching, drafting, and preparing your case, NLPA can serve a supporting role to enhance communication. Please review the enclosed information so you can get a clearer understanding as to the important assistance this level of service can provide to you and your family.
Once we are retained for the PPC, we will contact retained counsel. If you have appointed counsel we must wait to receive communication from your attorney that he or she is willing to accept our attorney's assistance. We will explain to your counsel how NLPA's attorneys can assist the defense team as you prepare for trial. If your counsel agrees to include NLPA in the legal arm of your defense team, then your family can pay the remaining balance of our total $4,950.00 pre-trial research fee. We will then shift the focus of our assistance to the research and consulting that will directly impact your pre-trial process. This assistance, as outlined below, would include the drafting of pretrial motions that are case specific to your circumstance, legal research addressing defenses you may have, consulting with counsel as to the investigation of the defense, and the like.
Of course, if you already know that counsel is willing to have NLPA assist in your defense as a consultant, we can move quickly to this second stage based upon a $4,950.00 research fee.
Enclosed with the July 7, 2008 letter was a six-page "Newsletter" from NLPA dated Summer 2008, headed, "Pre-trial and the Need for a Strong Defense Team." The first paragraph stated:
Michael Jackson, Robert Blake, and O.J. Simpson aren't the only people who can benefit from the team approach in a criminal case. You can too and it costs less than you may think. National Legal Professional Associates (NLPA) is a technical legal research and consulting firm, owned by attorneys, and dedicated to the professional mission of providing consultation, research, and related work product to members of the Bar. Although our attorney research department stands ready to assist in all phases of pre-trial management, our expertise extends from pre-trial assistance, to sentencing, appeals and all types of post conviction relief litigation. Our research is prepared by licensed attorneys.
In describing the PPS level of service, the Newsletter stated in part:
Examples of the services that NLPA can provide to you and your family, should you retain us for this level of assistance, are as follows:
a. We will provide you and your family with information concerning exactly what is happening in the case. This will include following up with the court to advise you of what pre-trial motions have been filed, responses filed by the government, and the status of the case in general. In this way, by having NLPA involved, we can assist you in getting a clearer understanding of exactly what is happening with the case. ...