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ETHICS SCENARIOS

HON. JEFF BOHM U. S. Bankruptcy Judge

Southern District of Texas Houston

State Bar of Texas 24TH ANNUAL

ADVANCED CONSUMER BANKRUPTCY COURSE September 18-19, 2008

Dallas

CHAPTER 17

Judge Jeff BohmUnited States Bankruptcy Judge for the Southern District of Texas6202 Bob Casey Federal Courthouse515 Rusk St.Houston, TX 77002

Jeff Bohm was sworn in as a bankruptcy judge for the Southern District of Texas onDecember 30, 2004. Judge Bohm obtained his BA from Haverford College in 1976, his MA fromThe Johns Hopkins University in 1978, and his JD from The University of Texas School of Law in1984.

Following graduation from law school, Judge Bohm practiced law for approximately 20years with the Austin, Texas law firm of McGinnis, Lochridge & Kilgore, LLP. He primarilypracticed bankruptcy law, and his practice was state-wide.

While he practiced law in Austin, Judge Bohm coached the moot court teams at theUniversity of Texas School of Law for the Duberstein Bankruptcy Competition held annually inNew York City. Since taking the bench, Judge Bohm has helped the moot court team from theUniversity of Houston Law Center prepare for this annual competition. He is also an adjunctprofessor at the University of Houston Law Center.

Judge Bohm is a fellow in the American College of Bankruptcy and a member of theMoller/Foltz Bankruptcy Inn of Court and the Garland R. Walker American Inn of Court. He alsosits on the Board of Directors of the Garland R. Walker American Inn of Court. He is boardcertified in business bankruptcy by the Texas Board of Legal Specialization and by the AmericanBoard of Certification. He also has board certification in consumer bankruptcy from the TexasBoard of Legal Specialization. While practicing in Austin, Judge Bohm also served for five yearson the Bankruptcy Law Advisory Commission for the Texas Board of Legal Specialization; he wasChairman of this Commission in 2003-2004.

Judge Bohm has been a frequent speaker at bankruptcy seminars. He has also publishedarticles in the American Bankruptcy Law Journal, the Uniform Commercial Code Law Journal, andthe Texas Bar Journal.

Ethics Scenarios Chapter 17

24TH ANNUAL ADVANCED CONSUMER BANKRUPTCY COURSE TEXAS BAR CONTINUING LEGAL EDUCATION

SEPTEMBER 18-19, 2008 DALLAS, TEXAS

ETHICS SCENARIOS Speaker Contact Information: Honorable Jeff Bohm United States Bankruptcy Judge Southern District of Texas Bob Casey Federal Courthouse 515 Rusk Avenue, Room 6202 Houston, TX 77002 (713) 250-5470 [email protected] Ashley L. Gargour Briefing Clerk Bob Casey Federal Courthouse 515 Rusk Avenue, Room 6202 Houston, TX 77002 (713) 250-5470 [email protected] Spencer D. Solomon Briefing Clerk Bob Casey Federal Courthouse 515 Rusk Avenue, Room 6202 Houston, TX 77002 (713) 250-5422 [email protected]

Judicial Interns of the Honorable Jeff Bohm: Lisa Aquino South Texas College of Law, May 2010 [email protected] John Beck Texas Tech University School of Law, May 2010 [email protected] Chad Bothe South Texas College of Law, May 2010 [email protected] Zachary Bowman South Texas College of Law, May 2010 [email protected] Tanya Cox Texas Southern University, May 2010 [email protected] Shayla Friesen South Texas College of Law, December 2009 [email protected] Anabel Hernandez South Texas College of Law, December 2008 [email protected] Dawn Jenkins University of Houston, May 2010 [email protected] Justin Markel South Texas College of Law, May 2010 [email protected] Suzanne Pantalion University of Houston, May 2010 [email protected] John Strohmeyer University of Texas, May 2009 [email protected]


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TABLE OF CONTENTS

ATTORNEY MISCONDUCT IN CASES BEFORE THE DISTRICT JUDGES AND BANKRUPTCY JUDGES OF THE NORTHERN DISTRICT OF TEXAS ......................................................................................................... 1

Opinions of District Court Judges in the Northern District of Texas on Attorney Misconduct in Bankruptcy Cases ..................................................................................................................................... 1 Opinions of Bankruptcy Court Judges in the Northern District of Texas on Attorney Misconduct......... 6

CASE SUMMARIES.............................................................................................................................. 8 Abusive Deposition Tactics...................................................................................................................... 9 Sanctions Imposed for Document Production Abuse ............................................................................. 13 Threatening Witnesses............................................................................................................................ 24 Application of the Guidelines of Professional Courtesy ........................................................................ 26

ETHICS AND PROFESSIONALISM ....................................................................................................... 28 Professionalism Codes............................................................................................................................ 31

LOCAL RULES FOR ALL DISTRICT COURTS WITHIN TEXAS ................................................................. 38 Local Rules Governing Grounds for Disciplinary Action ...................................................................... 39 Local Rules Governing Appeal of Disciplinary Action.......................................................................... 40 Local Rules Governing Standards of Practice ........................................................................................ 41 Local Rules Governing Procedure for Loss of Bar Membership ........................................................... 44 Local Rules Governing Discipline Imposed by Presiding Judge ........................................................... 47 Local Rules Governing Self-reporting by Attorneys.............................................................................. 48 Local Rules Governing Procedures for Readmission ............................................................................. 49


ATTORNEY MISCONDUCT IN CASES BEFORE THE DISTRICT JUDGES AND BANKRUPTCY JUDGES OF THE NORTHERN DISTRICT OF TEXAS

Prepared by Shayla Friesen∗

∗ South Texas College of Law, Juris Doctor Candidate December 2009; [email protected]


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Opinions of District Court Judges in the Northern District of Texas on Attorney

Misconduct in Bankruptcy Cases

Judge Case Attorney’s Alleged Misconduct Outcome

Judge A. Joe Fish Regal Row Fina, Inc. v. Wash. Mut. Bank, 2004 WL 2826817 (N.D. Tex. 2004 Dec. 9, 2004)

Debtor claimed that Counsel for Creditor attempted to mislead the bankruptcy court by making false representations and omitting pertinent facts.

The Court denied Debtor’s request for sanctions because Debtor: (1) did not wait 21 days after serving Creditor with the motion before filing it with the Court as required by Rule 11; (2) did not file a separate motion requesting Rule 11 sanctions with the Court; (3) failed to comply with the local procedural rules.

Judge Sidney A. Fitzwater

Nicoladze v. Lawler, 86 B.R. 69 (N.D. Tex. 1988)

Attorney filed a brief that failed to comply with Bankruptcy Rule 8010.

Although the Court determined that the attorney’s brief was patently deficient, the Court concluded that the deficient brief did not warrant dismissal of the appeal. The Court granted the attorney’s Motion for Leave to Amend, but ordered the attorney to pay the opposing counsel’s reasonable attorney’s fees and costs associated with prosecuting the Motion to Dismiss for Sanctions.

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=US_bankruptcy&volume=86&edition=B.R.&page=69&id=17528_01


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Judge Sidney A. Fitzwater

In re First City Bancorporation of Texas, Inc., 270 B.R. 807 (N.D. Tex. 2001)

Counsel engaged in obnoxious and abusive behavior during the bankruptcy proceeding, for example: (1) making the following derogatory comments about other attorneys: “weak pussyfooting deadhead who had been dead mentally for ten years”, “underling who graduated from a 29th-tier law school”, “inept”, and “clunks”; (2) referring to other attorney’s work product as “legal incompetence” that involved ludicrous additional time and expenses”; (3) alleging fraud, cover-ups, payoffs, and bribes without any evidence to support his characterizations.

The Court concluded that the bankruptcy court did not abuse its discretion in imposing $25,000.00 in sanctions against Counsel.




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Judge Sam A. Lindsay Cadle Co. v. Pratt, 2007 WL 824117 (N.D. Tex. Mar. 16, 2007)

Counsel violated his ethical and professional obligation to withdraw pleadings and retract arguments made before the Court. Specifically, Counsel did not correct the record after he became aware that he had made false arguments regarding distributions under the Debtor’s will.

The Court affirmed the bankruptcy court’s denial of sanctions against Counsel because the motion was untimely, the movant failed to serve the motion on opposing parties, and the movant did not provide adequate evidence to support his position. The Court, however, reversed the bankruptcy court’s decision to award Counsel attorney’s fees and expenses associated with defending the Motion because Counsel did not present evidence validating the attorney’s fees and expenses.

Judge Robert B. Maloney

Whitehead v. F.D.I.C., 1989 WL 505936 (N.D. Tex. Spet. 13, 1989)

Creditor claimed that Counsel for the Debtor filed motions to alter or amend the Court’s final judgment without presenting any new arguments and failing to cite any appropriate case law. Counsel’s brief included contentions and claims for relief without foundation in fact or law.

Although the Court did find that Counsel’s arguments were unpersuasive, the Court determined that Rule 11 sanctions were not warranted.


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Judge John H. McBryde

In re Western Fidelity Marketing, Inc., 2001 WL 34664165 (N.D. Tex. June 26, 2001)

Defendants and their counsel seek sanctions against Plaintiff’s counsel because (1) Plaintiff filed malpractice suit against former counsel without a legal or factual foundation and for an improper purpose—namely, because former counsel failed to turn over a legal file upon demand; (2) Plaintiff’s counsel engaged in bad faith conduct in prosecution of the case, including: (a) filing the suit five days after the cited limitations period expired, (b) failing to respond to dispositive motions, (c) failing to designate an expert witness, (d) providing improper interrogatory answers, (e) testifying inconsistently regarding fee arrangements, (f) serving improper disposition notices, and (g) filing motion to disqualify in bad faith.

The Court upheld monetary sanctions imposed by the bankruptcy court against Plaintiff’s counsel, individually, and his law firm.


