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Walker v. City of Mesquite TX.

United States Court of Appeals, Fifth Circuit
Dec 10, 1997
129 F.3d 831 (5th Cir. 1997)

Summary

holding that a district court's finding that an attorney was guilty of "blatant misconduct" was sufficient to show cognizable reputational injury

Summary of this case from Three Expo Events, L.L.C. v. City of Dall.

Opinion

No. 97-10030.

December 10, 1997.

Michael M. Daniel, Laura Beth Beshara, Dallas, TX, for Plaintiffs-Appellees.

Barbara C. Biddle, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, John F. Daly, Washington, DC, for Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before POLITZ, Chief Judge, and BENAVIDES and PARKER, Circuit Judges.


Thomas Peebles, an attorney with the Department of Justice, appeals an order of the district court sanctioning him for improper litigation tactics. Concluding that we have appellate jurisdiction and finding insufficient evidence to warrant the sanctions imposed, we reverse.

Background

The underlying litigation is a suit against local and federal authorities for violation of federal fair housing laws. Thomas Peebles was principal trial counsel for the Department of Housing and Urban Development. As a result of litigation tactics employed by Peebles the plaintiffs filed an unsworn document entitled "Suggestion of Improper Conduct." In a memorandum opinion issued on June 2, 1994 the trial court found the DOJ attorneys guilty of "blatant misconduct." The DOJ filed a response on behalf of the sanctioned attorneys. There was no further action until October of 1996 when the court deleted the findings of misconduct against all attorneys except Peebles, restating its conclusion that Peebles violated his obligation of candor. The court specifically declared that no further action would be taken as relates to the sanction. A formal order was filed on December 12, 1996 and Peebles timely appealed.

Analysis

At the threshold we must determine whether we have appellate jurisdiction. If we do, we must then determine whether the trial court abused its discretion in sanctioning Peebles herein for a lack of candor.

As a general rule an attorney must await the end of litigation in the district court to appeal a sanction. In Markwell v. County of Bexar, however, we recognized an exception to this rule in those situations in which the sanctioned attorney is no longer involved in the case and an appeal of the sanctions order would not impede the underlying litigation. The record reflects that Peebles no longer is counsel in this action; he is now assigned to a different division in the Justice Department. Consequently, Peebles need not defer until the end of this litigation to appeal the district court's finding that he abused his duty of candor.

878 F.2d 899 (5th Cir. 1989).

Appellees contend that there is no Article III case or controversy, and thus no jurisdiction, because the only possible damage is to Peebles' reputation and that a diminished reputation is not a cognizable injury under the fourteenth amendment. Because the district court imposed no fine, service, or other punishment on Peebles, it is appellees' contention that Peebles has not been injured. In support of this proposition they cite an opinion from a sister circuit stating: "[W]e have already decided that an attorney may not appeal from an order that finds misconduct but does not result in monetary liability, despite the potential reputational effects."

Clark Equipment Co. v. Lift Parts Manufacturing Co., Inc., 972 F.2d 817, 820 (7th Cir. 1992).

Stripped to essentials this proposition would maintain that an attorney has more of a reason and interest in appealing the imposition of a $100 fine than appealing a finding and declaration by a court that counsel is an unprofessional lawyer prone to engage in blatant misconduct. We reject this proposition out of hand, being persuaded beyond peradventure that one's professional reputation is a lawyer's most important and valuable asset. We have heretofore held that monetary penalties or losses are not an essential for an appeal.

See Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 412, 110 S.Ct. 2447, 2464, 110 L.Ed.2d 359 (1990), where Justice Stevens, concurring in part and dissenting in part, wrote: "Despite the changes that have taken place at the bar since I left the active practice 20 years ago, I still believe that most lawyers are wise enough to know that their most precious asset is their professional reputation."

See, for example, United States v. Schrimsher, 493 F.2d 842 (5th Cir. 1974). In Schrimsher, an attorney appealed a contempt conviction entailing a sentence to jail for two hours. No monetary penalties were assessed and at the time of appeal the two hour sentence had been served. In finding that the appeal should go forward we said, "The conviction might damage [the attorney's] reputation in the legal community, and this in turn might affect his ability to attract clients and to represent them effectively. . . ." Id. at 844.

In the case at bar Peebles was reprimanded sternly and found guilty of blatant misconduct. That reprimand must be seen as a blot on Peebles' professional record with a potential to limit his advancement in governmental service and impair his entering into otherwise inviting private practice. We therefore conclude and hold that the importance of an attorney's professional reputation, and the imperative to defend it when necessary, obviates the need for a finding of monetary liability or other punishment as a requisite for the appeal of a court order finding professional misconduct. This appeal presents a reviewable appellate issue.

In addition, we have a strong interest in hearing cases such as this because of our duty to assure that lawyers, as officers of the court, live up to their ethical responsibilities. In the Rules Enabling Act, Congress recognized the authority of the Judicial Branch to control attorney discipline by giving the Supreme Court the authority to prescribe the general rules of practice and procedure in the federal court system. While this grant of authority cannot be used to expand Article III power, it recognizes the need for judicial power in the sanctions area. 28 U.S.C. § 2072 (1992). See also, David Scharf, The Settled Sanction: Post Settlement Appeal and Vacatur of Attorney Sanctions Payable to an Opponent, 61 U.Chi. L. Rev. 1627 (1994). When judicial power imposing sanctions is exercised at the district level, review of that exercise of power appropriately vests at the appellate level.

