Commercial Litigation and Arbitration

Sanctions — Improper Coaching of Witnesses — Use of Ethical Rules as Standard of Conduct — Reputational Injury Confers Article III Standing to Appeal Even After Monetary Sanctions Paid —Intentional Failure to Prevent Client from Intentionally Dele

From Ibarra v. Baker, 2009 U.S. App. LEXIS 16753 (5th Cir. July 28, 2009):

Mary Baker, Scott Durfee, and Frank Sanders represented Harris County, Texas, and several of its law enforcement officers in a 42 U.S.C. § 1983 action. The district court found that Baker and Sanders improperly coached defense witnesses, gave or abided false testimony, and vexatiously released a plaintiff's medical records. During the same § 1983 litigation, but in a completely separate incident, Durfee's client deleted approximately 2,500 emails that were under subpoena. The district court found Durfee partially to blame for the emails' deletion. It held Durfee in contempt and sanctioned him for attorney misconduct. It imposed monetary sanctions against all three attorneys, and it disqualified Baker and Sanders from further representation in the case.

[Reputational Injury Confers Appellate Standing]

The underlying § 1983 litigation has settled, and the attorneys' monetary sanctions have been paid or considered paid. Baker, Sanders, and Durfee nevertheless appeal from the findings of attorney misconduct, asserting that the findings are erroneous and will mar each attorney's professional reputation.

The attorneys' concern about their reputation suffices to confer Article III jurisdiction. Durfee's appeal is meritorious, and we vacate all findings that he committed misconduct. We also vacate the findings that Baker and Sanders gave or abided false testimony, but we affirm the findings that Baker and Sanders improperly coached witnesses.


[Improper Woodshedding]

An attorney enjoys extensive leeway in preparing a witness to testify truthfully, but the attorney crosses a line when she influences the witness to alter testimony in a false or misleading way. See generally John S. Applegate, Witness Preparation, 68 Tex. L. Rev. 277 (1989). The district court sanctioned Baker and Sanders in part for using Rodriguez to alter the officers' deposition testimony substantively.

The evidence that Baker and Sanders engaged in this behavior is a bit scant, but the attorneys' appeal does not definitely and firmly convince us that the district court's findings are mistaken. To recap the evidence supporting sanctions, Rodriguez flew from Austin to Houston to meet with Baker and Sanders on September 8, 2004. They discussed the Ibarra litigation at least briefly. Rodriguez did not disclose that this meeting occurred when he testified at the November 29 sanctions hearing, and the meeting came to light only when the Ibarras discovered an entry for it in Rodriguez's billing records.

Rodriguez again flew from Austin to Houston on September 9. He met with Foose, alone. He arrived with a highlighted, marked-up copy of the Valdez/Ibarra trial transcript. Foose happened not to have a copy (other defendants did), and Rodriguez asked Baker and Sanders for permission to give Foose his own. The attorneys assented.

Foose arrived at his September 10 deposition with a page of notes that he claimed to have compiled, alone, after meeting with Rodriguez the day prior. Foose admitted discussing reasonable suspicion, in the abstract, with Rodriguez; but he denied discussing how that standard might apply to the Ibarra litigation. Foose's page of notes lists eight articulable facts supporting reasonable suspicion that Foose had for detaining Sean. These facts closely track Rodriguez's preliminary report.

Although Foose's meeting with Rodriguez had occurred only the day prior, Foose expressed fogginess about many of the meeting's details. The district court, which later had the advantage of observing Foose's demeanor as well as his testimony, ultimately found Foose not to be a credible witness.

Rodriguez flew again from Austin to Houston on September 13. He met with Shattuck, alone. Rodriguez testified that he flew to Houston to meet Foose and Shattuck partly so that he could visit 2911 Shady Park Drive to observe whether Sean could have been photographing anything other than undercover police officers. Rodriguez and Foose drove by the address but remained in Foose's patrol car; neither one stepped out of the car to stand where Sean had been standing. Rodriguez did not go even that far with Shattuck; they ate breakfast, and Rodriguez flew back to Austin without visiting Shady Park Drive.

Meanwhile, Rodriguez's preliminary report had introduced two new concepts that were becoming entrenched in the litigation as defense theories: Foose had reasonable suspicion to detain Sean out of a fear of "retaliation," and Foose and Shattuck had reasonable suspicion to detain Sean after his flight to 2907 Shady Park Drive because the flight occurred in a "high crime area." The Ibarras assert that these "terms of art" are additive of prior testimony, reflecting a conspiracy between Rodriguez, Baker, and Sanders to manufacture a record favorable to the defense. The appearance of these terms in the litigation would not be noteworthy if they merely repackaged the witnesses' prior testimony, neither adding nor subtracting anything substantive.***

Despite Sanders's January 2005 testimony, the weight of the evidence leaves us with something short of a "definite and firm conviction" that the district court erred in concluding that Baker and Sanders, acting through Rodriguez, improperly influenced Foose to testify in conformity with a novel defense theory, previously unsupported by fact, but which was advanced in Rodriguez's preliminary report. We affirm the findings of misconduct against Baker and Sanders for improperly coaching witness testimony concerning "retaliation."

