IT’S ALL BUSINESS: THE ETHICS OF LAWYER …KAREN GREN JOHNSON Jones Day Panel: HON. ALFRED...

IT’S ALL BUSINESS:

THE ETHICS OF LAWYER-JUDGE INTERACTIONS IN THE CONTEXT OF BUSINESS TORTS

Originally Prepared by: HON. CATHARINA HAYNES

Circuit Judge United States Court of Appeals for the Fifth Circuit

Updated by: MICHAEL A. CORRELL

Jones Day

Moderator: KAREN GREN JOHNSON

Jones Day

Panel: HON. ALFRED “AL” H. BENNETT

Judge, 61st Civil District Court

HON. CATHARINA HAYNES Circuit Judge

HON. ROSE GUERRA REYNA

Judge, 206th District Court

HON. JEFFREY “JEFF” L. ROSE Justice, 3rd Court of Appeals

State Bar of Texas

3RD ANNUAL BUSINESS TORTS INSTITUTE 2011 October 13 – 14, 2011

Houston

CHAPTER 19

JUDGE AL BENNETTHarris County Civil Courthouse 61st Civil Court 201 Caroline, 9th Floor Houston, Texas 77002 (713) 368-6070 [email protected]

EDUCATION University of Texas School of Law, Austin, Texas J.D. May 1991 University of Houston, Houston, Texas B.S. Political Science, May 1988 A.A. White Dispute Resolution Center, University of Houston, Houston, Texas 40 Hour Basic Mediation Training, August 2007 LEGAL EXPERIENCE 61st Civil District Court - Harris County, Texas Presiding Judge, January 2009 - present Thurgood Marshall School of Law - Texas Southern University Adjunct Professor of Law - Trial Advocacy, Spring 2003 - present Law Offices of Alfred H. Bennett, Houston, Texas Solo Practitioner, March 1998 - December 2008 Solar & Fernandes, L.L.P., Houston, Texas Senior Associate, October 1994 - February 1998 Fulbright & Jaworski L.L.P., Houston, Texas Associate, September 1991 - September 1994 BAR ADMISSIONS State Bar of Texas, 1991 United States District Court, Southern, Eastern & Northern Districts of Texas BAR ASSOCIATIONS National Bar Association Constitution & Bylaws Committee, Member, July 2000 – 2004 Gertrude E. Rush Mid-Year Planning Committee, Vice-Chair, 1997 Member, 1988 - present State Bar of Texas Texas Access to Justice Commission, Commissioner, June 2010 - present College of the State Bar, December 2009 - present

Committee on Lawyer Referral & Information Services, Chair, July 2004 - July 2006 Vice-Chair, May 2002 – July 2004 Member, July 1998 – July 2006

Grievance Committee, District 4A (Houston), Member, June 2002—June 2004 Texas Minority Counsel Program Houston Host Committee, Member, Fall 1999 & Fall 2003

President-Elect’s Advisory Committee on Strategic Planning, Member, 1995 – 1996

Texas Young Lawyers’ Association Dropout Prevention & Literacy Committee, Past Member Voters Rights & Registration Committee, Past Member Houston Lawyers Association Immediate Past President, 1998 – 1999 President, 1997 – 1998 Chair, Board of Directors, 1997 – 1998 President-Elect, 1996 – 1997 Nominations Committee, Member 2000 – 2001, Chair 2001 – 2002 HLA Annual Scholarship Golf Classic Committee, Vice-Chair 1999 – 2000 Member, 1992 – present Houston Bar Association, Member, 1991 – present Member, Harris County Bench Bar Pro Bono Awards Committee, March 2009 - present Guest Speaker, Importance of Jury Service, February 2011 Guest Speaker, Litigation Section Luncheon Series, September 2009 Volunteer, Law Day Guest Speaker, H.I.S.D., May 2009 Volunteer, Lawyers in Public Schools, H.I.S.D., Fall 1999 Volunteer, LegalLines Houston Young Lawyers Association, Member, 1991 – 2001 W. J. Durham Legal Society, Past Member CLE/SPEECHES/PRESENTATIONS College of the State Bar Litigation Strategies Course Judicial Panel Member, March 2011 Texas Association of Civil Trial & Appellate Specialists CLE Panel Member, February 2011 Duff & Phelps CLE Seminar Judicial Panel Member, September 2010 Texas Insurance Law Symposium Judicial Panel Member, January 2010 HBA Litigation Section Series Luncheon Guest Speaker, September 2009

JUDGE CATHARINA HAYNES

United States Circuit Judge 1100 Commerce Street, Rm. 1452

Dallas, TX 75242

Judge Catharina Haynes was sworn in as a Circuit Judge of the United States Court of Appeals for the Fifth Circuit on April 22, 2008, having been nominated by President George W. Bush on July 17, 2007. Prior to taking the federal bench, she served from January of 1999 through December of 2006 as a state district judge in Texas. During 2005, she served as the Presiding Judge of the Dallas Civil District Courts. She received a B.S. in Psychology with highest honors from the Florida Institute of Technology in 1983. In 1986, she received a J.D. with distinction from the Emory University School of Law, where she was a Notes and Comments Editor of the Emory Law Journal and a member of Order of the Coif. She was honored as an Outstanding Woman Law Graduate by the National Association of Women Lawyers. Judge Haynes is board certified in Consumer and Commercial Law by the Texas Board of Legal Specialization. In addition to her judicial service, Judge Haynes spent 13 years in private practice, including more than five years as a partner and six years as an associate in the trial section of the Dallas office of Baker Botts, L.L.P. From 2003 through 2006, Judge Haynes served as Chair of the Texas Court Reporters Certification Board which is responsible for certifying, recertifying, and disciplining court reporters in Texas. She has served on the Council of the State Bar of Texas Insurance Section since 2002. Judge Haynes has been actively involved in the legal community for many years. In 1996, she was awarded the Jo Anna Moreland Outstanding Committee Chair Award for her work as co-chair of the Dallas Bar Judiciary Committee; she received that award again in 2002, for her work as co-chair of the Dallas Bar Bench/Bar Conference Committee. She was also the recipient of the 2003 Outstanding Board Member Award and the 2004 Louise B. Raggio Award from the Dallas Women Lawyers Association. She received the 2005 Award of Excellence from the DAYL Foundation and the 2006 Outstanding Achievement Award from the Florida Tech Alumni Association. During 2001, she served as an At-Large Director of the Dallas Bar Association. She is a Fellow in the Dallas Bar Foundation, a Founding Fellow of the DAYL Foundation, and a Life Fellow in the American Bar Foundation. From 2003-11, Judge Haynes volunteered as a teacher in a program to teach pre-GED classes to adults for whom English is a second language at the Vickery Meadow Learning Center; she also served on the board of that Center for six years. While on the state court, Judge Haynes volunteered as a judge at the Dallas Volunteer Attorney Program’s Pro Bono Clinics. As a lawyer, she chaired the Vickery Meadow Subcommittee of the Dallas Bar Pro Bono Committee that founded a pro bono legal clinic in the Vickery Meadow area of Dallas. Judge Haynes has been married to her husband, Craig, for twenty-three years.

Karen Gren JohnsonPartner

[email protected]

Dallas

+1.214.969.2929 (T)+1.214.969.5100 (F)

As a former Presiding Judge of the Dallas County Civil District Judges, Karen Gren

Johnson has extensive trial experience as an advocate and as a judge. Karen has

represented international product manufacturers in multidistrict litigation and

served as lead lawyer in multimillion dollar business disputes. Karen joined

Jones Day after eight years of judicial service as a state district judge where she

presided over thousands of civil cases, including more than 100 cases tried to jury

verdict. During Karen's time on the bench, the Supreme Court of Texas appointed

her as a multidistrict litigation judge.

Before taking the bench, Karen was in private practice for 18 years, focusing on

complex tort, product liability, business, and other civil litigation in state and federal

courts. She handled first-chair responsibilities in individual cases and coordinated

with in-house counsel on litigation management at the local through national

levels. Her first-chair case responsibilities included all aspects of case

development, from investigation through trial. Karen has served on multiple bar

seminar planning committees and frequently speaks on advanced litigation topics,

including voir dire, discovery, expert witnesses, judge and jury persuasion, trial

tactics, and ethics.

Karen has served on many nonprofit boards, including Camp John Marc, Dallas

Women's Foundation, Victims Outreach, and Literacy Instruction for Texas. She

was co-chair of Attorneys Serving the Community, and she co-chaired the National

Asian Pacific American Bar Association's Annual Convention in 2004. She has

served on the executive board of the Cornell Law Association and on the board of

directors of the Association of Rice Alumni.

AREAS OF FOCUSProduct Liability & Tort LitigationTrial PracticeClass Action & Multidistrict Product Liability LitigationConsumer Goods Product Liability Litigation

HONORS & DISTINCTIONSDallas Asian American Bar Association Lifetime Achievement Award

Dallas Women Lawyers Association Louise Raggio Award for "significant contributions toward advancement of women in the legal profession"

National Asian Pacific American Bar Association Trailblazer Award

State Bar of Texas Justice Chew Award recognizing "exemplary professionalism and accomplishments"

D Magazine's "Best Lawyers 2011" and "Best Women Lawyers 2010"

Texas Super Lawyers (2011)

EDUCATIONCornell University (J.D. 1982); Rice University (B.A. in Legal Studies and Political Science 1979)

BAR ADMISSIONSTexas

GOVERNMENT SERVICEJudge, 95th Civil District Court, Dallas County, Texas (2001-2008), Presiding Judge (2007)

JUDGE ROSE GUERRA REYNA

206th District Court Judge

Hidalgo County Courthouse 100 N. Closner, 2nd Floor

Edinburg, Texas 78539 (956) 318-2265

[email protected] EDUCATION The University Of Texas School of Law-Austin, Texas (J.D. received Dec. 1983) Pan American University-Edinburg, Texas (B.A. received August 1981) (Magna Cum Laude) McAllen High School-McAllen, Texas (1978) LEGAL EXPERIENCE 206th District Court Judge (Hidalgo County-elected January 1, 1999, re-elected without opposition

2003 and 2007, up for re-election March 2, 2010.) This is a court of general jurisdiction hearing civil cases, felony criminal cases, and juvenile cases. I have served in numerous administrative advisory capacities for jury plan, Domestic Relations Office, and Able Term transition coordination.

