Krim v. First City Bancorp. of Texas Inc.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________

No. 01-10491
_____________________

In The Matter Of: FIRST CITY BANCORPORATION OF TEXAS INC.,

Debtor.

JERRY KRIM; HAROLD L. HARRIS, Individually and as Trustee of Mazel
Inc. Profit Sharing Plan; GROUP OF SECURITIES LITIGATION CLAIMANTS;
HARVEY GREENFIELD,

Appellants,

versus

FIRST CITY BANCORPORATION OF TEXAS INC.,
Appellee.

_________________________________________________________________

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

March 5, 2002

Before JOLLY, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:

After listening to the oral arguments of the parties and

closely examining the record, we conclude that the sanctioned

lawyer in this case, Harvey Greenfield, was appropriately

sanctioned by the bankruptcy court. His attitude and remarks

toward opposing attorneys, opposing parties, and the bankruptcy

court were -- to understate his conduct -- obnoxious. Although

incivility in and of itself is call for concern, what is most

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disconcerting here is the rationale Greenfield gives for his

behavior. Greenfield asserts that his deplorable and wholly

unprofessional conduct helps him recover more money for his

clients. Unremorsefully and brazenly, Greenfield contends that his

egregious behavior serves him well in settlement negotiations and

is therefore appropriate. Because we find that the bankruptcy

court did not abuse its discretion when it issued sanctions in this

case, we affirm the district court’s judgment affirming the

bankruptcy court’s sanction order.

I

In 1990, Jerry Krim, Harold L. Harris, and several other

claimants filed a class action lawsuit against FirstCity

Bancorporation of Texas Inc. (“FirstCity”), its officers and

directors, and Donaldson, Lufkin & Jenrette Securities Corporation.

Greenfield represented the plaintiff class. In 1992, the parties

reached a $20 million dollar settlement. The settlement, however,

was set aside when federal regulators seized control of FirstCity’s

assets. FirstCity then filed a bankruptcy petition under Chapter

11. Greenfield pursued the claims of the plaintiff class in

bankruptcy, reaching a settlement agreement with FirstCity for over

$10 million in cash and stock. FirstCity incorporated this

settlement agreement into its Joint Plan for Reorganization.

FirstCity then filed a motion to sanction Greenfield, based in

part on his conduct during a July 13, 1995 deposition when

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Greenfield deposed A. Robert Abboud, a director of FirstCity and a

claimant in bankruptcy for indemnification of legal expenses.

Abboud was represented by Hyman Schaffer.

One day before the deposition, the bankruptcy judge conducted

a telephone conference with Schaffer, Greenfield, and Kenneth

Carroll (counsel for FirstCity Liquidating Trust). During this

hearing, the bankruptcy court directed the parties to restrict the

deposition to issues pertinent to Abboud’s indemnification claim.

The bankruptcy court also denied Greenfield’s motion for leave to

refer to a confidential report compiled by Baker & Botts for the

audit committee at FirstCity. Finally, the bankruptcy court urged

Greenfield not to engage in personal attacks during the deposition.

At the deposition, in apparent defiance of the bankruptcy

court’s order, Greenfield used the Baker & Botts report in the

questioning of Abboud. Also during the deposition, the parties

continued to disagree about the proper scope of the deposition

inquiry. So, they again went to bankruptcy court to clarify the

exact issues to be covered at the deposition. At this second

telephone hearing, the bankruptcy court once more cautioned

Greenfield to refrain from personal attacks.

Despite these multiple warnings, during the deposition

Greenfield stated that “I am going to have Mr. Abboud indicted.”

He also accused Schaffer of having been fired from Sullivan and

Cromwell.

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 Greenfield’s obnoxious behavior, however, was not limited to

Abboud’s deposition. Some of the other statements made by

Greenfield during the bankruptcy proceeding -- noted by both the

district court and the bankruptcy court -- are the following:

! He characterized other attorneys, including an Assistant
United States Attorney, as (1) a “stooge”; (2) a “puppet”; (3)
a “weak pussyfooting ‘deadhead’” who “had been ‘dead’ mentally
for ten years”; (4) “various incompetents”; (5)“inept”; (6)
“clunks”; (7) “falling all over themselves, and wasting
endless hours”; (8) “a bunch of starving slobs”; and (6) an
“underling who graduated from a 29th-tier law school.”

! He called the chairman of FirstCity a “hayseed” and a “washed-
up has been,” and he also called other FirstCity directors
“scoundrels.”