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Judge Jorge A. Solis Whelan v. Heffler Tadetich & Saitta, L.L.P., 1999 WL 818749 (N.D. Tex. Oct. 13, 1999)

Counsel engaged in a pattern of obnoxious behavior aimed at opposing counsel and parties during the course of the bankruptcy proceedings, including: (1) referring to other attorneys as “puppets,” stooges,” and “a bunch of starving slobs”; (2) accusing parties of lying; (3) characterizing attorneys’ work product as “garbage”; (4) describing an executive compensation plan approved by the Court as “bribes”; and (5) calling the chairman of the Debtor company a “hayseed” and a “washed-up has-been [who] belongs in the scrap heap,” while referring to its board of directors as “scoundrels.”

On appeal, the Court upheld the following provisions of the bankruptcy court’s Original Sanctions Order: (1) permanently enjoining and barring Counsel from further practice in the U.S. Bankruptcy Court for the Northern District of Texas, excepting any pending proceedings; (2) ordering Counsel pay attorney’s fees and expenses to the opposing party.


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Opinions of Bankruptcy Court Judges in the Northern District of Texas on Attorney Misconduct


Former Chief Bankruptcy Judge Steven A. Felsenthal, Current Chief Bankruptcy Judge Barbara J. Houser, Bankruptcy Judge Harlin DeWayne Hale

In re Armstrong, 320 B.R. 97 (Bankr. N.D. Tex. 2005)

The attorney filed blanket objections for an improper purpose

The objections presented issues in an evolving area of the law, which the attorney was testing for the benefit of his clients. Thus, 9011 sanctions were not warranted.

Bankruptcy Judge Harlin DeWayne Hale

In re Pratt, 2008 WL 2954755 (Bankr. N.D. Tex. July 20, 2008)

A creditor filed a Motion for Sanctions, claiming Counsel for Debtor violated his ethical obligations to withdraw pleadings after he altered his explanation regarding the source of the setoff.

Finding the movant was objectively unreasonable in filing the Motion for Sanctions, the Court awarded reasonable fees and expenses to Counsel for Debtor.

Bankruptcy Judge Stacey G.C. Jernigan

In re Layer, 2007 WL 2229624 (Bankr. N.D. Tex. July 31, 2007)

Counsel for the Debtors (1) Failed to appear at a prehearing conference; (2) Did not pursue a modified plan as requested by his client; (3) Failed to comply with court ordered sanctions: specifically, not representing Chapter 13 debtors in the N.D. of Texas for one year, disgorging attorney’s fees, and transitioning cases to alternate counsel; (4) Requested client sign affidavit falsely stating he repaid the attorney’s fees.

The Court found Counsel in civil contempt of the Court’s Order Imposing Sanctions, and imposed a multi-faceted sanction against Counsel with extremely specific requirements and deadlines to ensure further compliance with the Court’s directives.




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Bankruptcy Judge D. Michael Lynn

In re Texasoil Enters., Inc., 296 B.R. 431 (Bankr. N.D. Tex. 2003)

Debtor’s Counsel (1) Failed to give notice of creditor’s meeting; (2) Did not seek court approval of accountant; (3) Committed errors and omissions on schedules; (4) Failures regarding payment of pre-petition debt and use of cash collateral; (5) Did not properly instruct client on how to comply with court order.

Although the Court determined that the attorney’s conduct did not rise to the level of independent sanctions, the court did reduce the attorney’s retainer. The amount retained by the Court was applied toward the fees of other professionals approved due to the attorney’s errors.

Bankruptcy Judge Brenda T. Rhoades1

In re Red Lion Lake Dallas Club, Inc., 2007 WL 2471604 (Bankr. E.D. Tex. Aug. 27, 2007)

Debtor’s Counsel (1) Failed to reasonably investigate the truthfulness of Debtor’s Schedules, Statement of Financial Affairs, and accompanying documents; (2) Failed to attend scheduled meeting of creditors; (3) Failed to file timely objections; (4) Filed a motion in bad faith, for the purpose of causing unnecessary delay and not for any legitimate purpose.

The Court barred Counsel from practicing in the U.S. Bankruptcy Court for the Eastern District of Texas for 2 years, excluding pending cases in which he may serve until the case is closed and/or dismissed. Debtor and Counsel were held jointly and severally liable to pay Comptroller’s reasonable costs associated with this case. The Court reported these findings to the U.S. Trustee for further investigation and potential prosecution by the U.S. Attorney.

1 Bankruptcy Judge Brenda T. Rhoades sits in Plano, Texas, which is within the Eastern District of Texas. However, her rulings were included within this compilation from the Northern District of Texas because Plano is within close proximity to Dallas, Texas.



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CASE SUMMARIES • ABUSIVE DEPOSITION TACTICS • SANCTIONS IMPOSED FOR DOCUMENT PRODUCTION ABUSE • SANCTIONS IMPOSED FOR LOCAL RULE VIOLATIONS • THREATENING WITNESSES • APPLICATION OF THE GUIDELINES OF PROFESSIONAL COURTESY


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Abusive Deposition Tactics

Thomas v. Hoffman-LaRoche, Inc., 126 F.R.D. 522 (N.D. Miss. 1989)

Facts: Products liability plaintiff sought imposition of sanctions against defense counsel for abuse of discovery process. Defendant sought to set aside award of sanctions by magistrate.

Issue: Are sanctions proper for using abusive tactics during the deposition process?

Rules of Law: (1) Court has inherent power to levy sanctions in response to abusive litigation practices during deposition. (2) Attorney’s fees are part of wide range of sanctions available to encourage counsel to follow acceptable deposition procedures.

Federal Rule of Civil Procedure 30(d)(2), in pertinent part, states that “the court may impose an appropriate sanction—including the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.” Abusive and disruptive behavior by attorneys during depositions has emerged as a serious concern. In 1993, the rule was amended to add that “[a]ny objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner.”

Holding: Motion denied. On defendant’s motion to set aside award of sanctions by magistrate, the court held that misconduct by defense counsel at deposition warranted sanction of attorney’s fees.

Rationale: The court reviewed transcripts of the depositions at issue and found that the misconduct of LaRoche’s counsel destroyed the value of the videotaped depositions and was completely inexcusable. These depositions were disrupted with repeated objections, comments, and attempts to control the proceedings. By the court’s calculation, LaRoche’s counsel made over 570 objections during the two depositions and repeatedly interfered with efforts by counsel for plaintiff with comments and needless objections. The court ruled that the abusive tactics utilized during the deposition would not be tolerated.

The court found that the magistrate’s order was not clearly erroneous or contrary to law. In addition, the magistrate properly found egregious misconduct during the depositions and has the power to sanction such misconduct. The counsel for LaRoche failed to ensure that the persons whom opposing counsel wanted to examine appeared at their respective depositions, greatly disrupted the depositions that were taken, and refused to allow Plaintiffs counsel to conduct proper discovery. The court found that the magistrate’s award of attorney’s fees was narrowly tailored to the discovery abuse involved and was an appropriate sanction under the discovery rules.


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Carroll v. Jaques Admiralty Law Firm, P.C., 110 F.3d 290 (5th Cir. 1997)

Facts: Appellant Leonard C. Jaques, a practicing attorney and unsuccessful defendant in this fraud case filed by a former client, appealed the final order of the district court imposing sanctions for Jaques’s conduct in his deposition. At his videotaped deposition, which lasted for more than four hours, Jaques threatened and cursed at opposing counsel. Relying on its inherent power, the district court imposed sanctions against Jaques in the amount of $7,000 to be paid to the Clerk of the United States District Court.

Issue: Whether Jaques should be sanctioned for his abusive conduct at his deposition.

Rules of Law: (1) District court had inherent power to impose sanctions. (2) Attorney’s use of threats and profanity at deposition was bad faith, so as to warrant the imposition of sanctions.

Rule 37, in part, permits the court to order the offending party or its attorneys, or both, to pay the opposing counsel’s reasonable expenses and fees incurred as sanctions for the offending party’s failure to make disclosures or to cooperate during discovery. See Fed. R. Civ. P. 37(a).

Holding: Affirmed. The district court did not abuse its discretion in resorting to its inherent power to sanction Jaques for his behavior at his deposition.

Rationale: The court ruled that when a party’s deplorable conduct is not effectively sanctionable pursuant to an existing rule or statute, it is appropriate for a district court to rely on its inherent power to impose sanctions. However, a court must exercise caution in invoking its inherent power. The court ruled that sanctions were appropriate in the present case. The court found that Jaques’ behavior of hurling vulgar and profane words at opposing counsel constituted bad faith. The court ruled that the district court did not abuse its discretion in considering Jaques’ conduct as constituting bad faith, because the court found it appropriate for the district court to have “a heightened standard of conduct for a litigant who is also an attorney.” The court also found it was unacceptable for a party, particularly a party who is also an attorney, “to attempt to use the judicial system ... to harass an opponent in order to gain an unfair advantage in litigation.” The court determined that Jaques’ abusive behavior disrupted the litigation (1) by forcing counsel for the Plaintiff to terminate the deposition; and (2) by displaying blatant disrespect and contempt for the judicial processes of the court. In addition, the court believed his language was extremely offensive, threatening, and contumacious and that no court could effectively dispose of a case when a party engages in such repugnant conduct in the course of pretrial discovery.

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=US_5thcircuit&volume=110&edition=F.3d&page=290&id=17528_01


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Howell v. Std. Motor Prods., No. 4:99-CV-987-E, 2001 WL 456241 (N.D. Tex. 2001)

Facts: Defendant Standard Motor Products filed a motion to compel answers to deposition questions and to produce documents at deposition. Plaintiff Larry Howell did not produce the documents requested and Howell’s attorney also refused to let Howell answer numerous questions from opposing counsel. Howell died on February 9, 2001. Standard then file its motion, claiming that because Howell would not answer certain questions at his deposition, his subsequent death has left Standard without any means to complete discovery in this matter. Standard requested that the Court prevent Howell’s testimony from being used at trial, and prohibit Howell from introducing any evidence relating to his retaliation claims.