Skaggs, Reyna & Garza, L.L.P. (and predecessor firms) McAllen, Texas Partner (1987-1998) Associate (1985-1986). This was a general litigation firm representing plaintiffs and defendants in a variety of jurisdictions covering various subject matters. This practice included representation of plaintiffs and defendants in the trial court (State and Federal), Court of Appeals and the Texas Supreme Court.

Law Office of Ramon Garcia - Edinburg, Texas (Associate-1984-1985) LICENSES AND CERTIFICATIONS State Bar of Texas (May 1984) United States of America-Southern District of Texas (November 1984) United States of America-Fifth Circuit Court of Appeals (December 1992) United States Supreme Court (May 1994) Certified to be appointed Attorney Ad Litem in Texas Courts AV Rating by Martindale-Hubbell PROFESSIONAL ASSOCIATIONS AND MEMBERSHIPS Hidalgo County Bar Association (Past Director and Past President) National Association of Women Judges Texas Association of District Judges American Judges Association Hidalgo County Bar Association Women’s Section, Criminal Section, and Civil Section (2008-present)

Lower Rio Grande Valley Development Council-Criminal Justice Advisory Committee (January 10, 2000-Present)

College of the State Bar of Texas (2004-Present) (Board of Directors July 2009-present) Texas College for Judicial Studies (2004-Present) Criminal Justice Council of the State Bar of Texas (2004-Present) (Treasurer 2007-2008) (Vice-chair 2009-2010) Litigation Council of the State Bar of Texas (2006-Present); State Bar of Texas Pattern Jury Charge Committee (Business, Consumer & Employment) (August

2005-2006) State Bar of Texas Pattern Jury Charge Committee (Malpractice, Premises & Product Liability) (2007-

2009) Judicial Advisory Council (appointed by Texas Supreme Court Chief Justice Wallace Jefferson 9/2007- 09/2011) Court Administration Task Force on Court Administration (appointed by State Bar President Gib

Walton August 2007) Texas Supreme Court Jury Task Force (appointed by Texas Supreme Court Chief Justice Wallace

Jefferson July 17, 2006) Judicial Overseer of the Hidalgo County Community Supervision and Corrections Department (2003-

2007) Texas Women Lawyers (Board of Directors) (2004-Present) State Bar Association Restoring Public Trust Committee (November 10, 1999) State Bar Local Media Response-Committee Member Texas Young Lawyer Association Board of Directors Co-Chair Hidalgo County Juvenile Comprehensive Strategy (2001) State Bar Grievance Committee Member VOLUNTEER PARTICIPATION AND HONORS Recipient of the Texas Center for Legal Ethics and Hidalgo County Bar Association - 2010 Texas

Center Professionalism Award Invited and accepted into the STAR program Rio Grande Valley Habitat for Humanity Inc. Advisory Council Member Expert Panel Member for the “You Drink and Drive, You Lose” Campaign Sponsored by the National

Highway Traffic and Safety Administrative and National Latino Council of Alcohol and Tobacco Prevention

Speaker, course director and planning team member at numerous continuing legal education seminars for the state and local bar associations

Speaker at local schools and organizations on various topics including but not limited to Career Days, Drug & Alcohol Prevention, Stay in School, Graduations

Commencement speaker for University of Texas- Pan American (UTPAU) and South Texas College (STC)

Distinguished Young Leadership Award Notable Woman of Texas Outstanding Women of America Member of the Who’s Who in American Law-Edition Eleven (1999) Notable Valley Hispanic-UTPAU (2001) Outstanding Alumni Family-UTPAU (November 18, 1999) Hidalgo County Legal Alliance Honoree (2000) Texas Hispanic Women=s Network Association Honoree (October 20, 2001) AVANCE Mother of the Year (2002) Holy Spirit Catholic Church-former lecturer, Eucharistic minister, nursing home Eucharistic minister

JUSTICE JEFFREY ROSE

Third Court of Appeals

209 W. 14th St., Rm. 101 Austin, TX 78701

(512) 463-1733 [email protected]

Jeff Rose brings a wealth of experience and accomplishment to the Third Court of Appeals. Jeff's public service has included work as a State District Judge for Travis County, Chief of General Litigation for the State of Texas, and Deputy First Assistant Attorney General under Texas Attorney General Greg Abbott. In private practice, Jeff represented a broad cross section of clients in litigation matters and earned partnership in a large Texas law firm. Jeff's service to the community, the public, his clients, and his fellow lawyers gives him the foundation to be a strong voice on the Court. Jeff has earned Board Certification in Civil Trial Law and has been recognized four times as a "Texas Super Lawyer." He has been active in the Austin Bar Association as a Director and through the community service and continuing legal education committees. Jeff has also given back to the Austin community and in particular to children in need, through his leadership roles in Big Brothers/Big Sisters, The Rise School of Austin, and The Sportsman's Club of Austin. PRIVATE PRACTICE Jeff graduated from Vanderbilt Law School and began his legal career with the law firm of Strasburger & Price. He developed a practice handling civil litigation for a wide range of private clients and quickly gained a reputation as someone willing to step in when the going gets tough. The partners of the firm recognized Jeff's hard work, naming him "Litigation Associate of the Year" in a firm with over 100 associates, and then later making him one of the youngest lawyers ever to be named a partner in the firm. PUBLIC SERVICE In the summer of 2003, Attorney General Greg Abbott convinced Jeff to leave private practice to serve the State of Texas as Chief of the Civil General Litigation Division in the Office of Attorney General. In this role, Jeff was one of the State's lead litigators. He provided legal counsel to countless state agencies, state officials, and state employees in a broad variety of civil litigation, ranging from high profile constitutional issues, such as school finance and public health, to civil rights matters and employment claims. Jeff served as lead counsel in many of the State's highest profile lawsuits, arguing cases in the Texas trial and appellate courts as well as in the United States Fifth Circuit Court of Appeals. In the Summer of 2006, Attorney General Abbott promoted Jeff to a key post in the Attorney General's Office, naming him Deputy First Assistant Attorney General. At the time, General Abbott said "Jeff Rose has been a trusted legal advisor, not just for me and my office, but to outside clients, commissions, agencies and boards across the state." Abbott continued, "Jeff has the civil litigation background and strong leadership that will serve the people of Texas well as he oversees the complex legal and administrative issues of this office." As a key executive in this agency of over 4,000 employees, Jeff helped leave a legacy in the Attorney General's Office in which the State of Texas and its citizens receive the finest legal representation.

Jeff served as a State District Judge for Travis County from 2009-2010, during which time he developed a reputation as hard working, qualified, and fair. During his time on the Court, Jeff presided over a wide variety of jury and non-jury lawsuits, bringing resolution to thousands of matters for the citizens of Travis County. CERTIFICATIONS, AWARDS & ACTIVITIES

Board Certified, Civil Trial law “Texas Super Lawyer” in Business Litigation (2004, 2005) and Governmental Litigation (2008, 2009), Texas

Monthly Magazine Finalist, Austin Under 40, Government and Public Relations – 2009 (award for professional achievement and

community service) Director, Austin Bar Association – Elected 2007, 2009. Former Chair, CLE Committee Co-Founder, Former Director, and Current Trustee – The Rise School of Austin, a non-profit preschool for

children with Down Syndrome and other special needs which now serves over 40 Austin children – www.riseschool.org/austin/

Organizer, Mack Brown/James Street Golf Shootout Co-Founder of the Sportsman's Club of Austin, a group that works with Mack Brown to raise funds for the

Rise School; netted over $320,000 for Rise in first two years of existence Leadership Austin - Graduate, Class of 2006 Big Brothers/Big Sisters of Central Texas – Board of Directors, Executive Committee (1998-2003),

Scholarship Chair

It’s All Business: The Ethics Of Lawyer-Judge Interactions In The Context Of Business Torts Chapter 19

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TABLE OF CONTENTS

I. JUDGE’S DUTY TO UPHOLD HIGH STANDARDS AND LAWYER’S DUTY NOT TO LEAD JUDGES ASTRAY .............................................................................................................................................. 1 II. JUDGE’S DUTY TO MAINTAIN THE DIGNITY AND INTEGRITY OF THE COURT AND LAWYER’S

DUTY TO AVOID IMPROPER INFLUENCE OR APPEARANCE OF IMPROPER INFLUENCE ............... 1 III. THE ELECTION OF JUDGES ............................................................................................................................ 9

IV. RECUSAL RULES AND STATUTES REGARDING LAWYER/JUDGE RELATIONSHIPS ...................... 11

V. THE PROHIBITION ON EX PARTE COMMUNICATIONS .......................................................................... 19

VI. THE DUTY TO AVOID UNDUE DELAY ....................................................................................................... 24

VII. LAWYER’S DUTY TO PLAY FAIR AND BE CANDID WITH THE COURT AND JUDGE’S DUTY TO REMAIN ABOVE THE FRAY ................................................................................................................... 26 VIII. LAWYER’S DUTY OF PUBLIC SERVICE ..................................................................................................... 30

IX. CONCLUSION .................................................................................................................................................. 30

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IT’S ALL BUSINESS: THE ETHICS OF LAWYER-JUDGE INTERACTIONS IN THE CONTEXT OF BUSINESS TORTS1

“Lawyers occupy a singularly lofty position in the political and judicial fabric of the

United States. And with good reason. This is, after all, a nation of laws.” Contico International, Inc. v. Alvarez, 910 S.W.2d 29, 33 (Tex. App.—El Paso 1995), mandamus granted on other grounds sub nom. Mendoza v. Eighth Court of Appeals, 917 S.W.2d 787 (Tex. 1996). “An honest and ethical lawyer has long been part of the foundation for the historically elevated and well-deserved role lawyers have played in our culture. . . . The lawyer must be steadfastly committed both to the client and, more importantly, to the law itself.” Id.