! He referred to one law firm, Carrington, Coleman, Sloman &
Blumenthal, L.L.P. as “stooges” of another law firm, Vinson &
Elkins, L.L.P.

! He referred to the work of other attorneys as “garbage” that
demonstrated “legal incompetence” while involving “ludicrous
additional time and expense.”

! He asserted that Vinson & Elkins was using FirstCity as a
“private piggybank.”

! He described an executive compensation plan approved by the
bankruptcy court as a “bribe.”

The bankruptcy court found that Greenfield’s “egregious,

obnoxious, and insulting behavior ... constituted an unwarranted

imposition upon and an affront to [the bankruptcy court] and the

parties and practitioners who have appeared in this bankruptcy that

should not have to be endured in the future.” Accordingly, the

bankruptcy court imposed a monetary sanction of $22,500 and barred

Greenfield from practicing in the bankruptcy courts of the Northern

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District of Texas unless he first obtained written permission from

the court.

Greenfield appealed the sanction order to the district court.

Meanwhile, in an unrelated appeal that involved sanctions against

Greenfield for not conducting a reasonable inquiry into the facts

before filing a pleading, we reversed the sanctions. Krim v.

BancTexas Group, Inc., 99 F.3d 775 (5th Cir. 1996). In the light

of this decision, the district court remanded the case to the

bankruptcy court for reconsideration.

On remand, the bankruptcy court removed the sanction that

barred Greenfield from practicing in the Northern District’s

bankruptcy courts but maintained the monetary penalty. In

addition, the court increased the penalty by $2,500 “in light of

the other findings and conclusions and because Mr. Greenfield filed

a motion seeking to have this Court lift all sanctions against him

... and therefore caused counsel for FirstCity Liquidating Trust,

A. Robert Abboud, and Mr. Schaffer to devote time in appearing and

responding to that motion....”

Greenfield appealed to the district court, which affirmed.

Greenfield now appeals the district court’s decision.

II

We review the bankruptcy court's findings of fact under the

clearly erroneous standard and decide issues of law de novo.

Henderson v. Belknap (In re Henderson), 18 F.3d 1305, 1307 (5th

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Cir. 1994), cert. denied, 513 U.S. 1014 (1994). The imposition of

sanctions is discretionary -- thus, we review the exercise of this

power for abuse of discretion. Matter of Terrebonne Fuel and Lube,

Inc., 108 F.3d 609, 613 (5th Cir. 1997). “A court abuses its

discretion when its ruling is based on an erroneous view of the law

or on a clearly erroneous assessment of the evidence.” Chavez v.

M/V Medina Star, 47 F.3d 153, 156 (5th Cir. 1995). A court,

however, should exercise restraint when considering using its

inherent power to impose sanctions. Id.

In the instant case, the bankruptcy court assessed sanctions

pursuant to (1) Rule 9011 of the Federal Bankruptcy Rules of

Procedure and (2) its inherent authority to police practitioners

before it.

Greenfield does not dispute the factual basis of the

bankruptcy court’s sanction order. He thus concedes that he made

the myriad rude and insulting comments outlined above. Greenfield

defends his comments in two ways. First, he argues that the

statements he made were, for the most part, correct. We find this

argument utterly meritless. Greenfield was never engaged in

stating plain facts -- he was engaged in hurling gratuitous and

hyperbolic insults. Second, Greenfield argues that the actions of

both the court and the opposing attorneys caused his abusive

conduct. Obviously, any error on the part of the court or motive

on the part of opposing attorneys in filing the sanction motion did

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not give Greenfield carte blanche to launch personal attacks and to

defy the court’s directive to cease his wholly unprofessional

conduct.

The only cognizable argument Greenfield makes is that the

sanction imposed was unduly harsh. Sanctions must be chosen to

employ “the least possible power to the end proposed.” Spallone v.

United States, 493 U.S. 265, 280 (1990)(quoting Anderson v. Dunn,

6 Wheat. 204, 231 (1821)). In other words, the sanctioning court

must use the least restrictive sanction necessary to deter the

inappropriate behavior. Here, the bankruptcy court repeatedly

urged Greenfield not to engage in personal attacks. He did not

respond to either the oral or the written warnings of the

bankruptcy court. We therefore hold that the bankruptcy court did

not abuse its discretion by imposing a sanction of $25,000.

Accordingly, the district court judgment affirming the bankruptcy

court is

AFFIRMED.

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