Issue: Should the court issue sanctions on attorneys who instruct their clients not to answer deposition questions posed by opposing counsel?

Rules of Law: (1) Sanctions can be levied by courts pursuant to their inherent power to regulate practice in pending cases. (2) Federal courts have not hesitated to sanction conduct, such as the failure to answer deposition questions, which delay or disrupt the litigation of a case.

Holding: Standard’s Motion to Compel was granted as to the unanswered deposition questions asked of Plaintiff Howell. If Plaintiff Howell were alive, the Court would have ordered him to be redeposed. However, because of Mr. Howell’s recent death, this remedy obviously was not available. Accordingly, the Court ordered that Howell’s attorney would be prohibited from introducing any evidence at trial regarding the questions Howell did not answer at his deposition.

Rationale: The court ruled that the conduct of Howell’s counsel at her client’s deposition was completely indefensible, and ran counter to numerous provisions in the Federal Rules of Civil Procedure and the Northern District of Texas’s standards for attorney conduct. The line of questioning pursued by Standard’s attorney was relevant, and the questions should have been answered. Federal Rule of Civil Procedure 30(d) regulates the behavior of the deponent’s lawyer “by forbidding a party to instruct a deponent to refuse to answer a question unless such an instruction is necessary to protect a privilege, to enforce a limitation on evidence imposed by the court, or to permit the making of a motion for a protective order.” As the questions asked by Standard’s attorney did not implicate any of these exceptions, Howell’s attorney should have placed her objection on the record and permitted her client to answer. If counsel believed that Standard’s attorney was conducting the deposition in bad faith or in a manner designed to annoy, embarrass, or harass Mr. Howell—and the Court’s review of the deposition transcript revealed no such conduct—then the proper procedure would have been to suspend the deposition and immediately present a motion to the court pursuant to Federal Rule of Civil Procedure 30(d)(3).


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Jones v. Mundy Contract Maint., Inc., No. H-01-2007, 2003 WL 25528965 (S.D. Tex. 2003)

Facts: Plaintiff William Jones moved for an order suspending counsel for the defendant and disqualifying defense counsel’s firm, in part based on conduct of defendant’s counsel during depositions.

Issue: May a court impose sanctions for abusive conduct during a deposition?

Rules of Law: Federal Rule of Civil Procedure 30(d) provides in relevant part that: “[i]f the court finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof.”

Rule 30(d) also states that counsel “should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer and that the making of an excessive number of unnecessary objections may itself constitute sanctionable conduct.”

Holding: The court denied Jones’s motion for sanctions, but ordered that one of the witnesses be produced for an additional brief deposition.

Rationale: The court ruled that a court may impose sanctions for abusive conduct during a deposition; however, the court determined that the conduct in this case was not sufficiently offensive to warrant imposing sanctions. In this case, the court conducted a careful review of the transcripts of the depositions and found that while defense counsel did object to the form of a number of the questions asked by counsel for Jones, the objections did not improperly frustrate the fair examination of the deponents, improperly suggest the answer, or unreasonably prolong the depositions. The court determined that the conduct in this case did not approach the type of conduct for which courts have imposed sanctions in other cases.


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Sanctions Imposed for Document Production Abuse

Chilcutt v. United States, 4 F.3d 1313 (5th Cir. 1993)

Facts: A postal customer filed an action against the Government under the Federal Torts Claims Act for injuries suffered from a slip and fall in a post office. The Government failed to sufficiently respond to the plaintiff’s discovery requests. The district court ordered the Government to produce previously requested documents and also ordered the United States Attorney to personally reimburse the plaintiff for fees that arose as a result of the Government’s discovery abuse. The Government then disobeyed the district court’s order to produce requested documents, and “attempted to deceive the court into believing that the documents either did not exist or were not properly requested.” The district court, under Rule 37 of the Federal Rules of Civil Procedure, deemed that the plaintiff’s prima facie case was established.

Issue: The Government and U.S. Attorney appealed the district court decision, claiming the district court abused its discretion in sanctioning them for production abuse.

Rules of Law: Federal Rule of Civil Procedure 37(b)(2) allows courts broad discretion to enforce sanctions on parties who disobey orders. However, this power is not unlimited. Sanctions under Rule 37(b) must be just, and “must specifically relate to the particular claim which was at issue in the order to provide discovery.” Thus, the goals of Rule 37 sanctions are fairness, a substantial relationship between the sanction and the claim, punishment of the obstructing party, and deterrence of discovery abuse in the future.

Holding: The sanctions order was affirmed.

Rationale: Parties were warned in each of the three scheduling orders, as well as the memoranda accompanying those orders, that discovery violations could result in dismissal or default judgment. The Government repeatedly promised to comply with discovery orders, and the plaintiff’s claim was far from frivolous. The Government withheld documents that it knew existed, and lied to the district court about the existence of those documents. There was no doubt that the accident log requested by plaintiff was known to the defendant. The log was strongly related to the plaintiff’s claim, and may have even proved that a number of other customers had also fallen in the same post office. In addition, the U.S. attorney has also previously been sanctioned for discovery abuse.



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Coane v. Ferrara Pan Candy Co., 898 F.2d 1030 (5th Cir. 1990)

Facts: Plaintiff Coane, an attorney, claimed he broke a tooth on a nonpareil made by Ferrara Pan Candy Company after eating a cookie purchased from Three Brothers Bakery. After receiving $3,500.00 in a state court settlement with Three Brothers, Coane brought suit against Ferrara. Coane failed to respond to a discovery request for his tax returns, even after a magistrate judge issued a motion to compel. The court sanctioned Coane, and awarded Ferrara a portion of its legal expenses, which were incurred by Ferrara filing motions to compel and dismiss. The motion to dismiss pertained to a settlement agreement that Coane had mistakenly represented to be an authentic copy of his agreement with Three Brothers. When Coane failed to produce his tax records, the district court dismissed Coane’s complaint, but retained jurisdiction in order to consider further sanctions. The court stated that the likelihood of Coane practicing before the Southern District of Texas in the future would be jeopardized if he failed to pay Ferrara the ordered sanctions.

Issue: Were the District Court’s sanctions against Coane for failure to produce tax records and production of an incorrect settlement agreement clearly erroneous?

Rules of Law: The award of attorney’s fees in connection with a motion to compel is authorized by Federal Rule of Civil Procedure 37(a)(4).

Rule 37(d) addresses sanctions for failing to answer interrogatories or to respond to requests for production. It has also been interpreted to include evasive or misleading responses. A failure to provide discovery does not need to be willful in order to trigger Rule 37(d) sanctions.

Rule 37(b)(2)(C) authorizes dismissal with prejudice when a party refuses to obey a discovery order. Dismissal with prejudice is usually appropriate where the refusal to comply is due to willfulness or bad faith, or if the refusal occurs along continuous delay or “contumacious conduct.” In addition, the misconduct must create substantial prejudice for the opposing party, so that a lesser sanction would be an inadequate deterrent.

Holding: The trial court’s sanctions regarding production were affirmed. In addition, the court further sanctioned Coane for making a frivolous appeal.

Rationale: Coane produced a copy of the settlement agreement that released all further actions against Three Brothers. Ferrara later discovered that the settlement agreement that was actually executed with Three Brothers contained a statement that preserved actions against the manufacturer. Even though Ferrara quickly brought this to the attention of the court, and the district court concluded that Coane’s error was not intentional, the court still found the mistake was “inexcusable,” bringing Coane’s misconduct under the scope of Rule 37(d). The court found that Coane alone should bear the costs for his cavalier attitude.



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Kamatani v. Benq Corp., 2005 WL 2455825 (E.D. Tex. 2005)

Facts: Benq refused to produce certain documents regarding a joint venture with a third party. The court issued the least sanction possible—a finding that the conduct was sanctionable—and warned Benq that failure to comply with discovery orders in the future would lead to a default judgment. Subsequently, Benq produced an unsigned copy of a memorandum relating to a joint venture, and informed the court that the signed version did not exist in its records. Immediately prior to depositions, Benq produced thirty-nine boxes of documents, one of which contained the signed copy.

Issue: What level of sanctions is appropriate for willfully concealing documents until the 11th hour, after claiming they did not exist?

Rules of Law: “A party is obligated to produce documents within its control, and its obligations are not limited to those documents within the party’s physical possession.” Documents are considered under a party’s control “when that party has the right, authority, or practical ability to obtain the documents from a nonparty to the suit.”

Federal Rule of Civil Procedure 37 authorizes sanctions for failure to comply with discovery orders. Sanctions may be used to bar the disobedient party from introducing evidence, or the court may accept certain facts as “established for purposes of the action.” Rule 37 also allows the court to strike the offender’s pleadings, to dismiss the claim, or to enter a default judgment against the disobedient party. Rule 37 sanctions should be applied to both penalize conduct deserving of sanctions and to deter similar conduct in the future.

Rule 37(b)(2) sanctions must be just and substantially related to the claim. The discovery violation must also be willful. Severe sanctions may only be imposed where a lesser sanction “would not substantially achieve the desired deterrent effect.”

In addition to Rule 37 sanctions, the inherent powers of the court allow it to impose the contempt sanction to maintain the authority and dignity of the court.

Holding: The Court struck any defense raised by Benq related to the joint venture agreement, pursuant to Federal Rule of Civil Procedure 37 and the Court’s inherent powers.

Rationale: Benq misrepresented its own efforts to search its records, its efforts to collect documents from third parties, and its relationship to other parties in the joint venture. Benq also attempted to circumvent the court’s Amended Discovery Order.