“[T]he power for good of that ideal and undying personality, the Supreme Court of the United States. . . . So noble in conception and yet so simple in execution; so ordinary in its incidents and yet so majestic as the servant of the whole people; so weak and yet so strong, because founded upon the affection of all people and depending for its existence upon their continued support.” 222 U.S. xxv-xxvi (1912).2 “In a civilized society, members of the judiciary are significant public figures . . . [who] serve as the collective guidon of the banner representing fairness and impartiality in our state. It is for that reason, plus others, that the judiciary must nurture and maintain respect for their decisions, as well as the judiciary of the State of Texas as a whole.” In re Barr, 13 S.W.3d 525, 532 (Tex. Rev. Trib. 1998, no appeal). “[T]he ultimate standard for judicial conduct . . . must be more than effortless obedience to the law, but rather, must be conduct which constantly reaffirms one’s fitness for the high responsibilities of judicial office and which continuously maintains . . . the belief that an independent judiciary exists to protect the citizen from both government overreaching and individual self-help.” In re Chacon, 138 S.W.3d 86, 90 (Tex. Rev. Trib. 2004).

As these opinions demonstrate, our system of justice depends, in large part, on the integrity of the judges and lawyers who participate in the system. Under the Texas Disciplinary Rules of Professional Conduct, lawyers have certain duties to the court. Under the Texas Code of Judicial Conduct and the Code of Conduct for United States Judges, judges have certain obligations to the court process. Where the two meet is the subject of this paper. Where appropriate, we have included ethics opinions governing lawyers (“Professional Ethics Opinions”), Texas state judges (“Texas Judicial Ethics Opinions”), and federal judges (“Federal Judicial Ethics Opinions”).

1 Nothing herein should be construed to suggest how Judge Haynes, Judge Bennett, Judge Reyna, Justice Rose, the United States Court of Appeals for the Fifth Circuit, the 61st Civil District Court, the 206th District Court, the 3rd Court of Appeals, or any other judge or court would rule upon any question specifically presented to that judge or court. Judge Haynes first began speaking on this topic in 1999, and she has presented or participated in presenting various iterations of this paper to various bar association groups over the last twelve years in conjunction with other judges and lawyers who have also contributed comments to this paper. Prior updates have been completed with the assistance of other lawyers and judges. Michael Correll of Jones Day and Sidney Smith, a third-year law student attending the University of Texas, assisted in updating this paper for this presentation. None of the views contained herein should be attributed to Jones Day or its clients. 2 Chief Justice Edward Douglass White, Proceedings on the death of Mr. Justice Harlan.


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I. Judge’s Duty to Uphold High Standards and Lawyer’s Duty Not to Lead Judges Astray.

Lawyers readily understand that judges have a duty to comply with the applicable code of judicial conduct governing their particular jurisdictions. But those same lawyers often do not recognize that they have a duty not to lead judges into temptation. In order to avoid inviting a violation of the judicial ethics canons, lawyers should be familiar with the codes of judicial conduct for all of the courts in which they practice and act in a way that avoids placing a judge in an inappropriate situation. Importantly, a lawyer who knowingly assists a judge in violating the judicial canons or other applicable law is subject to discipline just as he would be for his own misconduct. In fact, lawyers and judges both maintain an affirmative duty to report unethical conduct. See also Tex. Disciplinary Rules Prof’l Conduct R. 8.03 (lawyer’s duties regarding reporting professional misconduct of lawyers and judges); Tex. Code Jud. Conduct, Canon 3(D) (Texas state judge’s duties regarding reporting professional misconduct of lawyers and other judges); Code of Conduct for United States Judges, Canon 3B(3) (similar rule for federal judges).

A. Tex. Code Jud. Conduct, Canon 1: “Upholding the Integrity & Independence of the Judiciary.”

A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved.

B. Tex. Disciplinary Rules Prof’l Conduct R. 8.04: “Misconduct.”

(a) A lawyer shall not:

. . .

(6) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

II. Judge’s Duty to Maintain the Dignity and Integrity of the Court and Lawyer’s Duty to Avoid Improper Influence or Appearance of Improper Influence.

Under both the Texas and federal ethics rules, judges have a duty to maintain a high level of integrity and judicial independence and lawyers have a duty to avoid improperly influencing judges. Given this rigorous standard, lawyers and judges must be mindful that their interactions might give rise to conflicts of interest. For instance, judges generally should not conduct extrajudicial business or financial dealings involving lawyers who may have dealings with their court, and lawyers should not enter into these transactions with judges.

While lawyers are permitted to have personal friendships with judges, both lawyers and judges must be mindful of the potential conflict and appearance issues such friendships create. Actions intended to place the lawyer at a special advantage with the judge are prohibited. Further, lawyers should generally refrain from giving gifts to judges. Where gifts are permitted, both the judge and the lawyer must ensure that the gift does not leave the impression that the lawyer has an ability to improperly influence the judge. These prohibitions also extend to other


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judicial officers and court staff.

Lawyers who practice in small communities or who frequently appear in front of the same judges must be especially mindful not to give the impression that they have the ability to improperly influence a judge.

A. Texas Rules.

1. Tex. Disciplinary Rules Prof’l Conduct R. 8.04: “Misconduct.”

(a) A lawyer shall not:

. . .

(5) state or imply an ability to influence improperly a government agency or official;

2. Tex. Code Jud. Conduct, Canon 4: “Conducting the Judge’s Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations.”

A. Extra-Judicial Activities in General. A judge shall conduct all of the judge’s extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; or

(2) interfere with the proper performance of judicial duties.

. . .

D. Financial Activities. (1) A judge shall refrain from financial and business dealings that . . .

involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves. This limitation does not prohibit either a judge or candidate from soliciting funds for appropriate campaign or officeholder expenses as permitted by state law.

. . .

(4) Neither a judge nor a family member residing in the judge’s

household shall accept a gift, bequest, favor, or loan from anyone except as follows:

(a) a judge may accept a gift incident to a public testimonial to the

judge; . . .


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(b) a judge or a family member residing in the judge’s household

may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a gift from a friend for a special occasion such as a wedding, engagement, anniversary, or birthday, if the gift is fairly commensurate with the occasion and the relationship;

. . .

(d) a gift, award or benefit incident to the business, profession or

other separate activity of a spouse or other family member residing in the judge’s household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties.

3. Tex. Disciplinary Rules Prof’l Conduct R. 8.02: “Judicial and Legal

Officials.”

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge . . . .

4. Tex. Code Jud. Conduct, Canon 1: “Upholding the Integrity and Independence of the Judiciary.”

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary are preserved. The provisions of this Code are to be construed and applied to further that objective.

5. Tex. Code Jud. Conduct, Canon 2: “Avoiding Impropriety and the Appearance of Impropriety in All of the Judge’s Activities.”

A. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.


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C. A judge shall not knowingly hold membership in any organization that practices discrimination prohibited by law.

(a) Texas Judicial Ethics Opinions 262 (2000) and 276 (2001): “Attending Private Law Firm Functions.”

In Opinions 262 and 276, the Texas Committee on Judicial Ethics advised that a judge generally should not attend or speak at a private law firm function that is open only to the firm and its clients. Judges may speak at bar association or law school events.

(b) Texas Judicial Ethics Opinions 215/216(1997): “Addressing

Gifts and Hospitality to Judge.”

In Opinion 215, the Texas Committee on Judicial Ethics addressed whether a judge who has suffered a catastrophic loss could accept gifts of money from individuals who work in the court house or practice in the judge’s court. The Committee found that Canon 4D(4)(c) would not allow gifts from anyone whose interests have come or are likely to come before the judge. However, the judge could accept gifts from friends and acquaintances who happen to work at the court house and who have no interest that has or might come before the court. Likewise, in Opinion 216, the Committee determined that a judge could not stay in the lake house of an attorney who practiced in front of the judge unless the house was regularly rented out and the judge paid the market rental rate.

(c) Texas Judicial Ethics Opinion 194 (1996): “Acceptance of Holiday Gifts by Judge and Staff.”

In Opinion 194, the Texas Committee on Judicial Ethics advised that it is a violation of Canon 4D(4) for a judge or judicial staff to accept holiday or seasonal gifts from a lawyer who is not a friend of the judge or from a law firm. Where there is a preexisting relationship, gifts may be permitted but the gifts must be commensurate with the occasion, and the judge should be mindful to avoid the impression that the giver is in a position to improperly influence the judge. In addition, the Committee noted that judges may attend law firm parties so long as that party is open to people other than judges and court personnel. Again, the judge must be mindful to avoid the impression of any improper influence.