We also affirm the findings of misconduct against Baker and Sanders based on Foose's use of the term "high crime area" during his deposition. ***[W]e cannot say the district court clearly erred in finding that Baker and Sanders, through Rodriguez, improperly coached Foose's "high crime area" testimony. ***

[Abiding False Testimony]

We next consider whether Baker and Sanders abided the giving of false testimony during the November 29, 2004, hearing. The rules of professional conduct permit an attorney to offer or use evidence that the attorney believes, but does not know, to be false. See ABA MODEL R. PROF'L CONDUCT 3.3; TEX. DISC. R. PROF'L CONDUCT 3.03, cmt. 15. The district court wrote that Baker and Sanders "knew or should have known" of inconsistencies in the police officers' testimony and "were aware of or should have been aware of Rodriguez's false testimony" during the November 29 hearing. Because the district court applied a legal standard too permissive of sanctions, we reverse. We vacate the relevant findings of misconduct.

[Unintentional Failure to Prevent Client from Intentionally Deleting Emails that Have Been Subpoenaed Is Not Sanctionable]

Durfee represented Harris County's District Attorney, Charles Rosenthal, in relation to subpoenas issued during the Ibarra litigation. On October 31, 2007, the Ibarras served a subpoena duces tecum on Rosenthal for all emails sent or received by Rosenthal, Rosenthal's First Assistant, or Durfee between July 1, 2007, and October 15, 2007. The subpoena encompassed 12,785 emails, 4,792 of which were in Rosenthal's email folders.

Durfee met with Rosenthal on November 5 and prepared to file a motion to quash the October 31 subpoena. Durfee accessed Rosenthal's computer, compiled a table listing the subject line of each of Rosenthal's subpoenaed emails, and printed the table. Durfee did not print the emails themselves, and he did not otherwise back them up. Durfee also did not specifically instruct Rosenthal to preserve the subpoenaed emails. Rosenthal, however, had received notice of the subpoena and later testified that he understood its scope.

After Durfee left Rosenthal's office on November 5, Rosenthal deleted approximately 2,500 of the subpoenaed emails. There is no evidence that Durfee knew Rosenthal was going to do this.


Durfee first learned of the emails' deletion near the close of business November 21, which was the day before Thanksgiving. He instructed the office's Director of Information Services Technology (Gary Zallar, or "Zallar") to work through the holiday weekend to recover as many emails as possible. Durfee did not immediately inform plaintiffs' counsel or the court that the emails had been deleted. Zallar worked through the weekend, but he was unable to restore all of the deleted emails.

On Monday, November 26, the records review began as scheduled. Durfee was unable to join plaintiffs' counsel for the records review, but at his direction a staff attorney informed them that Rosenthal had deleted some of the emails. Plaintiffs' counsel reviewed the remaining emails over the next three days and deposed Rosenthal the day after that. The plaintiffs moved for contempt and sanctions against Rosenthal on November 30, and they supplemented this motion on December 2 to include Durfee (and Rosenthal's First Assistant, who is not party to this appeal). The November 30 motion for contempt and sanctions was the first that the district court had heard of the deleted emails.

The district court considered the sanctions motion at a two-day hearing, soon after which the underlying § 1983 case settled. After the case settled, the district court: denied sanctions as to Rosenthal's First Assistant; held Rosenthal in contempt and sanctioned him $18,900; and held Durfee in contempt and jointly and severally liable for $5,000 of the $ 18,900. Rosenthal paid the monetary sanctions.


The findings of misconduct against Durfee cannot stand unless the district court had a legal basis for finding Durfee's conduct sanctionable. The district court pointed to the following legal bases for sanctions: its inherent power; Federal Rules of Civil Procedure 26(g) and 45; and Texas Disciplinary Rules of Professional Conduct 3.03(a), 4.01(b), 8.04(a)(1), 8.04(a)(3), and 8.04(a)(4). We consider the validity of each legal basis in turn.


"The court must make a specific finding of bad faith" to impose sanctions under its inherent power. Toon v. Wackenhut Corrections Corp., 250 F.3d 950, 952 (5th Cir. 2001). The district court here did not make a specific finding that Durfee acted in bad faith. It instead wrote that "even in the absence of bad faith," Durfee's omissions merited sanctions under the court's inherent power. Because the district court did not find that Durfee acted in bad faith, imposing sanctions against Durfee was an abuse of discretion insofar as the sanctions were based on the court's inherent power.