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Merrill v. Waffle House, Inc., 227 F.R.D. 475 (N.D. Tex. 2005)

Facts: Plaintiffs asserted a claim of race discrimination under 42 U.C.S. § 1981 and 42 U.S.C. § 2000(a). Defendant argued that the information sought by plaintiff’s discovery requests was irrelevant to plaintiff’s claims. Plaintiffs filed a motion to compel. The magistrate judge granted this motion in part, finding that defendant had failed to prove that plaintiff’s discovery requests were irrelevant to its punitive damages claim. The discovery request required Defendant to produce records of the compensation of its top three executives, financial projections, comparative annual profits of the Euless Waffle House, amounts paid to settle prior race discrimination lawsuits, and the amount of funds spent annually on training expenses.

Issue: Defendant filed objections to the magistrate judge’s order that granted in part Plaintiff’s Motion to Compel. The principal objection was that the magistrate judge erred in assigning the parties’ burdens of proof.

Rules of Law: A party who opposes its opponent’s request for production must “show specifically how each request is not relevant or how each request is overly broad, burdensome, or oppressive.”

Holding: Defendant’s objections to the magistrate judge’s order were overruled.

Rationale: Salary figures do not create the same risk of the disclosure of private information as tax returns and should be disclosed. Discovery seeking disclosure of nation-wide profits did not create an undue burden, and the scope of discovery was appropriate in light of Plaintiffs’ claims. Settlement records, even if confidential, are relevant for discovery when the Plaintiff expressly seeks punitive damages and wishes to compare defendant’s past settlements to amounts spent on anti-discrimination training.


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McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482 (5th Cir. 1990)

Facts: Quarles responded to discovery requests with objections and produced no documents. He also filed a motion for protective order, and for sanctions against the firm for propounding discovery to him. Quarles’s motions were denied by a magistrate judge, who then issued an order requiring completion of the discovery. Quarles still objected to McLeod’s discovery requests and produced nothing. The magistrate found that Quarles’s discovery abuses were willful and made in bad faith, and recommended that Quarles’s answers be stricken, and that a default judgment be entered for McLeod. The district court adopted the magistrate’s recommendations.

Issue: Did the district court abuse its discretion in adopting the magistrate’s recommendations and taxing attorney’s fees against Quarles?

Rules of Law: Under Federal Rule of Civil Procedure 26(b), discovery requests are relevant that seek information that is either “admissible or reasonably calculated to lead to the discovery of admissible evidence.” A party who is resisting discovery “must show specifically how each interrogatory is not relevant or how each question is overly broad, burdensome, or oppressive.”

An order from a court to compel production is not always a necessary prerequisite to an imposition of sanctions. Generally, when a party has received adequate notice that discovery should occur by a certain date, the court may impose sanctions without a formal motion to compel if the party fails to comply.

Under Rule 16(f), if a party disobeys pretrial orders, then the judge may sanction the parties pursuant to rule 37(b), which encompasses the ability of the court to enter a default judgment.

Holding: The magistrate judge’s denial of the protective order and the district court’s adoption of the magistrate’s recommendations were not abuses of discretion.

Rationale: It would have been an abuse of discretion for the magistrate judge to grant a protective order based on broad conclusory objections made without any mention of the factors in Rule 26(b).

Even absent an order to compel, Quarles violated an order of the court. The court issued an order requiring that discovery be completed by a certain date. The order even expressly warned that failure to comply would result in sanctions under Federal Rule of Civil Procedure 16(f). Had Quarles merely failed to respond properly to the firm’s first set of discovery requests, he may have been able to argue against the court’s findings of willfulness and bad faith. However, once Quarles’s motion for a protective order was denied by the magistrate, the district court was certainly within its discretion in concluding that the defendant’s further actions of non-compliance with the magistrate’s orders were willful and in bad faith. The district court’s decision to strike Quarles’s answers and enter a default judgment was justified after these abuses.



18

Sanctions Imposed for Local Rule Violations

United States v. Bledsoe, No. SA-08-CR-13(2)-XR, 2008 U.S. Dist. LEXIS 49077 (W.D. Tex. June 4, 2008)

Facts: In Defendant’s motion for revocation or amendment of detention order, defense counsel made the following statements:

“Too often, the judiciary has been quick to grasp on quack science to find culpability only to learn that the science was bad.”

“Such fallacy of thinking [referring to the magistrate judge] reminded me of the closing scene in the movie Judgment at Nuremberg. There, the distinguished German jurist Ernst Janning (played by Burt Lancaster) had been found guilty and sought out Judge Dan Haywood (played by Spencer Tracy) to tell him that he never knew that his rulings would lead to the Nazi atrocities. Judge Haywood softly but profoundly told him, ‘Ernst Janning, you knew it would lead to this the first time you sentenced an innocent man to death.’”

“One should at least attempt out-patient treatment before using the ultimate weapon in the judicial arsenal. It should be noted that the same type revocation hearing was held right before defendant’s case for a Caucasian whose urine tested for a Schedule II narcotic. The Caucasian received rehabilitation; my African-American defendant received detention. The disparity in treatment was embarrassing for our profession.”

Issue: Whether, under Western District of Texas local rules, an attorney who makes such statements displays a disrespectful attitude towards judges or court staff.

Rules of Law: Western Texas Local Rule AT-5 provides that a lawyer must “display a courteous, dignified and respectful attitude toward the judge presiding, not for the sake of the judge’s person, but to show respect for and confidence in the judicial office.”

Holding: Judge included an admonition for the attorney in the order denying Defendant’s motion for revocation or amendment of detention order.

Rationale: The statements did not display a courteous, dignified, and respectful attitude towards the magistrate judge. Lawyer’s statements were unprofessional and inappropriate. Implying that a magistrate judge’s actions are similar to conduct that fostered Nazi atrocities is unacceptable under local conduct rules. While this was not a factor in the Judge’s decision to deny the Defendant’s motion, the Judge included it in the order to admonish the lawyer against similar conduct in the future.


19

Steinberg v. Alvarado (In re Alvarado), No. Civ.SA-03-CA-0295-RF, 2003 WL 22097092 (W.D. Tex. 2003)

Facts: Bankruptcy court ordered attorney to be disbarred and prevented from practicing bankruptcy within the Western District of Texas.

Issue: Whether, under Western District of Texas local rules, a Motion to Show Cause filed by a Trustee provided attorney with sufficient notice of disbarment so that bankruptcy judge could issue and order of disbarment

Rules of Law: While bankruptcy courts have discretion to impose sanctions based on 11 U.S.C. § 105(a), that power is constrained by the requirements of due process.

Holding: Order vacated and remanded for further proceedings. An attorney must have proper notice of the possibility of the imposition of sanctions prior to a hearing where they might be imposed.

Rationale: Section 105(a) provides that a bankruptcy court “may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title." This statute has allowed bankruptcy courts both the statutory and inherent authority to deny the privilege of practicing before that bar.

Despite the clear record indicating a lack of proper conduct on the part of the attorney, the lack of procedural due process raised concerns with the district court. The trustee’s motion to Show Cause indicated that the hearing would be about fees the attorney had charged, and did not indicate that the attorney would need to show cause why sanctions should not be imposed. The attorney was not given notice of the possibility of sanctions, nor a chance to present evidence or arguments against their imposition. The district court held that because the notice did not specify that the attorney would be required to defend himself against disciplinary sanctions, notice was not sufficient.


20

In re Luna, No. SA-03-CA-0472-XR, 2004 U.S. Dist. LEXIS 13518 (Bankr. W.D. Tex. 2004)

Facts: Bankruptcy judge ordered attorney suspended from practicing before the Bankruptcy Courts for the Western District of Texas.

Issue: Whether, under Western District of Texas local rules, a bankruptcy judge may issue an order disbarring an attorney from practicing before the Bankruptcy Courts for the Western District of Texas.

Rules of Law: While a court has the power to discipline attorneys appearing before it, this procedure must conform to the requirements of due process. Western District of Texas Local Rule AT-1 provides that an attorney will be referred to the disciplinary committee if the attorney either represents a client in such a fashion as to raise a serious question concerning the need to improve the quality of the attorney’s professional performance or presents an impediment to the orderly administration of justice and/or the integrity of the Court.

Holding: Order vacated and remanded. A judge does not have the authority to unilaterally disbar an attorney in a disciplinary hearing.

Rationale: Any court has the power to discipline attorneys appearing before it. However, disbarment and suspension, the most grievous sanctions which may be imposed on an attorney, may not be imposed by the court. Before this sanction may be imposed, local rules require an administrative hearing. Such procedures, while not necessary when imposing other sanctions or finding an attorney in contempt, are necessary when disbarring an attorney. In the present case, the bankruptcy judge issued an order disbarring the attorney rather than referring the attorney to the local disciplinary committee.


21

In re Jaques, 972 F. Supp. 1070 (E.D. Tex. 1997)

Facts: The judges of the Eastern District of Texas initiated disciplinary proceedings against attorney for violation of Eastern District of Texas Local Court Rule 3(a). The court limited its inquiry to the following previously adjudicated matters:

1. The United States District Court for the Eastern District of Michigan sanctioned Jaques for physically assaulting opposing counsel in open court during a recess in a trial.

2. The United States District Court for the Eastern District of Texas sanctioned Jaques for abusive and disruptive behavior during his deposition.

Issue: Whether the previously adjudicated actions concerning the attorney were sufficient cause for the Eastern District of Texas to suspend Jaques.

Rules of Law: Eastern District of Texas Local Court Rule 3 provides that disciplinary action may be initiated against any member of the Bar for conduct unbecoming a member of the Bar, failure to comply with local rules, unethical behavior, or inability to conduct litigation properly.

Holding: Jaques was suspended for three years from practicing before the Courts of the Eastern District of Texas.