(d) Texas Judicial Ethics Opinion 139 (1991): “Judge as an Expert Witness.”

In Opinion 139, the Texas Committee on Judicial Ethics addressed whether a judge may testify as an expert witness in a lawsuit in which the defendant-lawyer is accused of malpractice in a previous trial at which the judge presided. The Committee advised that the judge may testify only if the judge is subpoenaed and required to testify. A judge should not be permitted to cooperate with a party because such cooperation would create the appearance of using the prestige of judicial office for the benefit of the party and would create the appearance of compromising the judge’s independence.


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(e) Texas Judicial Ethics Opinion 140 (1991): “Acceptance by Court Staff of Favors.”

In Opinion 140, the Texas Committee on Judicial Ethics advised that it is improper for a district judge to allow a court administrator to participate in a weekend trip that is sponsored, organized, and paid for by a lawyer who practices before the judge. If the court administrator paid all of the expenses involved, the judge may allow participation if such participation does not reflect on the independence or impartiality of the court or its staff or otherwise create the impression of impropriety.

B. Federal Rules.

1. Code of Conduct for United States Judges, Canon 1: “A Judge Should Uphold the Integrity and Independence of the Judiciary.”

An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

2. Code of Conduct for United States Judges, Canon 2: “A Judge Should

Avoid Impropriety and the Appearance of Impropriety in all Activities.”

A. Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. Outside Influence. A judge should not allow family, social, political,

financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.

C. Nondiscriminatory Membership. A judge should not hold membership in any

organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.

3. Code of Conduct for United States Judges, Canon 4: “A Judge May

Engage In Extrajudicial Activities That Are Consistent With the Obligations of Judicial Office.”

A judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture, and teach on both law-


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related and nonlegal subjects. However, a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below.

A. Law-related Activities.

(1) Speaking, Writing, and Teaching. A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.

(2) Consultation. A judge may consult with or appear at a public hearing

before an executive or legislative body or official:

(a) on matters concerning the law, the legal system, or the administration of justice; (b) to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in the area; or (c) when the judge is acting pro se in a matter involving the judge or the judge’s interest.

(3) Organizations. A judge may participate in and serve as a member, officer, director, trustee, or nonlegal advisor of a nonprofit organization devoted to the law, the legal system, or the administration of justice and may assist such an organization in the management and investment of funds. A judge may make recommendations to public and private fund-granting agencies about projects and programs concerning the law, the legal system, and the administration of justice;

…

B. Civic and Charitable Activities. A judge may participate in and serve as an officer, director, trustee, or nonlegal advisor of a nonprofit civic, charitable, educational, religious, or social organization, subject to the following limitations:

(1) A judge should not serve if it is likely that the organization will either

be engaged in proceedings that would ordinarily come before the judge or be regularly engaged in adversary proceedings in any court;

(2) A judge should not give investment advice to such an organization but

may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions.


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C. Fund Raising. A judge may assist nonprofit law-related, civic, charitable, educational, religious, or social organizations in planning fund-raising activities and may be listed as an officer, director, or trustee. A judge may solicit funds for such an organization from judges over whom the judge does not exercise supervisory or appellate authority and from members of the judge’s family. Otherwise, a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose. A judge should not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or is essentially a fund-raising mechanism.

D. Financial Activities.

(1) A judge may hold and manage investments, including real estate, and engage in other remunerative activity, but should refrain from financial and business dealings that exploit the judicial position or involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves.

(2) A judge may serve as an officer, director, active partner, manager,

advisor, or employee of a business only if the business is closely held and controlled by members of the judge’s family. For this purpose, “members of the judge’s family” means persons related to the judge or the judge’s spouse within the third degree of relationship as defined in Canon 3C(3)(a), any other relative with whom the judge or the judge’s spouse maintains a close familial relationship, and the spouse of any of the foregoing.

(3) As soon as the judge can do so without serious financial detriment, the

judge should divest investments and other financial interests that might require frequent disqualification.

(4) A judge should comply with the restrictions on acceptance of gifts and

the prohibition on solicitation of gifts set forth in the Judicial Conference Gift Regulations. A judge should endeavor to prevent any member of the judge’s family residing in the household from soliciting or accepting a gift except to the extent that a judge would be permitted to do so by the Judicial Conference Gift Regulations. A “member of the judge’s family” means any relative of a judge by blood, adoption, or marriage, or any person treated by a judge as a member of the judge’s family.

(5) A judge should not disclose or use nonpublic information acquired in

a judicial capacity for any purpose unrelated to the judge’s official duties.


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(a) Federal Judicial Ethics Opinion 106 (2011).

In Opinion 106, the Federal Committee on Codes of Conduct advised that ownership of shares in a mutual fund does not constitute ownership of shares of stock owned by that mutual fund for recusal and disqualification purposes.

(b) Federal Judicial Ethics Opinions 87 (2010), 105 (2010), and 108 (2009).

In Opinions 87, 105, and 108, the Federal Committee on Codes of Conduct advised that a judge should not speak at a private seminar of a law firm, but may speak to bar associations, law schools and at public law-related seminars, with certain limitations. The judge should be careful not to exploit his or her judicial position or allow others to exploit it. A judge may speak at a government-sponsored training for government lawyers under certain limitations.

III. The Election of Judges.

A. Political Activity and Free Speech.

It is beyond the scope of this paper to discuss political activity by judges in detail. In the federal courts, judges are generally precluded from engaging in any political activity. Code of Conduct for United States Judges, Canon 5 (entitled “A Judge Should Refrain from Political Activity”). Texas state judges, however, may engage in political activity under certain conditions. See Tex. Code Jud. Conduct, Canon 5. The extent to which Texas state judges may express their views on controversial issues is now a more complicated question following the United States Supreme Court’s decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002). Before that decision (and the corresponding changes to Texas Code of Judicial Conduct, Canon 5), judges were very limited in their ability to express their opinions in campaign speeches. The White decision abolished the absolute prohibition on such speech, leaving open many questions about the parameters of judicial political speech. Id. at 788. Two recent decisions further address a judge’s right to express himself. Jenevein v. Willing, 493 F.3d 551 (5th Cir. 2007) (reversing in part a censure order by the Texas Commission of Judicial Conduct against an elected judge who made a statement to the press regarding a pending case); In re Hecht, 213 S.W.3d 547 (Tex. Spec. Ct. Rev. 2006) (holding that Canon 2B, which prohibits judges from “lending the prestige of judicial office to advance private interests,” was unconstitutional as applied to a Texas Supreme Court justice who spoke to the media in favor of a nominee for the United States Supreme Court). The Texas Code of Judicial Conduct cautions that, while judges may express certain opinions while campaigning, "[a] statement made during a campaign for judicial office, whether or not prohibits by [the Canons], may cause a judge's impartiality to be reasonably questioned in the context of a particular case and may result in recusal." Tex. Code Jud. Conduct, Canon 5 comment.

Similarly, lawyers must also take care in their politically motivated statements regarding judicial officers and judicial elections. Lawyers may express their views about judges and judicial candidates, but they must not misrepresent the qualifications of those individuals. With respect to contributions, Professional Ethics Opinion 328 (1966) states that a lawyer’s decision to


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contribute to a judicial campaign is appropriate “so long as there is no improper motivation. . . . [Financial] support could be improperly motivated for the purpose of currying favor.”

1. Caperton v. A.T. Massey Coal Co., 129 S.Ct. 2252 (2009).

In Caperton, the chief executive officer of a corporation appeared before a West Virginia State Supreme Court of Appeals judge after contributing $3 million to the judge’s election campaign. Id. at 2257–58. Plaintiffs moved to recuse the judge under the Due Process Clause and the West Virginia Code of Judicial Conduct based on the conflict caused by the CEO’s campaign involvement. Id. at 2257. The judge denied the motion, indicating that he found nothing showing bias for or against any litigant. Id. at 2258. The court of appeals then reversed a $50 million verdict against the CEO’s corporation. Id. During the rehearing process, the judge refused to recuse himself on two more occasions, and the court once again reversed the jury verdict. Id. at 2254.

The United States Supreme Court determined that the judge should have recused himself as matter of due process, where the $3 million contribution eclipsed the total amount spent by all of the judge’s other supporters and dramatically exceeded the amount spent by the judge’s campaign committee. Id. at 2264. “Such significant and disproportionate influence of the CEO in electing the appellate judge, coupled with the chronological relationship between election and pending case, offered possible temptation to the average judge to lead him not to hold the balance nice, clear and true.” Id. at 2264–65.

2. Citizens United v. Federal Electoral Comm’n, 130 S.Ct. 876 (2010).

In Citizens United, a nonprofit corporation brought an action against the Federal Election Commission (FEC) for declaratory and injunctive relief asserting that it feared it could be subject to civil and criminal penalties if it made a film regarding Hillary Clinton within 30 days of the presidential primaries. Id. at 887. The United States Supreme Court held that the federal statute barring independent corporate expenditures for electioneering communications violated the First Amendment and overruled McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003). Id. at 917.

Citizens United, together with Caperton discussed above, raises the question of the extent to which corporations and similar entities can now become involved in judicial campaigns, and whether such involvement could lead to the recusal of judges should corporations have cases pending before such judges.

3. Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010).

