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Litigation News

Litigation News | 2024

Attorney Sanctions? Not So Fast Holds the Fifth Circuit

Samantha Josephine Stillo


  • Court’s sanction order was error in absence of finding of bad faith conduct.
  • Counsel for both parties were sanctioned.
  • The sanctions were for failing to orders to submit notarized affidavits stating that they read, understood, and would follow specific ethics rules.
Attorney Sanctions? Not So Fast Holds the Fifth Circuit
Jonathan Long FatCamera via Getty Images

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A federal appeals court has reversed a district court’s decision imposing sanctions on counsel for the plaintiff and defendant for failing to strictly adhere to its order to submit notarized affidavits certifying that they had read, understood, and would follow Texas ethics rules, the Texas Lawyer’s Creed, and a prominent ethics decision. The U.S. Court of Appeals for the Fifth Circuit in Gipson v. Weatherford College found that the district court abused its discretion in imposing sanctions because it did not make any finding of bad faith and misconstrued 28 U.S.C. § 1746. Although the counsel in this case were able to avoid the sanctions order, ABA Litigation Section nevertheless urge practitioners to strictly comply with court orders.

Recurring Discovery Disputes Prompt Court Intervention

The underlying matter arose out of an alleged sexual harassment of the plaintiff by a former employee (president) of defendant. Though the matter was active for about seven months, the parties had engaged in approximately five discovery disputes, most of which were launched by the attorney for the defendant. The district court ultimately referred these discovery disputes to a magistrate judge following the fourth discovery dispute, and entered an order “reminding” counsel of their obligations under Dondi Properties Corp. v. Commerce Savings & Loan Assoc., which essentially holds that “all parties should make reasonable efforts to conduct all discovery by agreement.”

Six weeks after the fourth discovery dispute, defendant’s counsel filed another motion for a protective order. On January 31, 2023, the district court issued its “Dondi Order,” in which counsel for both plaintiff and defendant were required to reread the Dondi opinion, the Texas Lawyer’s Creed, and the Texas Rules of Professional Responsibility. Following the adherence of such commands, counsel for both plaintiff and defendant were to certify via an affidavit that they had completed these tasks.

Instead of filing the required affidavits, counsel for both plaintiff and defendant separately filed declarations attesting to their compliance with the court’s Dondi Order. The court struck both declarations for non-compliance, and imposed a $250.00 sanction against both attorneys. Both parties ultimately filed the required affidavits, in compliance with the Dondi Order.

No Finding of Bad Faith Dooms Sanction Order

Though the underlying matter ultimately settled, defendant’s counsel appealed the district court’s sanction order. Counsel for defendant argued that the district court “abused its discretion” because “it did not make any finding of bath faith” and “misconstrued 28 U.S.C. § 1746.”

Applying an abuse of discretion standard of review, the Fifth Circuit agreed. It found that “[i]n order to impose sanctions against an attorney under its inherent power, a court must make a specific finding that the attorney acted in bad faith.” However, no such finding of “bad faith” had been found by the district court prior to imposing sanctions against the attorneys for the parties. The appellate court further held that the defense counsel’s failure to file an affidavit was neither an “error” nor was it “bad faith,” since defense counsel had complied with the district court’s order under federal law.

Indeed, the court of appeals found that 28 U.S.C. § 1746, “by its very terms permits counsel to file an unsworn declaration as a substitute for an affidavit.” And since defense counsel’s “proffered reason for filing such declaration rather than an affidavit was due to inclement weather,” the district court’s imposition of sanctions was “clear abuse of discretion.”

Strictly Comply with Court Orders

Section leaders urge strict compliance with court orders, particularly those that are in the nature of sanctions. “This is a case where context matters,” states Joseph V. Schaeffer, Pittsburgh, PA, cochair of the Litigation Section’s Pretrial Practice & Discovery Section. “Follow the court’s order to the letter,” he warns.

If there is any uncertainly about what a court’s order does not and does not permit, err on the side of careful compliance. “Strict compliance—in the absence of a clarification or permission for a modification—is always the best practice,” adds Jeanne M. Huey, Dallas, TX, cochair of the Section’s Ethics & Professionalism Committee.