Rationale: Federal courts have the authority to promulgate and enforce local rules to govern the administration of judicial business. Attorney’s conduct was found to be unbecoming of a member of the Bar. Further, such conduct indicated his inability to properly discharge his duties as an officer of the court. For these reasons, Jaques was suspended from practicing before the Courts of the Eastern District of Texas.

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=US_distctopinions&volume=972&edition=F.Supp.&page=1070&id=17528_01


22

Texas v. Florance, No. 4:06cv510, 2008 WL 839736 (E.D. Tex. Mar. 27, 2008)

Facts: Pro se defendant used abusive language in motions and objections.

Issue: Whether, under Eastern District of Texas local rules, abusive language may be used in motions and objections by pro se parties.

Rules of Law: Eastern District of Texas Local Rule AT-5 provides that a lawyer must “display a courteous, dignified and respectful attitude toward the judge presiding, not for the sake of the judge’s person, but to show respect for and confidence in the judicial office.” For purposes of this rule, a person representing himself/herself pro se is treated is as if he/she is a lawyer.

Holding: Objections and motions were stricken from consideration. Abusive language may not be used before the court, regardless of whether the person is an attorney or a pro se party.

Rationale: The use of abusive language before the court does not display the respect and professionalism with which the court and opposing counsel should be treated.


23

Graham v. Dallas Indep. Sch. Dist., No. 3: 04-CV-2461-B, 2006 WL 2468715 (N.D. Tex. August 24, 2006)

Facts: In a 16-page responsive pleading that was not filed in a timely manner, attorney did not include citations to the 275-page appendix of evidence. Additionally, the attorney failed to comply with other orders issued by the court.

Issue: Whether the court has discretion to impose sanctions upon attorneys based on violations of local rules.

Rules of Law: Northern District Local Civil Rule 56.5(c) provides that a “party whose motion or response is accompanied by an appendix must include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence.”

Holding: Sanctions of $7,000.00 were imposed on the attorneys.

Rationale: Local Civil Rule 56.5(c) governs a court’s determination of whether a genuine issue of material fact exists. The attorney had increased the workload of the court by not conforming to the requirements of Rule 56.5(c). Additionally, attorney had engaged in a continuous pattern of discovery abuse. The court declined to excuse any further violations of local rules.


24

Threatening Witnesses

Kelly v. Pan. Canal Comm’n, 26 F.3d 597 (5th Cir. 1994)

Facts: A captain was killed when the catamaran’s mast struck electrical wires. His widow brought a wrongful death claim against the Panama Canal Commission. The Commission’s attorney threatened the widow’s witness with 18 U.S.C. §§ 203 and 205 criminal sanctions if he testified. The Commission’s attorney was sanctioned in the amount of $2,150.00.

Issue: Whether the court erred in sanctioning the Commission’s attorney for intimidating a witness.

Rule of Law: Threatening witnesses with baseless criminal sanctions is a serious infraction and thus sanctionable.

Holding: The court did not err in awarding sanctions against the Commission’s attorney.

Rationale: The district court did not abuse its discretion in imposing sanctions against the Commission’s attorney. An attorney who threatens witnesses commits a serious infraction. The two sections the Commission’s attorney relied upon to threaten the witness address government officials’ compensations and their activities. Under these sections, testifying under oath is excluded from punishment and sanction.



25

Kindred v. Columbus Country Club, Inc., 918 So.2d 719 (Miss. Ct. App. 2004)

Facts: On their wedding night, a groom and his bride were driving to their honeymoon destination. As they passed a country club, part of a tree fell on their car killing the bride. The groom sued the country club. The country club’s attorney threatened the groom’s witness that if he testified, he may be put in jail. The witness testified and was arrested about twenty minutes later.

Issue: Whether the court erred in denying a new trial as a sanction against the country club’s attorney for intimidating the groom’s witness.

Rules of Law: Granting a new trial involves the discretion of the court. It should be granted only when a review of the record gives the court a firm and definite assurance that if the verdict stands it would create a miscarriage of justice.

Holding: The court did not abuse its discretion when it refused to grant a new trial as a sanction.

Rationale: The court noted that threatening witnesses to prevent them from testifying is improper and does not condone the tactics employed. However, because the witness testified anyway, the court was unable to see how the groom was prejudiced. The evidence did not suggest that the witness testified falsely as a result of the threat. Additionally, the incident was not brought to the court’s attention before the witness testified.

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=MS_caselaw&volume=918&edition=So.2d&page=719&id=17528_01


26

Application of the Guidelines of Professional Courtesy

Dondi Properties Corp. v. Commerce Sav. & Loan Ass’n., 121 F.R.D. 284 (N.D. Tex. 1988)

Facts: The United States District Court for the Northern District of Texas convened en banc for the purpose of establishing standards of litigation conduct to be observed in civil actions in the district.

Parties had combined to file over twenty (20) motions with the court requesting sanctions resulting from the plaintiff’s failure to comply with discovery requests. Defendant had requested that plaintiff’s attorney be sanctioned for failing to identify himself as an attorney during phone conversations.

Issues: (1) Whether a district court may properly adopt rules of professional conduct; (2) Whether a court may properly award sanctions based on conduct by an attorney that is not prejudicial to his adversaries.

Rule of Law: The courts have the duty and responsibility to disqualify counsel for unethical conduct prejudicial to his adversaries.

Holding: The court adopted the Dallas Bar Association’s “Guidelines of Professional Courtesy” as part of the standards of practice for the Northern District.

The Court denied the motions for sanctions.

Rationale: Ensuring that members of the legal profession comply with ethical standards should be a matter of concern to all attorneys, and alleged breaches should be brought to the attention of the grievance committee by an attorney without charge to a client. Except in those instances in which an attorney’s conduct prejudicially affects the interest of a party opponent or impairs the administration of justice, adjudication of alleged ethical violations is more appropriately left to grievance committees constituted for such purpose. Finally, when an attorney’s conduct is prejudicial to a party opponent or affects the administration of justice, it is appropriate to seek sanctions from the court.


27

Lelsz v. Kavanagh, 137 F.R.D. 646 (N.D. Tex. 1991)

Facts: During the course of a trial, Attorney, a Texas Assistant Attorney General, engaged in ad hominem attacks, made last-minute filings, filed motions in bad faith, and behaved in an obstructionist manner.

Issue: Whether attorney’s conduct during the course of litigation was sufficient cause for the Eastern District of Texas to remove attorney from further participation in the case.

Rules of Law: Northern District of Texas Local Rules allow for the imposition of discipline for consistent disregard of local rules, procedural rules, or sheer inability to conduct litigation properly. In Dondi Properties Corp. v. Commerce Savings & Loan Association, the Northern District of Texas, sitting en banc, adopted the Dallas Bar Association’s “Guidelines of Professional Courtesy” as standards for attorney conduct. 121 F.R.D. 284 (N.D. Tex. 1988).

Holding: Attorney was removed from further participation in the case.

Rationale: Attorney’s conduct repeatedly violated the standards of conduct established by the Court. Despite repeated warnings from the Court, Attorney continued her pattern of combative and improper conduct. Rather than focusing on the administration of the case, the Court had to divert its attention to the disciplinary hearing. Rather than imposing a fine on the Texas Attorney General’s office, removal was appropriate because it would send an appropriate message directly to the attorney responsible without imposing hardship upon her office, client, or staff.


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ETHICS AND PROFESSIONALISM

Prepared by Tonya Cox∗

∗ Texas Southern University, Juris Doctor Candidate May 2010; [email protected]


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ETHICS AND PROFESSIONALISM

Professionalism is defined, in its broadest sense, as “an aspirational standard of conduct

that exceeds the mandates of the Disciplinary Rules of Professional Conduct.” Jewel Arrington,

Everyday Professionalism, 56 TEX. B.J. 232, 232 (1993). The ideal of “Professionalism” has

been a concern that members of the legal profession have continued to prolifically address for

many decades. The American Bar Association (ABA) promulgated the Model Code of

Professional Responsibility in 1969 and individual states and bar associations adopted their own

Code of Professional Responsibility since then. In the latter part of the 1980s, the Supreme

Court of Texas and the State Bar of Texas began a program to push the lawyers of Texas toward

“Professionalism,” an effort to advise legal professionals of their duties to the public, to each

other, to the courts, and to their clients. By an order dated November 7, 1989, the Supreme

Court of Texas and the Court of Criminal Appeals of Texas, acting jointly, promulgated the

Texas Lawyers Creed—A Mandate for Professionalism (adopted November 7, 1989), reprinted

in TEXAS RULES OF COURT 501 (West 1995). The order of the Supreme Court and the

Court of Criminal Appeals adopting the Creed states:

The desire for respect and confidence by lawyers from the public should provide the members of our profession with the necessary incentive to attain the highest degree of ethical and professional conduct. These rules are primarily aspirational. Compliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon re-enforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts through their inherent powers and rules already in existence.

Order Adopting the Texas Lawyer’s Creed—A Mandate for Professionalism, (adopted Nov. 7,

1989) (emphasis in original).

Additionally, in an attempt to induce ethical behavior among legal professionals, the

Texas Disciplinary Rules of Professional Conduct were adopted in 1989, which provides


30

“minimum standards of conduct below which no lawyer can fall without being subject to

disciplinary action.” TEX. DISCIPLINARY R. PROF. CONDUCT preamble ¶ 7. Moreover, as

recently as 1995, the State Bar of Texas Board of Directors instituted the Professionalism

Enhancement Program, which was also designed to address professionalism issues for lawyers.