The district court cited Federal Rule of Civil Procedure 26(g) as a basis for sanctioning Durfee. Rule 26(g) requires an attorney to certify that each discovery disclosure, "to the best of the person's knowledge, information, and belief formed after a reasonable inquiry," is "complete and correct as of the time it is made." FED. R. CIV. P. 26(g)(1). "If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both." FED. R. CIV. P. 26(g)(3). When invoking Rule 26(g) as a basis for sanctions, the district court must specify which discovery certification was sanctionable. Cf. Sheets v. Yamaha Motors Corp., 849 F.2d 179, 185 (5th Cir. 1988) ("We do not search the record for an order that might possibly support the district court's $ 25,000 award under Rule 37(b)(2) because this may not be the portion of the record upon which the court relied.").

Here, the district court did not point to a Rule 26 certification that Durfee made in relation to the October 31 subpoena as being sanctionable. Moreover, the record suggests that Durfee made no such certification: on November 26, Durfee, through a Harris County staff attorney, informed the Ibarras' counsel that the set of subpoenaed emails available for their review was incomplete because Rosenthal had deleted some. The district court also made no finding that any certification of completeness that Durfee did make was without substantial justification. Imposing sanctions against Durfee was an abuse of discretion insofar as the sanctions were based on Rule 26(g).


The district court cited Federal Rule of Civil Procedure 45 as a basis for sanctioning Durfee. Rule 45 provides that the "issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena." FED. R. CIV. P. 45(e) (2008). Whether a person disobeyed a subpoena depends on what the subpoena required. See Fremont Energy Corp. v. Seattle Post Intelligencer, 688 F.2d 1285, 1287 (9th Cir. 1982) ("The subpoena served on Moss directed him to appear and testify at a deposition. This Moss did. The subpoena did not direct Moss to answer any of the specific questions propounded by Fremont. If he is to be held in contempt for failure to answer questions, then, it must be pursuant to Rule 37(b)(1) . . . .").

Here, no subpoena was issued to Durfee in his individual capacity. The October 31 subpoena commands "you" (presumably the person to whom the subpoena was issued) to produce emails. The subpoena does not command any other person to do anything. Durfee could not have disobeyed the subpoena if it did not require him to act, and the district court therefore abused its discretion insofar as it sanctioned Durfee under Rule 45.


The district held that Durfee violated Texas Disciplinary Rules of Professional Conduct 3.03(a) and 4.01(b) when Durfee failed immediately to disclose that Rosenthal had deleted the subpoenaed emails.

Texas Disciplinary Rule 3.03(a) provides that a lawyer shall not knowingly "fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a . . . fraudulent act." Texas Disciplinary Rule 4.01(b) similarly provides that, in the course of representing a client, a lawyer shall not knowingly "fail to disclose a material fact to a third person when disclosure is necessary to avoid . . . knowingly assisting a fraudulent act perpetrated by a client."

Durfee argues that his failure immediately to disclose the emails' deletion did not amount to assisting — much less knowingly assisting — a fraudulent act. We agree. Durfee learned of the emails' deletions near the close of business the day before Thanksgiving. He informed plaintiffs' counsel of the deletions the next business day, and he had a staff member work through the interim holiday weekend to recover the deleted emails. Though he did not immediately inform the court of the deletions, this failure did not amount to assisting a fraudulent act when Durfee already had informed the Ibarras' counsel of the deletions and had worked to recover the emails. The district court erred in using Texas Disciplinary Rules 3.03 and 4.01 as bases for sanctions.


The district court held that Durfee violated Texas Disciplinary Rule of Professional Conduct 8.04(a)(1), (3), and (4) "[b]y failing to bring Rosenthal's actions to light upon becoming aware of them." Texas Disciplinary Rule of Professional Conduct 8.04(a) states that a lawyer shall not:

(1) violate these rules, knowingly assist or induce another to do so, or do so through the acts of another, whether or not such violation occurred in the course of a client-lawyer relationship;

* * *

(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(4) engage in conduct constituting obstruction of justice; . . . .

Durfee did not violate Rule 8.04(a)(1) for the same reasons that he did not violate Rule 3.03 or Rule 4.01. Rule 8.04(a)(3) also provides no ground to sanction Durfee because the district court did not find that, by failing to bring Rosenthal's actions to light, he engaged "in conduct involving dishonesty, fraud, deceit or misrepresentation"; the court instead described Durfee's conduct variously as neglectful or reckless.

Share this article:


Recent Posts