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Trials & Litigation

Rehearing Nixes Sanctions in Unusual Ethics Case Over Claim of Intemperate Remarks By Federal Judge

Posted Sep 1, 2011 6:00 PM CDT
By Martha Neil

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Three lawyers and a client will not be sanctioned for claiming that a federal judge hearing a trade secrets case made intemperate remarks.

Initially sanctioned by U.S. District Judge John McBryde, who sits in Ft. Worth, the four were given another trial by a different judge after the 5th U.S. Circuit Court of Appeals held earlier this year that McBryde shouldn't have heard a sanctions case that stemmed from complaints about his own alleged comments showing a lack of impartiality.

Assigned to hear the sanctions matter, U.S. District Judge David Hittner, who sits in Dallas, found no basis this week to impose penalties on attorneys Joseph Cleveland of Ft. Worth; S. Tracy Long, of Ft. Lauderdale, Fla.; and Melvin Silverman, of Newark, N.J.; or their client, John "Jack" Gillig of Pompano Beach, Fla., reports the Ft. Worth Star-Telegram.

While it is not possible to determine exactly what happened as McBryde was overseeing the trade secrets case, more than five years ago, it appears that declarations at issue in the sanctions case were submitted for a proper purpose, with some evidentiary support and after appropriate prefiling inquiry by the lawyers, as required by Rule 11 of the Federal Rules of Civil Procedure, explained Hittner in a 44-page opinion (PDF) on Monday.

While compliance with Rule 11 doesn't necessarily mean that a lawyer has complied with local federal district court rules in Texas, Hittner continued, "this court is unwilling ... to assess disciplinary measures for 'unethical behavior' and 'conduct unbecoming a member of the bar' as the court has found that the filing of the declarations was not improper, was substantiated at least in part by the evidence, and the prefiling investigation was objectively reasonable. Accordingly, the court declines to discipline attorneys Silverman, Cleveland or Long under this rule."

Earlier coverage:

ABAJournal.com: "5th Circuit Nixes Sanctions Imposed by Federal Judge re Litigant’s Complaints About His Remarks"

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