In Ellis, the defendants challenged their indictment for money laundering and accepting political contributions in excess of contribution limits on the grounds that the holding of Citizens United indirectly marked “a philosophical shift in the [Supreme] Court’s treatment of restrictions on corporate free speech.” Id. at 85 (internal quotation marks omitted). The Court rejected the contention that Citizens United rendered the limit on direct corporate campaign contributions unconstitutional and held that Citizens United did not affect the laws limiting direct corporate campaign contributions to candidates. Id. at 85–86.


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IV. Recusal Rules and Statutes regarding Lawyer/Judge Relationships.

Both federal judges and Texas state judges must recuse if the judge’s impartiality might reasonably be questioned, and lawyers have several obligations stemming from this mandatory duty to recuse. First, lawyers should be aware that their own relationships and interactions with judges may lead to a conflict of interest that might require that judge’s recusal in future litigation. Second, it is the lawyers’ responsibility in many jurisdictions to provide judges with a certificate of interested parties so that the judge may determine whether recusal is required. Third, lawyers must be aware of the recusal rules in order to advise their clients.

The most common reasons a business lawyer may need to seek recusal of a judge are situations in which the judge has a personal bias or prejudice for or against a party; the judge or a close relative of the judge has a financial or other interest that could be substantially affected by the outcome of the proceedings; or a close relative of the judge is a lawyer, a party, or a material witness in the proceeding. Lawyers who have close relationships or financial dealings with a judge should be aware that recusal may be required if the lawyer ever has to appear before that judge.

Recusal may also be an issue with clients if the client has made substantial campaign contributions to an elected judge. Texas has voluntary limits on contributions that most judges follow. See TEX. ELEC. CODE § 253.151 et seq. It is an open question how the Caperton rule interacts with these limits.

A. Texas Statutes and Rules.

1. Tex. R. Civ. P. 18b.

(2) Recusal. A judge shall recuse himself in any proceeding in which

(a) his impartiality might reasonably be questioned; (b) he has a personal bias or prejudice concerning the subject matter or a

party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(c) he or a lawyer with whom he previously practiced law has been a

material witness concerning it; (d) he participated as counsel, advisor or material witness in the matter in

controversy, or expressed an opinion concerning the merits of it, while acting as a lawyer in government service;

(e) he knows that he, individually or as a fiduciary, or his spouse or minor

child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other


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interest that could be substantially affected by the outcome of the proceeding;

(f) he or his spouse, or a person within the third degree of relationship to

either of them, or the spouse of such a person;

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is known by the judge to have an interest that could be

substantially affected by the outcome of the proceeding; (iii) is to the judge’s knowledge likely to be a material witness in

the proceeding;

(g) he or his spouse, or a person within the first degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding.

2. Tex. Const. art. V, § 11: Disqualification of Judges; Exchange of

Districts; Holding Court for Other Judges.

No judge shall sit in any case wherein the judge may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when the judge shall have been counsel in the case. When the Supreme Court, the Court of Criminal Appeals, the Court of Appeals, or any member of any of those courts shall be thus disqualified to hear and determine any case or cases in said court, the same shall be certified to the Governor of the State, who shall immediately commission the requisite number of persons learned in the law for the trial and determination of such cause or causes. When a judge of the District Court is disqualified by any of the causes above stated, the parties may, by consent, appoint a proper person to try said case; or upon their failing to do so, a competent person may be appointed to try the same in the county where it is pending, in such manner as may be prescribed by law. And the District Judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law. This disqualification of judges of inferior tribunals shall be remedied and vacancies in their offices filled as may be prescribed by law.

B. Texas Cases.

1. In re Marriage of Samford, 173 S.W.3d 887 (Tex. App.—Texarkana, 2005, pet. denied).

In Samford, the court held that a judge did not err in failing to recuse himself earlier from


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the divorce proceeding filed by a lawyer practicing in a small community where the judge was a neighbor of the litigants, the judge knew the husband professionally, and knew the child, who was the subject of the conservatorship action. Id. at 888–90. The court held that the judge’s statements that “the child means absolutely too much to me” and that “the child has been a fixture in my life ever since he’s been a fixture in yours” merely expressed that he would be vigilant to protect child, which was his duty, and there was no indication that judge had an interest in the outcome of the case or had an interest in which parent had the most access to and possession of the child. Id. at 890.

2. Kniatt v. State, 239 S.W.3d 910 (Tex. App.—Waco 2007, pet. ref’d).

In Kniatt, the court held that while judicial conduct may serve as the basis for a motion to disqualify, “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Id. at 918. Thus, when judicial conduct or remarks serve as the basis for a recusal motion, the movant is required to show a “deep-seated favoritism or antagonism that would make fair judgment impossible.” Id.

C. Federal Statutes and Rules.

1. Code of Conduct for United States Judges, Canon 3.

C. Disqualification. (1) A judge shall disqualify himself or herself in a proceeding in which

the judge’s impartiality might reasonably be questioned . . . .

2. 28 U.S.C. § 144 (2011): Bias or Prejudice of Judge.

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

3. 28 U.S.C. § 455 (2011): Disqualification of Justice, Judge, or

Magistrate Judge.

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;


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(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such

capacity participated as counsel, advisor or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or

minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to

either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding; (iii) Is known by the judge to have an interest that could be

substantially affected by the outcome of the proceeding; (iv) Is to the judge’s knowledge likely to be a material witness in

the proceeding.

D. Federal Ethics Opinions.

1. Federal Judicial Ethics Opinion 20 (2009).

In Opinion 20, the Federal Committee on Codes of Conduct advised that a judge “must disqualify himself or herself in any case in which the judge’s spouse or minor child residing in the household owns stock in a party to the proceeding.”


In Opinion 26, the Federal Committee on Codes of Conduct advised that in any litigation involving an insurance company in which the judge has an interest, usually in the form of a policy covering the judge, the judge’s spouse, or the judge’s children, the judge should recuse if the outcome of the litigation could substantially affect the value of that interest.


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In Opinion 52, the Federal Committee on Codes of Conduct advised that a judge’s membership in the ABA is not a “financial interest” requiring recusal when the ABA is a party.


In Opinion 57, the Federal Committee on Codes of Conduct advised that if a judge owns stock in a parent corporation, he should recuse himself if one of the parties is a subsidiary of the parent corporation; however, when a judge owns stock in the subsidiary, rather than in the parent corporation, the judge does not have to recuse unless the interest in the subsidiary could be substantially affected by the proceeding.


In Opinion 63, the Federal Committee on Codes of Conduct advised that if a judge has an interest in a corporation appearing as an amicus curiae in the case, the judge should recuse if the judge’s interest could be substantially affected by the outcome of a proceeding. An example of a situation calling for recusal is when the amicus curiae is a corporation in the same industry as one of the parties and a negative result in the case could substantially decrease stock prices in the industry generally. Recusal is required regardless of the stage at which the amicus enters the litigation. Additionally, even if the judge’s interest will not be substantially affected by the outcome of the litigation, the judge should still consider recusal if the judge’s participation will give the appearance of impropriety.


While this opinion deals with the specific situation of a magistrate judge who is undergoing an appointment or reappointment process, it provides a helpful overview of the considerations that apply in many lawyer-judge interactions. In the particular situation of the magistrate judge, the opinion considers whether a magistrate judge is required to recuse when a member of the selection committee that recommended the judge’s appointment appears in that judge’s court. The opinion concludes that a magistrate judge does not have to recuse from a case where a member of the selection committee represents a client except when that selection committee’s process is ongoing (as in the case of a reappointment) or where the reappointment committee process led to a decision not to reappoint the magistrate judge. Even in those situations where recusal is necessary, the recusal does not extend to other members of the firm, only the particular attorney serving on the committee. More broadly, the opinion notes: “Canons 2 and 3 are designed not only to ensure against actual partiality, but also against the appearance of partiality. The critical consideration is whether reasonable persons would perceive the judge as partial. The Commentary to Canon 2A sets forth an objective test for the appearance of impropriety, and this test is also useful in evaluating the impartiality requirement under Canon 3, namely, whether ‘reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge's honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.’ Of course, the perception of partiality will vary depending on the facts and circumstances of any particular situation.”


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In Opinion 101, the Federal Committee on Codes of Conduct advised that when the judge or a close relative of the judge holds a debt interest in one of the parties (debt interests include United States bonds, state or municipal bonds, sewer revenue bonds, industrial development bonds, municipal transit authority bonds, and corporate bonds), the judge must recuse if the debt interest could be substantially affected by the outcome of the proceeding. In determining whether the interest will be substantially affected, the judge should not look to the size of the interest, but rather the extent to which the interest could be affected.


In Opinion 106, the Federal Committee on Codes of Conduct advised that ownership of shares in a mutual fund does not constitute ownership of shares of stock owned by that mutual fund for recusal and disqualification purposes.

E. Federal Cases.

1. Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004) (Scalia, J., Single Justice order).

In Cheney, one of the plaintiffs moved to recuse Justice Scalia on the basis of Justice Scalia’s friendship or appearance of friendship with then Vice President Cheney. Id. at 913–14. The plaintiffs argued that Justice Scalia’s impartiality could reasonably be questioned in a case in which Vice President Cheney was a named party. Id. at 916. Prior to the date the petition for certiorari was filed in the case, Justice Scalia had invited Vice President Cheney to join a group of 12 other hunters on a hunting trip being hosted by a friend of Justice Scalia in Louisiana. Id. at 914. Justice Scalia (sitting as a single justice) denied the plaintiff’s motion, holding that while friendship between a litigant and a Supreme Court Justice is a ground for recusal of the Justice where the personal fortune or personal freedom of the litigant is at issue, it is traditionally not a ground for recusal where, as in this case, an official action was at issue. Id. at 920.

