In re: Timothy Flannery
NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, GREENAWAY, JR. and SCIRICA, Circuit Judges. Total Pages: 3.
Date Filed: 01/27/2017
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
In re: TIMOTHY M. FLANNERY,
On a Petition for Writ of Mandamus from the
District Court of the Virgin Islands
(Related to Civ. No. 1-13-cv-00038)
Submitted Pursuant to Rule 21, Fed. R. App. P.
December 15, 2016
Before: AMBRO, GREENAWAY, JR. and SCIRICA, Circuit Judges
(Filed: January 27, 2017)
Timothy M. Flannery seeks a writ of mandamus directing the Chief Judge of the
District Court to order an investigation into his allegations of attorney misconduct
pursuant to Local Rule of Civil Procedure 83.2(b). We will deny his request.
Flannery is a plaintiff in a civil suit against a manufacturer of construction
products. After his attorney moved to withdraw from the case, citing a disagreement
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Date Filed: 01/27/2017
between Flannery and the other plaintiff, Flannery filed an attorney misconduct
complaint in the District Court. He alleged that the attorney’s motion to withdraw was
“suspect” because it omitted material information about the attorney’s other
representations, which Flannery believed created numerous conflicts of interest in her
representation of him in the civil suit.
Flannery later telephoned the Chief Judge of the District Court to ask whether,
pursuant to Local Rule 83.2(b), his attorney-misconduct complaint had been referred to a
magistrate judge for an investigation. The Chief Judge issued an order explaining to
Flannery the procedure outlined in Rule 83.2(b): Once an allegation of attorney
misconduct—“which, if substantiated would warrant discipline on the part of the
attorney”—comes before a judicial officer, he or she may refer the matter to the Chief
Judge; only then shall the Chief Judge pass the matter to a magistrate judge or a
disciplinary committee for investigation. The Chief Judge also explained that, though
Flannery filed his allegations in the District Court, it had not, in turn, referred the
allegations to the Chief Judge. The Chief Judge concluded that “[u]nless and until [a]
judicial officer determines that the predicates set forth in Rule 83.2(b) exist, and informs
the Chief Judge accordingly, any involvement by the [Chief Judge] is premature.”
Flannery now seeks a writ of mandamus, asking this Court to compel the Chief
Judge to refer his allegations of attorney misconduct to a magistrate judge for a report
and recommendation. Our jurisdiction derives from 28 U.S.C. § 1651, which grants us
the power to “issue all writs necessary or appropriate in aid of [our] . . . jurisdiction and
Date Filed: 01/27/2017
agreeable to the usages and principles of law.” A writ of mandamus is an extreme
remedy that is invoked only in extraordinary situations. See Kerr v. U.S. Dist. Court, 426
U.S. 394, 402 (1976). To justify the use of this extraordinary remedy, a petitioner must
demonstrate that he has “no other adequate means to obtain [that] relief,” and that “the
right to issuance [of the writ] is clear and indisputable.” Madden v. Myers, 102 F.3d 74,
79 (3d Cir. 1996).
Flannery has not shown a clear and indisputable right to direct the Chief Judge to
refer his attorney-misconduct complaint for investigation. Flannery sought to bypass the
procedures in Rule 83.2—whereby a judicial officer first determines that the allegations
of attorney misconduct would warrant discipline and then refers the complaint to the
Chief Judge—by telephoning the Chief Judge directly and purporting to alert her to his
allegations. However, as the Chief Judge explained, Flannery cannot force an
investigation of his allegations of misconduct by reporting them directly to the Chief
Judge. Only a judicial officer, not a pro se litigant, may refer allegations of attorney
misconduct to the Chief Judge. Moreover, the judicial officer must first determine that
the allegations, if substantiated, would warrant attorney discipline. Only then will the
Chief Judge order an investigation into the allegations.
For these reasons, we will deny West’s request for a writ of mandamus.
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