According to the ABA’s Center for Professional Responsibility, Texas is among several

states that exhibit a commitment to professional responsibility. One example of this commitment

is demonstrated through the Houston and Dallas Bar Associations, which each have adopted a

variety of codes relating to professional responsibility. In 1989, the Houston Bar Association

adopted Professionalism: A Lawyer’s Mandate, which, similar to the Texas Lawyers Creed, has

sections specifically addressing relations with clients, relations with other lawyers, conduct in

court and an additional section dealing with the administration of justice and discovery. The

Dallas Bar Association has also adopted Guidelines of Professional Courtesy and Lawyers

Creed. See the following seven pages for a comparative chart of professional codes from the

Center for Legal Ethics and Professionalism, the Houston Bar Association, and the Dallas Bar

Association:1

1 This chart is not a comprehensive list of the various codes cited.


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Professionalism Codes

Description of Conduct

Texas Center for Legal Ethics and

Professionalism:

The Texas Lawyer’s Creed

Houston Bar Association:

Professionalism:

A Lawyer’s Mandate

Dallas Bar Association:

Guidelines of Professional

Courtesy and Lawyer’s Creed

Relations with Clients

I will endeavor to achieve my client’s lawful objectives in business transactions and in litigation as expeditiously and economically as possible.

I will endeavor to achieve my client’s lawful objectives in business transactions and in litigation as expeditiously and economically as possible.

NONE

I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.

A client has no right to demand that I abuse the opposite party or counsel or indulge in other offensive conduct. I will always treat adverse parties and witnesses with fairness and due consideration.

The client has no right to demand that counsel abuse the opposite party or indulge in offensive conduct. If representation involves litigation, a lawyer shall always treat adverse witnesses and suitors with fairness and due consideration.

I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.

I will advise my client that we will not pursue tactics which are intended primarily for delay.

I will advise my client that we will not pursue any course of action which is without merit.

I will advise my client against pursuing litigation (or any other course of action) that is without merit and against insisting on tactics which are intended primarily to delay resolution of any matter or to harass or drain the financial resources of the opposing party.

NONE


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Professionalism:



Professionalism:





I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes.

When appropriate, I will counsel my client with respect to mediation, arbitration, and other alternative methods or resolving disputes.

NONE

I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client’s lawful objectives. A client has no right to instruct me to refuse reasonable requests made by other counsel.

NONE If a fellow member of the Bar makes a just request for cooperation, or seeks scheduling accommodation, I will not arbitrarily or unreasonably withhold consent.

Relations with Other Lawyers

I will be courteous, civil, and prompt in oral and written communications.

I will be courteous, civil, and prompt in oral and written communications.

NONE

I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.

I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.

NONE

I will not serve motions or pleadings in any manner that unfairly limits another party’s opportunity to respond.

I will not serve motions and pleadings at such a time or in such a manner as will unfairly limit the other party’s opportunity to respond.

Lawyers should not attempt to unfairly gain advantage by delay in service of pleadings or correspondence upon opposing counsel.


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Professionalism:



Professionalism:





I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected.

In litigation proceedings, I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided a legitimate interest of my client will not be adversely affected.

Reasonable extensions of time should be granted to opposing counsel where such extension will not have a material, adverse effect on the rights of the client.

I will not quarrel over matters of form or style, but I will concentrate on matters of substance.

In business transactions, I will not quarrel over matters of form or style, but will concentrate on matters of substance.

NONE

I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences, or closings are cancelled.

When scheduled hearings or depositions are cancelled, I will notify opposing counsel, and, if appropriate, the Court (or other tribunal) as soon as practicable.

Notice of cancellation of depositions and hearings should be given to the Court and opposing counsel at the earliest possible time.


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Professionalism:



Professionalism:





I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feelings between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.

NONE In any matter, though ill feeling may exist between clients, such ill feeling should not influence a lawyer’s conduct, attitude, or demeanor towards opposing lawyers.

I will promptly submit Orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the Court. I will promptly approve the forms of Orders, which accurately reflect the substance of the rulings of the Court.

NONE Proposed Orders to be submitted to the Court should be prepared promptly, and should be submitted to opposing counsel before or contemporaneously with submission to the Court.

Conduct in Court

I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.

NONE I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.


35



Professionalism:



Professionalism:





I will treat counsel, opposing parties, witnesses, the Court, and members of the Court staff with courtesy and civility and will not manifest by words or conduct bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation.

I will treat opposing counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility.

Lawyers should treat all people, including but not limited to other lawyers and the opposing party, and if a matter involves litigation, the Court and the members of the Court staff with courtesy and civility; lawyers must conduct themselves in a professional manner at all times.

I will advise my client of proper and expected behavior.

I will advise my client of the behavior expected of him or her.

NONE

I will be punctual. I will be punctual so that preliminary matters may be disposed of in order to start the trial, hearing, or conference on time.

I will strive to be punctual in communications with others and in honoring scheduled appearances, and I recognize that neglect and tardiness are demeaning to me and to the profession.

Administration of Justice and Discovery

I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.

NONE Lawyers should not attempt to unfairly gain advantage by delay in service of pleadings or correspondence upon opposing counsel.


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Professionalism:



Professionalism:





I will refrain from excessive and abusive discovery.

I will refrain from excessive and abusive discovery, and I will comply with all reasonable discovery requests.

Requests for production should not be excessive or designed solely to place a burden on the opposing party, for such conduct in discovery only increases the costs, duration, and unpleasantness of any case.

I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.

If the matter does not merit the filing of a motion or an agreed Order, I will not unnecessarily involve the Court or its staff with correspondence or with copies of correspondence to opposing counsel.

Lawyers should avoid arguments or posturing through unnecessary inclusion of the court in correspondence. If a matter does not merit the filing of a motion or of an agreed Order, it probably does not warrant involving the judge or clerk in correspondence or with copies of correspondence to the opponent. Only correspondence, which has been requested by the Court, or is merely filed to record the service of documents, should be sent to the court.

NONE Ordinarily, I will not give notice of a deposition or hearing until an effort has been made to schedule it by agreement.

Lawyers should make reasonable efforts to conduct all discovery by agreement.


37



Professionalism:



Professionalism:





I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process.

NONE I will not abuse the system or the profession by pursuing or opposing discovery through arbitrariness or for the purpose of harassment or undue delay.


38

LOCAL RULES FOR ALL DISTRICT COURTS WITHIN TEXAS


39

Local Rules Governing Grounds for Disciplinary Action

District Specific Rule Language of Rule

Northern District

N.D. Tex. R. Civ. 83.8(b); N.D. Tex. R. Crim. 57.8(b)

Grounds for Disciplinary Action. A presiding judge, after giving opportunity to show cause to the contrary, may take any appropriate disciplinary action against a member of the bar for: (1) conduct unbecoming a member of the bar; (2) failure to comply with any rule or order of this court; (3) unethical behavior; (4) inability to conduct litigation properly; (5) conviction by any court of a felony or crime involving dishonesty or false statement; or (6) having been publicly or privately disciplined by any court, bar, court agency or committee.

Southern District

S.D. Tex. R., App. A, R. 1

A. Lawyers who practice before this court are required to act as mature and responsible professionals, and the minimum standard of practice shall be the Texas Disciplinary Rules of Professional Conduct. B. Violation of the Texas Disciplinary Rules of Professional Conduct shall be grounds for disciplinary action, but the court is not limited by that code.

Eastern District

E.D. Tex. R. AT-2(d)(1)

This court may, after an attorney has been given an opportunity to show cause to the contrary, take any appropriate disciplinary action against any attorney: (A) for conduct unbecoming a member of the bar; (B) for failure to comply with these local rules or any other rule or order of this court; (C) for unethical behavior; (D) for inability to conduct litigation properly; or (E) because of conviction by any court of a misdemeanor offense involving dishonesty or false statement.

Western District

W.D. Tex. R. AT-7(c)

An attorney may be referred by any Magistrate Judge, Bankruptcy Judge or District Judge to the District Disciplinary Committee for appropriate review, investigation, and recommendation if there is reason to believe that the attorney: (1) has been convicted of a felony offense or a crime involving dishonesty or false statement in any state or federal court; (2) had his or her license to practice law in any jurisdiction suspended, revoked, or otherwise limited by any appropriate disciplinary authority; (3) resigned his or her license to practice law in any state or any federal court; (4) has engaged in conduct that violates the Texas Disciplinary Rules of Professional Conduct; (5) fails to comply with any rule or order issued by a judge of this court; (6) presents an impediment to the orderly administration of justice or the integrity of the court; or (7) represents a client in such a manner as to raise a serious question concerning the quality of the attorney’s professional performance.


40

Local Rules Governing Appeal of Disciplinary Action


Northern District

N.D. Tex. R. Civ. 83.8(c); N.D. Tex. R. Crim. 57.8(c)

Repealed

Southern District

S.D. Tex. R., App. A, R. 5(G)

The decision of the hearing judge is final, except that, within 10 days, the lawyer may appeal the judgment by filing a notice of appeal. A panel of three district judges of the court, randomly assigned, will hear the appeal. The appeal shall be on the record developed at the hearing. Facts found by the hearing judge are not reviewable unless clearly erroneous. The law determined by the hearing judge is reviewable de novo. The decision of the panel is final. There is no en banc review.

Eastern District

N/A N/A

Western District

W.D. Tex. R. AT-7(g)

Determination by a District Judge. --Within 5 days after receipt of the summary final report and recommendation, the respondent may contest any recommendation by written submission to the chief judge. Whether contested or not, the chief judge will assign the matter to a district judge for determination. The judge may conduct a hearing, and may appoint any member of the court’s bar to assist in the hearing. The judge’s decision as to whether disciplinary action is warranted, and what sanction to impose, is a final ruling of the court.


41

Local Rules Governing Standards of Practice


Northern District

N.D. Tex. R. Civ. 83.16; N.D. Tex. R. Crim. 53.2

All persons present in a courtroom where a trial, hearing, or other proceeding is in progress must dress and conduct themselves in a manner demonstrating respect for the court. The presiding judge shall have the discretion to establish appropriate standards of dress and conduct.