2. Liteky v. United States, 510 U.S. 540 (1993).

In Liteky, the Supreme Court held that the required recusal under 28 USC §455(a) is subject to a limitation known as the “extrajudicial source” factor. Id. at 1157–58. Under this limitation, judicial rulings alone almost never constitute a valid basis for a “bias or partiality” recusal motion. Id. at 1157. This rule flows from the fact that, apart from the surrounding comments or accompanying opinion, such rulings cannot possibly show reliance on an extrajudicial source (knowledge acquired outside the judicial proceedings); and, absent such reliance, prior judicial rulings require recusal only when they evidence such deep-seated favoritism or antagonism as would make fair judgment impossible. Id. Second, opinions formed by a judge on the basis of facts introduced or events occurring during current or prior proceedings are not grounds for a recusal motion unless they display a similar degree of favoritism or antagonism. Id. Therefore, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily will not support a bias or partiality challenge. Id.


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3. United States v. Kahre, No. 2:05-cr-121 DAE (RJJ), 2008 WL 5246034 (D. Nev. Dec. 15, 2008).

In Kahre, the defendant moved to recuse the magistrate judge presiding over his case under 28 USC §455(a) and on the basis that the relationship between the judge and the prosecution’s witness—who were members of the same church—would negatively impact his criminal case. Id. at *1–2 The defendant asserted that the judge and the prosecution’s witness “engaged in several extrajudicial conversations in which they discussed the defendants and their pending criminal cases” and that the judge and the witness had a personal and spiritual relationship. Id. at *2. The court noted that claims for recusal must be evaluated on an objective basis such that “what matters is not the reality of bias or prejudice, but its appearance.” Id. at *3. The court acknowledged that the judge’s recommendation of the individuals for membership in the church and that his position in the church as counselor provided a certain amount of authority within the church and, consequently, over the witness. Those facts, the court stated, “are certainly of note with respect to the judge’s impartiality.” Id. at *6. However, the court ultimately found that the witness and the judge only had casual conversations at church, had spoken less than five times in the last three to four years, and were not social friends but knew each other through official church business. Id. As a result, the defendant’s motion for recusal was denied. Id. at 7.

F. Certificates of Interested Parties.

One of the primary vehicles for assisting courts in accurately identifying required recusals is the certificate of interested parties. Required by many local rules, the certificate of interested parties identifies all individuals or entities with an interest in pending litigation including named parties, relevant corporate family members, lawyers, and any other individual or entity with a significant interest in the outcome of a given case.

1. Fed. R. Civ. P. 7.1. “Disclosure Statement.”

(a) Who Must File; Contents. A nongovernmental corporate party must file 2 copies of a disclosure statement that:

(1) identifies any parent corporation and any publicly held corporation owning 10% or more of its stock; or

(2) states that there is no such corporation.

(b) Time to Filing; Supplemental Filing. A party must:

(1) file the disclosure statement with its first appearance, pleading,


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petition, motion, response, or other request addressed to the court; and (2) promptly file a supplemental statement if any required information

changes.

2. N.D. Tex. Loc. R. 3.1. “Filing Complaint by Electronic Means.”

A plaintiff may file a complaint by electronic means by following the procedures set forth in the ECF Administrative Procedures Manual. The complaint must be accompanied by:

. . .

(c) a separately signed certificate of interested persons—in a form approved by the clerk—that contains—in addition to the information required by Fed. R. Civ. P. 7.1(a)—a complete list of all persons, associations of persons, firms, partnerships, corporations, guarantors, insurers, affiliates, parent or subsidiary corporations, or other legal entities that are financially interested in the outcome of the case. If a large group of persons or firms can be specified by a generic description, individual listing is not necessary.

3. N.D. Tex. Loc. R. 3.2. “Filing Complaint on Paper.”

To file a complaint on paper, a plaintiff must provide the clerk: . . .

e) a separately signed certificate of interested persons—in a form approved by

the clerk—that contains—in addition to the information required by Fed. R. Civ. P. 7.1(a)—a complete list of all persons, associations of persons, firms, partnerships, corporations, guarantors, insurers, affiliates, parent or subsidiary corporations, or other legal entities that are financially interested in the outcome of the case. If a large group of persons or firms can be specified by a generic description, individual listing is not necessary.

4. N.D. Tex. Loc. R. 7.4. “Certificate of Interested Persons.”

The initial responsive pleading that a defendant files in a civil action must be accompanied by a separately signed certificate of interested persons that complies with LR 3.1(c) or 3.2(e). If the defendant concurs in the accuracy of another party’s previously-filed certificate, the defendant may adopt that certificate. 5. 5th Cir. R. 28.2.1: “Certificate of Interested Persons.”

a) Each certificate must list all persons known to counsel to be interested, on all sides of the case, whether or not represented by counsel furnishing the certificate. Counsel has the burden to ascertain and certify the true facts to the court.


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V. The Prohibition on Ex Parte Communications.

Perhaps the biggest minefield in the area of lawyer-judge interactions is that of ex parte and other improper communications. Initiating an ex parte communication with a judge is a serious ethical violation, and lawyers who violate this rule may be subject to a variety of disciplinary measures. Lawyers should therefore avoid oral ex parte communications and diligently send copies of any written communication with the court to opposing counsel. In Texas, the prohibition against ex parte communications includes communications not only with traditional courts but also with administrative agencies acting in a judicial capacity. Thus, lawyers who represent clients in front of administrative agencies must also avoid ex parte communications with members of such an agency when a client has a pending adjudicative matter.

A. Rules and Opinions Governing Lawyers.

1. Tex. Disciplinary Rules Prof’l Conduct R. 3.05: “Maintaining Impartiality of Tribunal.”

A lawyer shall not: (a) seek to influence a tribunal concerning a pending matter by means prohibited

by law or applicable rules of practice or procedure; (b) except as otherwise permitted by law and not prohibited by applicable rules of

practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter other than:

(1) in the course of official proceedings in the cause; (2) in writing if he promptly delivers a copy of the writing to opposing

counsel or the adverse party if he is not represented by a lawyer; (3) orally upon adequate notice to opposing counsel or to the adverse

party if he is not represented by a lawyer.

(c) For purposes of this rule:

(1) “Matter” has the meanings ascribed by it in Rule 1.10f of these Rules; (2) A matter is “pending” before a particular tribunal either when that

entity has been selected to determine the matter or when it is reasonably foreseeable that that entity will be so selected.


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2. FTC v. Namer, No. 06-30528, 2007 WL 2974059 (5th Cir. Oct. 12, 2007) (unpublished).

In Namer, the defendant argued that the “judge’s pointed and adamant refusal to meet with him provides evidence of the judge’s partiality.” Id. at *5. Rejecting the defendant’s argument, the Fifth Circuit held that it was neither improper nor did it show impermissible bias for a judge to refuse to consider an ex parte communication. Id.

3. In re J.B.K., 931 S.W.2d 581 (Tex. App.—El Paso 1996, no writ).

In J.B.K, a lawyer allegedly engaged in an improper ex parte communication with a member of the court’s staff in an effort to determine the lawyer’s “chances” and whether he should settle a pending case. Id. at 583. The El Paso Court of Appeals found that these allegations, if true, would raise “substantial question[s] as to [the lawyer’s] honesty, trustworthiness, and fitness as a lawyer.” Id. at 582–83. The court found that the duties of the Code of Judicial Conduct regarding reporting lawyer misconduct were mandatory and ordered a copy of the opinion to be sent to the General Counsel of the State Bar of Texas for investigation. Id. at 585.

4. Ex Parte Contacts With State Agency Members: Professional Ethics Opinion 604.

In Opinion 604, the Commission cautioned that lawyers also should avoid ex parte communications with members of state agencies when the agency is acting in its judicial capacity (for example, when an agency is approving an individual permit application). However, lawyers may engage in ex parte communications with members of state agencies when the agency is acting in its legislative capacity (for example, when an agency is engaged in rulemaking) because Rule 3.05 only applies to entities acting as a “tribunal.” In the administrative context, the question of whether a particular matter is “pending” under Rule 3.05 is a fact dependent inquiry; however, the Committee noted that once a client affirmatively decides to file the application for a permit, the matter would be pending, even before the application was actually filed.

B. Rules and Opinions Governing Judges.

1. Texas Judges.

(a) Tex. Code Jud. Conduct, Canon 3: “Performing the Duties of Judicial Office Impartially and Diligently.”

B. Adjudicative Responsibilities.

. . .

(8) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications


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made to the judge outside the presence of the parties between the judge and a party, a lawyer, a guardian or lawyer ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance with this subsection by court personnel subject to the judge’s direction and control. This subsection does not prohibit:

(a) communications concerning uncontested administrative or uncontested procedural matters; (b) conferring separately with the parties and/or their lawyers in an effort to mediate or settle matters, provided, however, that the judge shall first give notice to all parties and not thereafter hear any contested matters between the parties except with the consent of all parties; (c) obtaining the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond; (d) consulting with other judges or with court personnel; (e) considering an ex parte communication expressly authorized by law.

. . .

(10) A judge shall abstain from public comment about a pending or impending proceeding which may come before the judge’s court in a manner which suggests to a reasonable person the judge’s probable decision on any particular case.

(b) Texas Judicial Ethics Opinion 154 (1993): “Ex Parte

Communications from Litigants.”

