It has been 22 years since the Northern District sat, en banc, to issue its opinion in Dondi Properties Corp. v. Commerce Savs. & Loan Ass’n, 121 F.R.D.284 (N.D. Tex. 1988) (en banc). The case, which has been cited nearly 1,000 times, established standards of conduct for attorneys practicing in the Northern District, and is required to be read by all attorneys seeking to appear pro hac vice in the Northern District.
Five of the eleven judges who issued the Dondi opinion still sit in the Northern District (Chief Judge Fitzwater, and Judges Robinson, Fish, Maloney, and Cummings).
Given the case’s importance, we thought it beneficial to hit the highlights here. Dondi actually involved two cases: Dondi Properties Corp. v. Commerce Savings & Loan and Knight v. Protective Life Insurance Co. In Dondi Properties, defendants filed six motions for sanctions, complaining of “plaintiffs’ failure to answer interrogatories, failure to comply with prior orders of the court pertaining to discovery, misrepresenting facts to the court, and improperly withholding documents.” Knight involved a motion to strike a reply brief that the defendant filed without leave of court. (Note that, at the time Dondi was decided, leave of court was required before filing a reply brief. Today, L.R. 7.1(f) provides for reply briefs without leave of court.)
The Northern District took the unusual step of convening en banc “for the purpose of establishing standards of litigation conduct to be observed in civil actions litigated in the Northern District of Texas.” The Northern District summarized the problem as follows:
With alarming frequency, we find that valuable judicial and attorney time is consumed in resolving unnecessary contention and sharp practices between lawyers. Judges and magistrates of this court are required to devote substantial attention to refereeing abusive litigation tactics that range from benign incivility to outright obstruction. Our system of justice can ill-afford to devote scarce resources to supervising matters that do not advance the resolution of the merits of a case; nor can justice long remain available to deserving litigants if the costs of litigation are fueled unnecessarily to the point of being prohibitive.
As judges and former practitioners from varied backgrounds and levels of experience, we judicially know that litigation is conducted today in a manner far different from years past. Whether the increased size of the bar has decreased collegiality, or the legal profession has become only a business, or experienced lawyers have ceased to teach new lawyers the standards to be observed, or because of other factors not readily categorized, we observe patterns of behavior that forebode ill for our system of justice. We now adopt standards designed to end such conduct.
The standards the Northern Districted announced, which litigation counsel must adhere to, are as follows:
(A) In fulfilling his or her primary duty to the client, a lawyer must be ever conscious of the broader duty to the judicial system that serves both attorney and client.
(B) A lawyer owes, to the judiciary, candor, diligence and utmost respect.
(C) A lawyer owes, to opposing counsel, a duty of courtesy and cooperation, the observance of which is necessary for the efficient administration of our system of justice and the respect of the public it serves.
(D) A lawyer unquestionably owes, to the administration of justice, the fundamental duties of personal dignity and professional integrity.
(E) Lawyers should treat each other, the opposing party, the court, and members of the court staff with courtesy and civility and conduct themselves in a professional manner at all times.
(F) A client has no right to demand that counsel abuse the opposite party or indulge in offensive conduct. A lawyer shall always treat adverse witnesses and suitors with fairness and due consideration.
(G) In adversary proceedings, clients are litigants and though ill feeling may exist between clients, such ill feeling should not influence a lawyer’s conduct, attitude, or demeanor towards opposing lawyers.
(H) A lawyer should not use any form of discovery, or the scheduling of discovery, as a means of harassing opposing counsel or counsel’s client.
(I) Lawyers will be punctual in communications with others and in honoring scheduled appearances, and will recognize that neglect and tardiness are demeaning to the lawyer and to the judicial system.
(J) If a fellow member of the Bar makes a just request for cooperation, or seeks scheduling accommodation, a lawyer will not arbitrarily or unreasonably withhold consent.
(K) Effective advocacy does not require antagonistic or obnoxious behavior and members of the Bar will adhere to the higher standard of conduct which judges, lawyers, clients, and the public may rightfully expect.
The Court noted that “[m]alfeasant counsel can expect instead that their conduct will prompt an appropriate response from the court, including the range of sanctions . . . in the Rule 11 context: a warm friendly discussion on the record, a hard-nosed reprimand in open court, compulsory legal education, monetary sanctions, or other measures appropriate to the circumstances.” (citations and quotations omitted).