Southern District

S.D. Tex. R., App. C;

Courtroom Etiquette. People who appear in court must observe these and other conventions of courteous, orderly behavior. A. Be punctual. B. Remain in attendance until excused. All persons sitting before the bar shall remain there during each session and return after recess. Parties and counsel must remain in attendance during jury deliberations; absence waives the right to attend the return of the verdict. C. Dress with dignity. D. Address others only by their titles and surnames, including lawyers, witnesses, and court personnel. E. Stand when the Court speaks to you; stand when you speak to the Court. Speak only to the Court, except for questioning witnesses and, in opening and closing, addressing the jury. F. Avoid approaching the bench. Counsel should anticipate the necessity for rulings and discuss them when the jury is not seated. When a bench conference is unavoidable, get permission first. G. Hand to the clerk, not the judge or reporter, all things for examination by the judge. H. Stand when the judge or jury enters or leaves the courtroom. I. Contact with the law clerks is ex parte contact with the Court. Contact must be through the case manager. J. Assist the summoning of witnesses from outside the courtroom. Furnish the clerk and marshal with a list of witnesses showing the order they are likely to be called. K. Question witnesses while seated at counsel table or standing at the lectern. When it is necessary to question a witness about an exhibit, ask permission to approach the witness. L. Conduct no experiment or demonstration without permission. M. Do not participate in a trial as an attorney if you expect you may be called as a material witness. N. Avoid disparaging remarks and acrimony toward counsel, and discourage ill will between the litigants. Counsel must abstain from unnecessary references to opposing counsel, especially peculiarities. 0. Make no side-bar remarks. P. Counsel are responsible for advising their clients, witnesses, and associate counsel about proper courtroom behavior. Q. Request the use of easels, light boxes, and other equipment well in advance so that they may be set up while the Court is not in session.


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S.D. Tex. R., App. D

Guidelines for Professional Conduct A. In fulfilling his or her primary duty to the client, a lawyer must be ever conscious of the broader duty to the judicial system that serves both attorney and client. B. A lawyer owes, to the judiciary, candor, diligence and utmost respect. C. A lawyer owes, to opposing counsel, a duty of courtesy and cooperation, the observance of which is necessary for the efficient administration of our system of justice and the respect of the public it serves. D. A lawyer unquestionably owes, to the administration of justice, the fundamental duties of personal dignity and professional integrity. E. Lawyers should treat each other, the opposing party, the court, and members of the court staff with courtesy and civility and conduct themselves in a professional manner at all times. F. A client has no right to demand that counsel abuse the opposite party or indulge in offensive conduct. A lawyer shall always treat adverse witnesses and suitors with fairness and due consideration. G. In adversary proceedings, clients are litigants and though ill feeling may exist between clients, such ill feeling should not influence a lawyer’s conduct, attitude, or demeanor towards opposing lawyers. H. A lawyer should not use any form of discovery, or the scheduling of discovery, as a means of harassing opposing counsel or counsel’s client. I. Lawyers will be punctual in communications with others and in honoring scheduled appearances, and will recognize that neglect and tardiness are demeaning to the lawyer and to the judicial system. J. If a fellow member of the Bar makes a just request for cooperation, or seeks scheduling accommodation, a lawyer will not arbitrarily or unreasonably withhold consent. K. Effective advocacy does not require antagonistic or obnoxious behavior and members of the Bar will adhere to the higher standard of conduct which judges, lawyers, clients, and the public may rightfully expect.


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Eastern District

E.D. Tex. R. AT-3

Attorneys who appear in civil and criminal cases in this court shall comply with the following standards of practice in this district: (A) In fulfilling his or her primary duty to the client, a lawyer must be ever conscious of the broader duty to the judicial system that serves both attorney and client. (B) A lawyer owes, to the judiciary, candor, diligence and utmost respect. (C) A lawyer owes, to opposing counsel, a duty of courtesy and cooperation, the observance of which is necessary for the efficient administration of our system of justice and the respect of the public it serves. (D) A lawyer unquestionably owes, to the administration of justice, the fundamental duties of personal dignity and professional integrity. (E) Lawyers should treat each other, the opposing party, the court, and members of the court staff with courtesy and civility and conduct themselves in a professional manner at all times. (F) A client has no right to demand that counsel abuse the opposite party or indulge in offensive conduct. A lawyer shall always treat adverse witnesses and suitors with fairness and due consideration. (G) In adversary proceedings, clients are litigants and though ill feeling may exist between clients, such ill feeling should not influence a lawyer’s conduct, attitude, or demeanor towards opposing lawyers. (H) A lawyer should not use any form of discovery, or the scheduling of discovery, as a means of harassing opposing counsel or counsel’s client. (I) Lawyers will be punctual in communications with others and in honoring scheduled appearances, and will recognize that neglect and tardiness are demeaning to the lawyer and to the judicial system. (J) If a fellow member of the Bar makes a just request for cooperation, or seeks scheduling accommodation, a lawyer will not arbitrarily or unreasonably withhold consent. The Court is not bound to accept agreements of counsel to extend deadlines imposed by rule or court order. (K) Effective advocacy does not require antagonistic or obnoxious behavior and members of the Bar will adhere to the higher standard of conduct which judges, lawyers, clients, and the public may rightfully expect. The Court also encourages attorneys to be familiar with the Codes of Pretrial and Trial Conduct promulgated by the American College of Trial Lawyers, which can be found on the Court’s website at, and to conduct themselves accordingly.

Western District

W.D. Tex. R. AT-7 (a)

Members of the bar of this court and any attorney permitted to practice before this court must comply with the standards of professional conduct set out in the Texas Disciplinary Rules of Professional Conduct, Texas Government Code, Title 2, Subtitle G, App. A, art. X, sec. 9 (Vernon) which are hereby adopted as the standards of professional conduct of this court. This specification is not exhaustive of the standards of professional conduct. For matters not covered by the Texas rules, the American Bar Association’s Model Rules of Professional Conduct should be consulted.


44

Local Rules Governing Procedure for Loss of Bar Membership


Northern District

N.D. Tex. R. Civ. 83.8(a); N.D. Tex. R. Crim. 57.8(a)

A member of the bar of this court is subject to suspension or disbarment by the court under the following circumstances: (1) if for any reason other than nonpayment of dues, failure to meet continuing legal education requirements, or voluntary resignation unrelated to a disciplinary proceeding or problem, an attorney loses, either temporarily or permanently, the right to practice law before: (A) the courts of the State of Texas; (B) the highest court of any other state or the District of Columbia; or (C) any federal court; or (2) if an attorney fails to maintain the right to practice law before the highest court of at least one state or the District of Columbia, unless the member’s failure to maintain such right results from nonpayment of dues or failure to meet continuing legal education requirements.

Southern District


Rule 5. Charges of Misconduct Warranting Discipline. A. Charges that any lawyer of this bar has engaged in conduct which might warrant disciplinary action shall be brought to the attention of the court by a writing addressed to the chief judge with a copy to the clerk of court. B. Upon receipt of a charge that is not frivolous, the chief judge shall order the clerk to file the charge and randomly assign it to a district judge for review to determine whether further disciplinary proceedings should be held. The reviewing judge shall notify the charged lawyer of the charges made and give that lawyer an opportunity to respond. If the charge is made by a bankruptcy judge or is one occurring in bankruptcy court, the clerk may assign the charge to a bankruptcy judge, who may serve as reviewing judge. The chief judge may elect to forego the review procedures of this paragraph if, in the judgment of the chief judge, the information provided to the chief judge with the charge is sufficiently clear to warrant further disciplinary proceedings of paragraph 5 (C), et seq. C. After review, the judge will, by written report, recommend to the chief judge whether further disciplinary proceedings should be heard and the charges to be heard. If further proceedings are recommended, the chief judge shall order further hearings to be held before a district judge, who may have been the reviewing judge. D. The hearing judge will give at least 14 days notice to the charged lawyer of the time of the hearing, the charges and the right to counsel at the hearing. The hearing shall be held on the record in open court as a miscellaneous proceeding. Rule 1101(d)(3), Federal Rules of Evidence applies, and all witnesses shall be sworn. E. In the hearing of charges before the hearing judge, the prosecution shall be by an attorney specially appointed by the hearing judge. Costs of the prosecutor and fees allowed by the hearing judge may be paid from the Attorney Admissions Fund. F. The hearing judge shall file his judgment, providing a copy to the chief judge and the lawyer. If the hearing judge determines that disciplinary action should be taken, the judge shall make findings of violations and order either permanent disbarment, a suspension, a written or oral reprimand and whether such should be public or private with such conditions as the judge may order. G. The decision of the hearing judge is final, except that, within 10 days, the lawyer may appeal the judgment by filing a notice of appeal. A panel of three district judges of the court, randomly assigned, will hear the appeal. The appeal shall be on the record developed at the hearing. Facts found by the hearing judge are not reviewable unless clearly erroneous. The law determined by the hearing judge is reviewable de novo. The decision of the panel is final. There is no en banc review. H. If the membership in the Southern District Bar of the lawyer being disciplined was not current at the time of the court order imposing discipline, the order may include that the lawyer shall not reapply for admission except under such conditions as the court may impose.