Our close review of the record in this somewhat troublesome action persuades that although Peebles' tactics pushed the litigation envelope to its outer limits, we are not prepared to say that his litigation tactics descended to the level of professional misconduct. The order of the district court holding to the contrary is therefore REVERSED.


Summaries of

Walker v. City of Mesquite TX.

United States Court of Appeals, Fifth Circuit
Dec 10, 1997
129 F.3d 831 (5th Cir. 1997)

holding that a district court's finding that an attorney was guilty of "blatant misconduct" was sufficient to show cognizable reputational injury

Summary of this case from Three Expo Events, L.L.C. v. City of Dall.

holding that an attorney's challenge to a district court's reprimand and finding of misconduct present a reviewable appellate issue

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holding that a district court's finding that an attorney was guilty of "blatant misconduct" was sufficient to permit an appeal

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holding that "the importance of an attorney's professional reputation, and the imperative to defend it when necessary, obviates the need for a finding of monetary liability or other punishment as a requisite for the appeal of a court order finding professional misconduct"

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holding that even without a monetary sanctions award, the damage to an attorney's reputation caused by a court's sanction creates a reviewable issue sufficient to support Article III jurisdiction over an appeal of the judgment

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holding that a district court's finding that an attorney was guilty of "blatant misconduct" was sufficient to show cognizable reputational injury

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holding that under 28 U.S.C. § 1291 the Courts of Appeal have jurisdiction to hear an appeal of a district court's memorandum opinion issuing reprimands without further sanctions

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holding that monetary sanctions are unnecessary for appellate review of judicial reprimand of attorney and reversing finding of professional misconduct

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holding "that the importance of an attorney’s professional reputation, and the imperative to defend it when necessary, obviates the need for a finding of monetary liability or other punishment as a requisite for the appeal of a court order finding professional misconduct"

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holding that “the importance of an attorney's professional reputation, and the imperative to defend it when necessary, obviates the need for a finding of monetary liability or other punishment as a requisite for the appeal of a court order finding professional misconduct”

Summary of this case from Westergren v. Jennings

holding that an attorney had a right to appeal where the district court sternly reprimanded him on the record and found him guilty of blatant misconduct

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finding jurisdiction over attorney's appeal of sanctions order because "the importance of an attorney's professional reputation, and the imperative to defend it when necessary, obviates the need for a finding of monetary liability or other punishment as a requisite for the appeal of a court order finding professional misconduct"

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finding appealable sanction where attorneys were "reprimanded sternly and found guilty of blatant misconduct"

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concluding attorney can appeal formally entered sanctions entered against him

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In Walker, we explained that "monetary penalties or losses are not an essential for an appeal" because "one’s professional reputation is a lawyer’s most important and valuable asset."

Summary of this case from Montalto v. Miss. Dep't of Corr.

In Walker, the Fifth Circuit merely concluded that the court had jurisdiction to hear an appeal of a formal sanctions order premised solely on damage to the attorney's reputation.

Summary of this case from Tesco Corp. v. Nat'l Oilwell Varco, L.P.

allowing attorney to appeal where he was admonished by trial judge because the court was "persuaded beyond peradventure that one's professional reputation is a lawyer's most important and valuable asset."

Summary of this case from U.S. v. Woodberry

In Walker v. City of Mesquite, 129 F.3d 831, 832 (5th Cir. 1997), we recognized that a district court's finding of blatant misconduct by an attorney resulted in injury to the lawyer's reputation that was reviewable on appeal, "being persuaded beyond peradventure that one's professional reputation is a lawyer's most important and valuable asset."

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allowing an appeal from a district court's order reprimanding an attorney for misconduct despite the lack of a fine or other punishment

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stating "the importance of an attorney's professional reputation, and the imperative to defend it when necessary, obviates the need for a finding of monetary liability or other punishment as a requisite for . . . appeal"

Summary of this case from U.S. v. Ensign

In Walker v. City of Mesquite, 129 F.3d 831, 832 (5th Cir. 1997), the district court found an attorney engaged in "blatant misconduct" by violating his obligation of candor to the court.

Summary of this case from U.S. v. Gonzales

stating "the importance of an attorney's professional reputation, and the imperative to defend it when necessary, obviates the need for a finding of monetary liability or other punishment as a requisite for . . . appeal"

Summary of this case from U.S. v. Gonzales

In Walker v. City of Mesquite, Tex., 129 F.3d 831 (5th Cir. 1997), a government lawyer (Peebles), who was no longer assigned to a pending case, appealed the district court's sanctioning of him for improper litigation tactics.

Summary of this case from Precision Specialty Metals, Inc. v. U.S.

In Walker v. City of Mesquite, 129 F.3d 831 (5th Cir. 1997), the United States Court of Appeals for the Fifth Circuit concluded that an attorney may appeal a public reprimand even when no monetary sanctions have been imposed.

Summary of this case from In re Williams

permitting appeal from formal sanction in the form of a finding of "blatant misconduct"

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Case details for

Walker v. City of Mesquite TX.

Case Details

Full title:DEBRA WALKER, ET AL., PLAINTIFFS, DEBRA WALKER; JEANETTE WASHINGTON; HAZEL…

Court:United States Court of Appeals, Fifth Circuit

Date published: Dec 10, 1997

Citations

129 F.3d 831 (5th Cir. 1997)

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