In Opinion 154, the Texas Committee on Judicial Ethics addressed a judge’s ethical obligations upon receiving a letter from a litigant that attempts to communicate privately with the judge. The Committee held that a judge shall not permit or consider ex parte or other private communications concerning a pending or “impending” judicial proceeding. “Judges may comply with [the Canons] by doing the following: (1) Preserve the original letter by delivering it to the court clerk to be file marked and kept in the clerk’s file; (2) Send a copy of the letter to all opposing counsel and pro se litigants; (3) Read the letter to determine if it is proper or improper;


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if improper, the judge should send a letter to the communicant, with a copy of the judge’s letter to all opposing counsel and pro se litigants stating . . . that such communication should cease, that the judge will take no action whatsoever in response to the letter, and that a copy of the letter has been sent to all opposing counsel and pro se litigants.”

(c) Spigener v. Wallis, 80 S.W.3d 174 (Tex. App.—Waco 2002, no pet.).

In Spigener, the appellant claimed due process violations based upon alleged ex parte communications at two hearings she did not attend. Id. at 181. The two hearings she challenged were found not to be ex parte because the merits were not considered. Id. at 182. Appellant also claimed that another communication was ex parte because she could not hear what the judge said at a hearing where she was present. Id. at 183. According to appellant’s witness, appellee’s counsel approached the bench to hand the judge papers to sign. Id. The witness saw the judge’s lips move but could not hear what was said. Id. However, because the communications were made in appellant’s presence and in open court, the Waco Court of Appeals found that they were not ex parte communications. Id. (Moral of the story: when your opponent goes up to the bench at a hearing, go with him or her.)

(d) Erskine v. Baker, 22 S.W.3d 537 (Tex. App.—El Paso 2000, pet. denied).

In Erskine, appellant sought a mistrial on two separate occasions based on two separate allegations of ex parte communications. Id. at 538–39. During the trial, outside the presence of opposing counsel, the judge told one counsel to mention a certain fact during closing. Id. at 538. Later, the judge called a witness in the case on the telephone and asked about an exhibit without notifying the parties. Id. at 538. Although a judge is allowed some discretion in expressing himself in controlling a trial, the appellate court found these contacts improper. Id. at 540. However, the court also held that judgment should not be reversed unless there was a showing of both impropriety and prejudice. Id. Upon review of the entire record, the court declined to reverse finding that the appellant was not harmed by the trial court’s actions and, further, the appellant did not demonstrate that the judge’s comments resulted in an improper verdict. Id.

2. Federal Judges.

(a) Code of Conduct for United States Judges, Canon 3: “A Judge Should Perform the Duties of the Office Impartially and Diligently.”

The duties of judicial office take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the following standards: A. Adjudicative Responsibilities.

. . .


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(4) A judge should accord to every person who has a legal interest in a proceeding, and that person’s lawyer, the full right to be heard according to law. Except as set out below, a judge should not initiate, permit, or consider ex parte communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers. If a judge receives an unauthorized ex parte communication bearing on the substance of a matter, the judge should promptly notify the parties of the subject matter of the communication and allow the parties an opportunity to respond, if requested. A judge may:

(a) initiate, permit, or consider ex parte communications as authorized by law;

(b) when circumstances require it, permit ex parte communication

for scheduling, administrative, or emergency purposes, but only if the ex parte communication does not address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication;

(c) obtain the written advice of a disinterested expert on the law,

but only after giving advance notice to the parties of the person to be consulted and the subject matter of the advice and affording the parties reasonable opportunity to object and respond to the notice and to the advice received; or

(d) with the consent of the parties, confer separately with the

parties and their counsel in an effort to mediate or settle pending matters.

. . .

(6) A judge should not make public comment on the merits of a matter

pending or impending in any court. [subject to certain exceptions].

3. Discriminatory Communications.

(a) Tex. Disciplinary Rules Prof’l Conduct R. 5.08: “Prohibited Discriminatory Activities.”

(a) A lawyer shall not willfully, in connection with an adjudicatory proceeding, except as provided in paragraph (b), manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity.


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(b) Paragraph (a) does not apply to a lawyer’s decision whether to

represent a particular person in connection with an adjudicatory proceeding, nor to the process of jury selection, nor to communications protected as “confidential information” under these Rules. See Rule 1.05(a), (b). . . .

(b) Tex. Code Jud. Conduct Canon 3: “Performing the Duties of Judicial Office Impartially and Diligently.”


. . .

(6) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice . . . .

(7) A judge shall require lawyers in proceedings before the court to

refrain from manifesting, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status against parties, witnesses, counsel or others . . . .

(c) In re Barr, 13 S.W.3d 525 (Tex. Rev. Trib. 1998, no appeal).

In Barr, a judge was removed from the bench for numerous and repeated violations of the ethics canons including violations relating to repeated sexually offensive conduct such as making sexually suggestive remarks to lawyers and calling female prosecutors “babe.” Id. at 531. “[W]e find [the judge’s] sexist manner in addressing female Assistant District Lawyers in his court as ‘babes’ to be inappropriate because it undermines a lawyer’s role in the judicial process by indicating that she is not to be taken seriously and thus jeopardizes the proper administration of justice by hindering the female lawyer from properly representing her client . . . .” Id. at 536.

VI. The Duty To Avoid Undue Delay.

Many business torts cases, like most complex litigation, will involve large numbers of documents and extensive discovery. The pretrial activity in these cases gives the parties—and their lawyers—considerable opportunity to delay the proceedings, whether by submitting excessive discovery requests or filing unnecessary pretrial motions. Both judges and lawyers have an ethical duty to minimize unnecessary delay. Any request made solely to inflict unnecessary costs or otherwise burden an opposing party violates the ethical rules and exposes a lawyer to possible sanctions and discipline. Lawyers also may be disqualified from the proceedings altogether.

In short, lawyers must strive to behave reasonably—even in contentious, high stakes litigation. Lawyers who unnecessarily cause delay or impose increased costs do so at their own peril and may be subject to a variety of sanctions.


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A. Tex. Disciplinary Rules Prof’l Conduct R. 3.02: “Minimizing the Burdens and Delays of Litigation.”

In the course of litigation, a lawyer shall not take a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter.

1. In re Vossdale Townhouse Ass’n, Inc., 302 S.W.3d 890 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

In Vossdale, the plaintiffs propounded 31,448 requests for admission and 1,136 requests for production on the defendants. Id. at 891. The defendants moved for protection from discovery and sanctions for discovery abuse. Id. The trial court granted the defendants’ motion and disqualified the plaintiff’s lawyer from appearing in the case. Id. at 892. The plaintiffs argued that the trial court abused its discretion by denying plaintiffs their choice of counsel. Id. The court of appeals held that the excessive discovery requests were sanctionable and that they violated Texas Disciplinary Rule of Professional Conduct 3.02; however, the court of appeals nevertheless reversed because the trial court abused its discretion in imposing the extreme sanction of disqualifying the plaintiff’s lawyer. Id. at 895–96.

2. In re Terminix Int’l, Co., L.P., 131 S.W.3d 651 (Tex. App.—Corpus Christi 2004, no pet.).

In Terminix, the court upheld sanctions against a lawyer who refused to fax a copy of a petition for a writ of mandamus to opposing counsel. Id. at 652–63. The lawyer sent the petition via certified mail to opposing counsel notwithstanding the fact that the court was hearing the motion on an expedited schedule; thus, the lawyer’s refusal to fax the petition meant that opposing counsel did not receive it until two days before the response was due to the court. Id. at 652. Citing Texas Disciplinary Rule of Professional Conduct 3.02, the court of appeals held that “refusal to fax a copy of the petition for writ of mandamus to opposing counsel was unreasonable and designed to thwart opposing counsel’s ability to timely and effectively respond to the petition.” Id. at 654. Thus, the court upheld sanctions in the amount of $1500 against the lawyer. Id. at 652.

3. Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B (BLM), 2008 WL 66932 (S.D. Cal. Jan. 7), vacated in part, 2008 WL 638108 (S.D. Cal. Mar. 5, 2008).

In Qualcomm, one of the more widely-cited cases involving e-discovery violations, a magistrate judge imposed sanctions for “monumental and intentional discovery violations” against six of Qualcomm’s retained lawyers and Qualcomm itself for failing to produce documents requested numerous times by the opposing party. Id. at *17. The court found that “[p]roducing 1.2 million pages of marginally relevant documents while hiding 46,000 critically important ones does not constitute good faith and does not satisfy either the client’s or attorney’s discovery obligations.” Id. at *9. The penalties included a sanction of $8,568,633.24 to be paid to the opposing party, mandatory attendance at a court-created ethics program, and referral to the state bar for further ethical investigation. Id. at *17–19.


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B. Tex. Code Jud. Conduct, Canon 3: “Performing the Duties of Judicial Office Impartially and Diligently.”


. . .

(9) A judge should dispose of all judicial matters promptly, efficiently and fairly.

C. Code of Conduct for United States Judges, Canon 3: “A Judge Should Perform the Duties of the Office Impartially and Diligently.”

A. Adjudicative Responsibilities.

. . .

(5) A judge should dispose promptly of the business of the court.

