(dissenting):
I dissent.
As the majority opinion persuasively demonstrates, the trial judge in this case had the ultimate discretionary authority to dismiss for lack of prosecution and, perhaps, the factual predicate for exercising that authority, had lesser sanctions been considered and rejected with cause. I believe, however, that dismissal of an otherwise meritorious cause of action for the misconduct of counsel is rarely, if ever, an appropriate remedy in cases of this kind. Rather, the trial court should first consider the more specific and perhaps even more deterrent remedy of imposing costs personally on the offending attorneys. Imposing a penalty on those responsible for wasting the court’s time, while not dismissing a party’s potentially valid claim, seems to me to make the punishment better fit the crime, especially where, as here, the opposing party and its counsel have been equally neglectful of their obligations to the court.
The power to impose costs on attorneys as a disciplinary measure is a well-settled, if perhaps infrequently used, facet of a court’s inherent authority over the attorneys who practice before it. See Note, Civil Procedure — Power of Federal Courts to Discipline Attorneys for Delay in Pretrial Procedure, 38 Notre Dame Law. 158, 161-66 (1963); Note, Dismissal for Failure to Attend a Pretrial Conference and the Use of Sanctions at Preparatory Stages of Litigation, 72 Yale L.J. 819, 829-32 (1963). Courts in this circuit have imposed costs on counsel both under their inherent power and under a complementary federal statute, 28 U.S.C. § 1927. See Bardin v. Mondon, 298 F.2d 235 (2d Cir. 1961); Motion Picture Patents Co. v. Steiner, 201 F. 63 (2d Cir. 1912); Schneider v. American Export Lines, Inc., 293 F.Supp. 117 (S.D.N.Y.1968) (MacMahon, J.); Shapiro v. Freeman, 38 F.R.D. 308 (S.D.N.Y.1965) (MacMahon, J.), Austin Theatre, Inc. v. Warner Bros. Pictures, Inc., 22 F.R.D. 302 (S.D.N.Y.1958); In re Realty Associates Securities Corp., 53 F.Supp. 1013 (E.D.N.Y.1943).1 The costs may be imposed for negligent or reckless action by an attorney that wastes the court’s time and increases the expenses of the court or the opposing party. See Bardin v. Mondon, supra, 298 F.2d at 237-38. But see Gamble v. Pope & Talbot, Inc., 307 F.2d 729 (3d Cir.) (en banc), cert. denied, 371 U.S. 888, 83 S.Ct. 187, 9 L.Ed.2d 123 (1962).
If a district court finds the lesser remedy inadequate in a given ease, or finds that the client was an active participant in or instigator of his attorney’s misconduct, the court clearly has the ultimate authority to dismiss the case. But I would hold that the court must first make a finding that the lesser sanction is inadequate under the circumstances. Only then should the sins of counsel be visited upon the client in an otherwise meritorious and substantial cause. Such a rule would allow me to resist the temptation to ask with Jeremy Bentham
whether justice be a thing worth having, or no? and if it be, at what time is it desirable that litigation should be at an end? after justice is done, or before?
J. Bentham, Rationale of Judicial Evidence, in 7 Works of Jeremy Bentham 172 (J. Bowring ed. 1843).
Since concededly no exploration of the alternatives was made by the court in this case — indeed, the trial court’s form order makes provision for nothing short of Draconian dismissal — I would reverse and remand *598for a consideration of the feasibility of imposing costs on counsel for the appellants.
. The United States District Court for the Eastern District of New York has explicitly embodied this authority in Rule 8(b) of its Individual Assignment and Calendar Rules.