(CN) – The 9th Circuit tossed out a Nevada man’s conviction for allegedly ghostwriting pleadings for a pro-se litigant in a civil lawsuit.
James Kimsey came under suspicion after the pleadings filed by Frederick Rizzolo in a “scorched-earth lawsuit” suddenly appeared more lawyerly. The owner of a Las Vegas strip club, Rizzolo was a defendant in a 2008 lawsuit brought by Kirk Henry, who had been attacked at the club and became a quadriplegic.
Rizzolo’s attorneys stopped representing him in early 2009, and after that he proceeded pro se. But a few months later he filed eight documents with the court that “seemed to reflect somewhat more familiarity with the legal system than had his initial pro se efforts,” according to the ruling.
Skeptical, Henry’s lawyers did some digging and determined that Kimsey, who is not a lawyer, had helped Rizzolo with the pleadings. Henry filed a motion to compel Rizzolo to reveal Kimsey, whom he noted had been convicted in Nevada in 1987 for unauthorized practice of law.
During a hearing, Rizzolo’s new lawyer admitted that Kimsey had prepared eight documents for Rizzolo. A magistrate judge struck the documents, ordered Kimsey to show why he should not be held in criminal contempt for the “unlawful practice of law”, and urged the government to prosecute him. The government did so, and Kimsey was eventually convicted for violating local District Court rules that prohibit the practice of law by those who are not members of the Nevada State Bar or have not gained admission to practice pro hac vice.
On appeal in the 9th Circuit, Kimsey argued, among other things, that he was denied a jury trial and that the statue under which he was prosecuted was unconstitutionally vague as applied to him.
The federal appeals court in San Francisco agreed and reversed Kimsey’s conviction in a unanimous ruling on Wednesday.
“Here, the government may have proven that Kimsey is, if not the Devil, no saint,” wrote Judge Marsha Berzon for a three-judge panel. “But it has failed to persuade us that Kimsey was in criminal contempt under the applicable federal statute.”
A close reading of the statue at issue revealed that it “does not permit convictions for criminal contempt for violations of standing rules of court,” the panel found.
If upheld, the government’s reading of the statute would likely result in chaos in the courts, the panel added.
“Either way-whether the term ‘rule’ in § 401 would allow for criminal prosecutions, fines, and prison terms for violating local district court standing rules but not the Federal Rules, or, instead, would permit criminal prosecutions simply for violations of the minutia of the Federal Rules of Civil or Criminal Procedure, without any case specific directive or warning by the district court-the results could be nonsensical,” Berzon wrote.