Federal Judge Recommends Criminal Charges for Lawyers Who Questioned His Impartiality

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Updated: U.S. District Judge John McBryde of Fort Worth, Texas, has sanctioned three lawyers and recommended criminal charges against two of them for motions questioning his integrity in litigation over golf club patents.

McBryde said the plaintiff in the litigation, John Gillig, had used comments the judge had “jokingly” made about contingency fees to support a “fictitious scenario” of bias, according to his 114-page opinion (PDF) issued Jan. 5. McBryde imposed sanctions, even though he could have asked another judge to rule on the issue, the Fort Worth Star-Telegram reports.

It’s not the first time McBryde has battled over removal of cases assigned to him. A 1996 New York Times article says the judge had fought to keep two cases from being removed from his docket because of allegations he had been intemperate. In 1997, the New Orleans-based 5th U.S. Circuit Court of Appeals suspended the judge for a year, citing his “intemperate, abusive and intimidating” conduct, the Star-Telegram says. The U.S. Supreme Court declined to hear McBryde’s appeal, the Times reported in 2002.

In the golf patent case, McBryde recommended criminal charges against lawyers Melvin Silverman and S. Tracey Long, both of whom have offices in Florida, and barred them from practicing in courts in the Northern District of Texas, the Fort Worth Star-Telegram reports. Silverman is banned for life, and Long for 10 years. Both were given pro hac vice status to pursue the Texas suit. McBryde did not recommend criminal charges against a third lawyer, Joseph Cleveland of Fort Worth, but he barred him from practicing in the district for two years, except in cases already pending.

McBryde also recommended criminal charges against Gillig, whom he accused in court documents of being “a liar, a fraud and a phony who played a ‘shell game’ with the facts,” the Star-Telegram reports. Gillig has said the judge’s accusations are not true, the newspaper says.

In his Jan. 5 opinion, McBryde criticized a 2009 plaintiff’s motion seeking to prevent the judge from hearing a second round in the golf litigation, saying that “virtually everything” in several paragraphs of Gillig’s declaration was false. The document cited Gillig’s belief that McBryde “has exhibited personal and extrajudicial bias and prejudice” against him. According to Gillig’s motion, McBryde had addressed the plaintiff in a status conference, saying “you cannot afford to be in this court.” The plaintiff also asserted that McBryde asked his lawyers if they were taking the case on contingency, and if so, they “should not expect to get a house out of this case.” The motion had been filed through Cleveland and Silverman.

McBryde also criticized a 2010 recusal motion claiming the judge had an “overt personal bias against Gillig” in which Long supported Gillig’s previous claims, although he disputed the date of the pretrial conference. Silverman filed the motion.

McBryde says he “jokingly” made some comments about the contingency fees, but Silverman and Gillig had searched for on-the-record comments to support a “fictitious scenario.” McBryde also cited circumstantial evidence that neither Silverman nor Long believed Gillig’s assertions.

McBryde said Cleveland did not make a reasonable inquiry about the facts, and his lack of curiosity and inquiry “are the earmarks of an attorney who knew that he was about to present to the court false information.”

Update: In April 2011, the New Orleans-based 5th U.S. Circuit Court of Appeals vacated McBryde’s order and said a new judge should consider whether the sanctions were warranted. The appeals court said the case concerned McBryde’s alleged remarks showing impartiality, and he should have disqualified himself because he had personal knowledge of the facts at issue.

On remand, U.S. District Judge David Hittner found no basis to impose sanctions on any of the lawyers.

Article updated on Nov. 7, 2016, to reflect subsequent coverage and to reword the fourth paragraph.

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