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Eastern District

E.D. Tex. R. AT-2(d)(2)

Disciplinary Procedures. (A) When it is shown to a judge of this court that an attorney has engaged in conduct which might warrant disciplinary action involving suspension or disbarment, the judge receiving the information shall bring the matter to the attention of the chief judge, who will poll the full court as to whether disciplinary proceedings should be held. If the court determines that further disciplinary proceedings are necessary, the disciplinary matter will be assigned to the chief judge, or a judge designated by the chief judge, who will notify the lawyer of the charges and give the lawyer opportunity to show good cause why he or she should not be suspended or disbarred. Upon the charged lawyer’s response to the order to show cause, and after a hearing before the chief judge, or a judge designated by the chief judge, if requested, or upon expiration of the time prescribed for a response if no response is made, the chief judge, or a judge designate by the chief judge, shall enter an appropriate order. (B) At any hearing before the chief judge, or a judge designated by the chief judge, the charged lawyer shall have the right to counsel and at least fourteen days’ notice of the time of the hearing and charges. Prosecution of the charges may be conducted by an attorney specially appointed by the court. Costs of the prosecutor and any fees allowed by the court shall be paid from the attorney admission fee fund.

Western District

W.D. Tex. R. AT-7(b)

(b) District Disciplinary Committee. --There is constituted a District Disciplinary Committee, which assists the district court and the bankruptcy court in investigating complaints about the qualification, conduct, and performance of members of their bar. (1) Composition. --The committee has 15 members. Those eligible for service on the committee are attorneys licensed to practice in this district and in good standing, and residing within the district. The committee should include civil, criminal, and bankruptcy practitioners. Five members must be residents of the Austin and Waco Divisions, five members must be residents of the San Antonio and Del Rio Divisions, and five members must be residents of the El Paso, Midland-Odessa and Pecos Divisions. The members are appointed by the active judges resident in, or responsible for, those divisions. The chair and vice-chair are designated by the chief judge of the district. (2) Terms. --Membership terms should be staggered so that one third of the members’ terms expire each year. The term is 3 years, unless a shorter period is required to achieve staggered terms. The terms of members and the chair may be renewed one or more times to practice law.


46


W.D. Tex. R. AT-7(f)

(f) Procedure upon a Referral. (1) Notice. --Promptly upon receipt of a referral, the chair of the District Disciplinary Committee must inform the subject attorney in writing of the nature of the referral and the attorney’s obligations under this rule. (2) Answer. --Within 10 days after receiving notice of a referral under this rule, the attorney must respond in writing to the committee chair. The respondent attorney must admit or deny each claim asserted, and state concisely any defense to a claim. (3) Screening. --The chair will assign the referral along with the respondent’s response to a screening subcommittee. The subcommittee consists of one or more members of the full committee designated by the chair who reside in the same region as the referred attorney (e.g., Austin/Waco; San Antonio/Del Rio; West Texas). At least one member of the screening subcommittee must be an attorney who practices in the same area as the referred attorney (e.g., civil, criminal or bankruptcy). The subcommittee will conduct such preliminary inquiry it deems appropriate and may request the respondent to meet with it informally to provide an explanation. After this screening, if the subcommittee determines no further investigation is required and no discipline should be imposed, it will so inform the committee chair. The chair will then inform the chief judge and the respondent of the recommendation. (4) Assignment to a Panel. --If the screening subcommittee determines that the matter may warrant disciplinary action, it will inform the committee chair. The chair will then designate a panel and assign the matter to it. The panel must include three or more members of the full committee who reside in the same region as the respondent (e.g., Austin/Waco; San Antonio/Del Rio; West Texas). At least one member of the panel must be an attorney who practices in the same area as the referred attorney (e.g. civil, criminal or bankruptcy). Members of the initial screening subcommittee may serve as members of the panel. The chair will notify the respondent in writing of this assignment and what matters will be investigated. (5) Investigation. --No earlier than 10 days after notice to the respondent of the assignment, the panel will conduct such investigation it deems appropriate including questioning witnesses and holding a hearing with the respondent present. Full cooperation with any committee investigation is an obligation of any member of the bar of this court. (6) Panel Report and Recommendation. --After investigation the panel will render a report and recommendation as to whether the respondent committed any violation and what disciplinary action, if any, should be imposed. Absent good cause shown by the chair of the District Disciplinary Committee, the court expects that a report and recommendation will be completed within 6 months after the referral. The chair will send the complete report and recommendation to the chief judge and a summary of the report and recommendation to the respondent. (7) Objections to Report and Recommendation. --Within 10 days after receipt of the summary report and recommendation, the respondent may submit objections to it, seek revisions, and suggest alternatives to the recommendation. The panel, after considering the response, may modify, amend, revoke, or adhere to its original recommendation and will so inform the committee chair. The chair will then send a copy of the final report and recommendation to the chief judge and a summary final report and recommendation to the respondent. (i) Referral to Other Disciplinary Authority. --The chief judge may forward a copy of the committee’s records and any court action regarding an attorney to the appropriate disciplinary authority of any bar or court that authorizes the attorney to practice law.


47

Local Rules Governing Discipline Imposed by Presiding Judge


Northern District

N.D. Tex. R. Civ. 83.8(b); N.D. Tex. R. Crim. 57.8(b)

(b) Grounds for Disciplinary Action. A presiding judge, after giving opportunity to show cause to the contrary, may take any appropriate disciplinary action against a member of the bar for: (1) conduct unbecoming a member of the bar; (2) failure to comply with any rule or order of this court; (3) unethical behavior; (4) inability to conduct litigation properly; (5) conviction by any court of a felony or crime involving dishonesty or false statement; or (6) having been publicly or privately disciplined by any court, bar, court agency or committee.

Southern District


Inherent Power of Judges. The existence of these rules shall not limit the power of district judges to exercise their inherent powers over lawyers who practice before them, and the chief judge shall have the right to designate another district judge to serve under these rules in the place of the chief judge.

Eastern District

N/A N/A

Western District

W.D. Tex. R. AT-7(d)

Discipline Imposed by a Judge Presiding. --Notwithstanding any other provision of these rules, any judge, including a bankruptcy judge or a magistrate judge, has inherent authority to discipline an attorney who appears before him or her. However, any judge contemplating disbarring an attorney or preventing an attorney from practicing district-wide will refer the attorney to the District Disciplinary Committee. If a judge believes emergency circumstances exist that require the immediate suspension of an attorney, that judge may request that all active district judges immediately consider the matter. Upon a majority vote of the active district judges, an attorney may immediately be suspended from practicing in the district pending a report and recommendation from the District Disciplinary Committee. If a bankruptcy judge believes emergency circumstances exist that requires the immediate suspension of an attorney, that bankruptcy judge may request that all active district and bankruptcy judges immediately consider the matter. Upon a majority vote of the active district and bankruptcy judges, an attorney may immediately be suspended from practicing in the district pending a report and recommendation from the District Disciplinary Committee.


48

Local Rules Governing Self-reporting by Attorneys


Northern District

N.D. Tex. R. Civ. 83.8(d); N.D. Tex. R. Crim. 57.8(d)

Reporting by Members. Any member of the bar of this court who has: (1) lost or relinquished, temporarily or permanently, the right to practice in any court of record; (2) been disciplined, publicly or privately, by any court, bar, court agency, or committee; or (3) been convicted of a felony or crime involving dishonesty or false statement, shall promptly report such fact in writing to the clerk, supplying full details and copies of all pertinent documents reflecting, or explaining, such action.

Southern District


Disbarment by Consent or Resignation in Other Courts. A. A lawyer who is disbarred or suspended by consent or agreement or who resigns from the bar of another court in the United States to avoid further discipline must advise this court in writing and immediately cease to practice before this court. The lawyer shall furnish a certified copy of the disciplinary order or letter of resignation to the clerk. B. Upon request by the lawyer, the court will follow the due process procedure in these rules to determine under what conditions the lawyer might continue to practice in this court.

Eastern District

N/A N/A

Western District

W.D. Tex. R. AT-7(e)

(e) Self-Reporting by Attorneys. --A member of the bar of this court must promptly report in writing to the clerk, with full details and copies of pertinent documents, if any of the following occur: (1) the attorney is convicted of a felony or a crime involving dishonesty or false statement; (2) the attorney loses or relinquishes, temporarily or permanently, the right to practice in any court of record (other than voluntarily relinquishment, not under any disciplinary order or threat of discipline); or (3) the attorney is disciplined, publicly or privately, by any bar, court, court agency, or court committee.


49

Local Rules Governing Procedures for Readmission


Northern District

N.D. Tex. R. Civ. 83.8(f); N.D. Tex. R. Crim. 57.8(f)

Readmission. An attorney applying for readmission to the bar of this court must submit an application for readmission, together with the following materials: (1) a full disclosure concerning the attorney’s loss or relinquishment of membership in the bar of this court; and (2) all information required by subsection (d) of this rule concerning facts that occurred prior to the date of application for readmission.

Southern District


A. A suspended or disbarred lawyer must apply to this court for reinstatement before resuming practice before this court. A lawyer who has been suspended may apply for reinstatement before or after the end of his term of suspension. The term of suspension includes all conditions and periods of suspension, including probated and inactive suspension. A lawyer who has been disbarred may apply for reinstatement but not before five years from the effective date of the disbarment. B. All petitions for reinstatement shall be filed with the clerk of the court who will promptly refer the petition to the Attorney Admissions Committee for its recommendation on the petition to the chief judge. The chief judge may make the final decision of the court on the petition. C. Petitions for reinstatement shall be accompanied by an advance cost deposit in an amount to be set by the court to cover anticipated costs of the proceeding. D. No petition for reinstatement may be filed within one year following an adverse ruling on a previous petition.

Eastern District

E.D. Tex. R. AT-2(f)

Reinstatement. Any lawyer who is suspended by this court is automatically reinstated to practice at the end of the period of suspension, provided that the bar membership fee required by Local Rule AT-1(e) has been paid. Any lawyer who is disbarred by this court may not apply for reinstatement for at least three years from the effective date of his or her disbarment. Petitions for reinstatement shall be sent to the clerk and assigned to the chief judge for a ruling. Petitions for reinstatement must include a full disclosure concerning the attorney’s loss of bar membership in this court and any subsequent felony convictions or disciplinary actions that may have occurred in other federal or state courts.

Western District

N/A N/A