VII. Lawyer’s Duty to Play Fair and Be Candid with the Court and Judge’s Duty to Remain Above the Fray.

Lawyers have an ethical duty not to make or suborn false statements of fact or law to a tribunal. Further, lawyers must disclose all directly controlling adverse authority to a tribunal. A lawyer’s duty to zealously represent his client does not permit misrepresentations to the court. Decisions based upon fraudulent documents or false testimony undermine the integrity of the justice system and court process. Similarly, failing to bring adverse authority to the Court’s attention may result in an incorrect decision. An appeal that would not have been necessary if the authority were revealed may then follow—costing time and money and unnecessarily burdening the appellate court. Appellate courts do not take this rule lightly. See, e.g., Ibarra v. State, 782 S.W.2d 234 (Tex. App.—Houston [14th Dist.] 1989, no writ) (lawyer violated code by submitting a brief identical to a previous losing brief; counsel was put on notice that further similar conduct would be referred to the State Bar); Grogen v. State, 745 S.W.2d 450 (Tex. App.—Houston [1st Dist.] 1988, no writ) (appellate court submitted lawyer’s omission of important facts and misstatements regarding case holdings to the State Bar). While a judge should do her utmost to find all relevant cases, that fact does not excuse the lawyer’s compliance with this rule.

A. Tex. Disciplinary Rules Prof’l Conduct R. 3.03: “Candor Toward the Tribunal.”

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid

assisting a criminal or fraudulent act; (3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact


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which the lawyer reasonably believes should be known by that entity for it to make an informed decision;

(4) fail to disclose to the tribunal authority in the controlling jurisdiction known

to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(5) offer or use evidence that the lawyer knows to be false.

1. Texas Professional Ethics Opinion 480 (1991).

In Opinion 480, the Supreme Court of Texas Professional Ethics Committee addressed whether a lawyer has an obligation to disclose facts when disclosure is necessary to avoid a criminal or fraudulent act and whether a lawyer is prevented by the attorney-client privilege from making such a disclosure. The Committee set out a hypothetical bankruptcy situation in which a lawyer was retained by a defendant in an involuntary bankruptcy petition. At the time of trial, the lawyer was unaware that funds were returned to the president and sole shareholder of defendant corporation and placed in a “Trust” for his benefit. The court denied the petition. The lawyer was of the opinion that if the bankruptcy court had known of the “Trust” its decision may have been different.

The Committee examined the relevant portions of Rule 3.03, and it advised that under Rule 1.05(c)(4) a lawyer is permitted to reveal information necessary to comply with Rule 3.03(a). Therefore, the lawyer is required to make a good faith effort to persuade the client to reveal the “Trust,” and, if unsuccessful, the lawyer should disclose the existence of the “Trust” to the bankruptcy court.

B. Tex. Disciplinary Rules Prof’l Conduct R. 3.04: “Fairness in Adjudicatory Proceedings.”

A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence; in anticipation of a dispute

unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.

(b) falsify evidence, counsel or assist a witness to testify falsely, or pay, offer to pay, or

acquiesce in the offer or payment of compensation to a witness or other entity contingent upon the content of the testimony of the witness or the outcome of the case.

. . .

(c) except as stated in paragraph (d), in representing a client before a tribunal:

(1) habitually violate an established rule of procedure or of evidence;


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(2) state or allude to any matter that the lawyer does not reasonably believe is relevant

to such proceeding or that will not be supported by admissible evidence, or assert personal knowledge of facts in issue except when testifying as a witness;

. . .

(5) engage in conduct intended to disrupt the proceedings.

(d) knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client’s willingness to accept any sanctions arising from such disobedience.

1. Resolution Trust Corp. v. Bright, 6 F.3d 336 (5th Cir. 1993).

In Bright, lawyers representing a party to a civil dispute met with a third-party witness and interviewed her about the case. Id. at 338. Thereafter, they prepared an affidavit for her to sign that contained additional statements she had not made but which the lawyers believed to be true. Id. at 339. The lawyers attempted to persuade the witness to sign the affidavit with the additional facts, but she declined. Id. Ultimately, she signed an affidavit that she believed to be true. Id. When these facts were brought before the trial court on a motion for sanctions by the opposing party, the trial court ruled that the lawyers had tampered with a witness by asking her to sign an affidavit containing facts she had not told them. Id. at 340. The trial court disbarred the lawyers from practicing in the Northern District of Texas. Id. at 340–41

On appeal, the Fifth Circuit addressed whether Rule 3.04 prohibited the conduct in question. Appellees argued that, by including the statements that had not been previously made and by attempting to persuade the witness to agree with their interpretation of the facts, the firm and its lawyers had urged the making of “false” statements and engaged in bad-faith conduct. Id. at 341. The Fifth Circuit disagreed and found that even though the lawyers had been aggressive in presenting their theory of the case, the lawyers had pointed out to the witness the statements in question and had made sure the witness signed the affidavit only after she agreed with its contents. Id. Thus, this conduct did not rise to the level of “manufacturing” evidence. Id. Nevertheless, this case points out the importance of being careful in communications with witnesses because of the possibility for overreaching and for misunderstanding of the lawyer’s intent.

2. American Airlines, Inc. v. Allied Pilots Assoc., 968 F.2d 523 (5th Cir. 1992).

In American Airlines, lawyers for a party requesting a temporary restraining order filed witness declarations in support of the TRO application. Two of the declarations were filed with “/s/” and an “executed” date, despite the fact that the witnesses in question had not actually signed the declaration. Id. at 525. The trial court issued the TRO without being told that the declarations were not signed. Id. at 525–26. When the lack of signature was discovered, the trial court sanctioned the lawyers. The court found that the lawyers intended to mislead the court into


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thinking the declarations were copies of original declarations that had been signed. Id. at 526–27. The trial court found that the lawyers had, among other things, violated Texas Disciplinary Rules of Professional Conduct 3.03 and 3.04. Id.

On appeal, the Fifth Circuit reversed the finding of criminal contempt for procedural deficiencies but affirmed the sanctions for misleading the court with respect to the declarations. The lawyers challenged the use of Texas disciplinary rules as a basis for sanctioning them in federal court. The Fifth Circuit held: “This history [of the local rule in Northern District regarding lawyer misconduct] does not convince us that the district court may not refer to the Texas Disciplinary Rules in part to define behavior for purposes of its own rule. In any event, counsels’ behavior is unethical under any standard the district court may have chosen to judge it by.” Id. at 529.

3. In re Moity, 320 F. App’x 244 (5th Cir. 2009) (unpublished).

In Moity, a lawyer was disbarred for one year from practicing before the Western District of Louisiana for his conduct in a telephone conversation with a magistrate judge’s law clerk, for making misrepresentations in a contempt hearing arising out of that phone call, and for impugning the integrity of two federal judges in a federal appellate brief. Id. at 244–45. The Fifth Circuit affirmed, noting that the allegations in the federal appellate brief may not have warranted sanctions but that his conduct towards the law clerk “displayed severe disrespect to the court by the anger and harsh tone shown . . . . This was followed by additional evidence of lack of candor in sworn testimony when the very serious matter of a contempt hearing was held.” Id. at 249.

4. Amelia’s Automotive, Inc. v. Rodriguez, 921 S.W.2d 767 (Tex. App.—San Antonio 1996, no writ).

In Amelia’s Automotive, the appellant contended that the appellee’s counsel had engaged in improper questioning of witnesses and incurable jury argument. Id. at 769. At trial, the appellee’s counsel asked the owner of the appellant’s business whether he knew that his lawyer had been disbarred for filing a frivolous lawsuit. Id. at 772. Appellant’s counsel was not a witness in the case. On appeal, the appellee sought to justify his remarks by arguing that they were invited and provoked. Id. at 773.

In finding that incurable prejudice had occurred, the court noted that unwarranted attacks on the credibility of opposing counsel are generally considered incurable. Id. Further, the court stated that if counsel gives the jury information not in evidence that is calculated to injure the opposing side and that is not in reply to the argument of opposing counsel, such conduct requires a reversal of the case. Id. at 773-74.

In a footnote, the court stated: “It is impossible not to consider the present distaste our society has for attorneys in general. If the members of the jury had the general impression that attorneys are cunning and dishonest, how much more would their opinions be colored once they were exposed to the childish and malicious conduct displayed by the attorneys in this case?” Id. at 774 n.2; but see Casas v. Paradez, 267 S.W.3d 170, 182 (Tex. App.—San Antonio 2008, pet. denied) (“However, attacks against opposing counsel have also been held not to be error when


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the evidence in the record supports such attacks.”).

C. Tex. Code Jud. Conduct, Canon 3(B)(2) and Code of Conduct for United States Judges, Canon 3A(1).

These provisions are virtually identical: (2) A judge should be faithful to the law and shall maintain professional competence in

it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.

Tex. Code Jud. Conduct, Canon 3(B)(2).

(1) A judge should be faithful to, and maintain professional competence

in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism.

Code of Conduct for United States Judges, Canon 3A(1). Thus, lawyers must be candid with the Court, and judges must decide the case at hand based on its merits alone, without regard to public criticism. VIII. Lawyer’s Duty of Public Service.

The duty of public service does not extend only to a subset of practicing lawyers—all lawyers, even those specializing in complex commercial litigation and business torts, have an affirmative duty of public service. This duty requires lawyers to accept court appointments to represent indigent clients, and lawyers are also encouraged to independently seek pro bono opportunities outside of court-appointed representations.

A. Tex. Disciplinary Rules Prof’l Conduct R. 6.01: “Accepting Appointments by a Tribunal.”

A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause . . . .

IX. Conclusion

This paper cannot possibly cover all circumstances between judges and lawyers that can create ethical issues for business lawyers. Nor does it purport to have all the answers. We hope it has provided a framework to guide your conduct and food for thought.


IT’S ALL BUSINESS: THE ETHICS OF LAWYER …KAREN GREN JOHNSON Jones Day Panel: HON. ALFRED...

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