dissenting.
If I were to decide this case solely on the facts set forth in the majority opinion, I would no doubt concur with the majority, but when the applicable standard of review is superimposed on the complete factual background, the extreme sanction of dismissal was not only unwarranted but is a gross miscarriage of justice.
There are many cases holding that dismissal is an extreme sanction which should not be employed without:
(1) some showing of bad faith on the client’s part as distinct from the attorney’s conduct; and
(2) other less severe sanctions having first been imposed.
The best statement of the underlying rationale of this line of cases is found in Jackson v. Washington Monthly Co., 569 F.2d 119,123 (D.C.Cir.1977):
We are constrained to conclude this appeal on a note of caution. Trial court dismissal of a lawsuit never heard on its merits is a drastic step, normally to be taken only after unfruitful resort to lesser sanctions. And while appellate review is limited by the binding authority of Link to whether judicial discretion has been abused, a sound discretion hardly comprehends a pointless exaction of retribution. Dismissals for misconduct attributable to lawyers and in no wise to their clients invariably penalize the innocent and may let the guilty off scot-free. That curious treatment strikes us as both anamalous and self-defeating. When the client has not personally misbehaved and his opponent in the litigation has not been harmed, the interests of justice are better served by an exercise of discretion in favor of appropriate action against the lawyer as the medium for vindication of the judicial process and protection of the citizenry from future imposition. Public confidence in the legal system is not enhanced when one component punishes blameless litigants for the misdoings of another component of the system; to laymen unfamiliar with the fundamentals of agency law, that can only convey the erro-“ neous impression that lawyers protect other lawyers at the expense of everyone else. (Emphasis added).
Generally speaking, under the principles which appellant urges on this Court, the reviewing Court first reviews the case with an eye toward finding other lesser sanctions which could be imposed on the errant party. Flaska v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir.) cert. *4den. 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968); Asociación de Empleados del Instituto de Cultura Puertorriqueña v. Rodriguez Morales, 538 F.2d 915 (1st Cir.1976); Industrial Building Materials, Inc. v. Interchemical Corp., 437 F.2d 1336 (9th Cir.1970); Himalayan Industries v. Gibson Manufacturing Co., 434 F.2d 403 (9th Cir.1970).
Should the result of the review show that lesser sanctions were available, and the court is left with the impression that these lesser sanctions would have sufficiently punished the errant party, then the court should overturn the imposition of the harsher sanctions.
Now, we consider the additional, and perhaps controlling, facts.
Mr. Devault was first represented at the time the action was filed by attorney Thomas Smith of Spokane, with Everett Hofmeister being resident counsel. During the time in question, Mr. Smith developed a conflict of interest and had filed a motion to withdraw as attorney, which motion was actually heard and granted on the day of the hearing on motion for imposition of sanctions. Defense counsel did not object to Smith’s withdrawal because he understood Hofmeister would assume the position as lead counsel.
However, Mr. Hofmeister was not in a position to become lead counsel and directed Devault to seek another attorney, which he was in the process of doing. Devault had been consulting with a third attorney as of the date of the hearing of the motion for sanctions.
Mr. Hofmeister had two reasons for not attending to this case. First, he was in a two week jury trial immediately prior to the hearing on this motion, and one would presume that preparation for that jury trial took some time and attention for several weeks before the trial commenced; and second Mr. Hofmeister announced his intention to withdraw from the case for reasons of health. Accordingly, there was no active chief counsel for several months immediately preceding the hearing.
In oral argument counsel for Herndon suggested two alternative sanctions: (1) the $500 costs for the motion being heard that day and (2) the imposition of costs both for that day and the previous hearings on enforcement of discovery.
On the morning of the hearing Mr. Hofmeister made the following representations in open court, offering to allow counsel to either copy the documents or take them back to Boise with him for copying:
MR. HOFMEISTER: Your Honor, the documents are quite voluminous. I gave counsel a letter stating generally what they are, and I assure the Court that if Mr. McCurdy wishes to view the documents and copy them today, they’re available to him. They’re at my office at the present time. But there are quite a number of documents, Your Honor. With regard to the expert witness, Your Honor, in response to Mr. McCurdy, Mr. Devault has been talking with another attorney, and I was not sure of what his response would be until yesterday. I might add that I’ve been in a jury trial until Tuesday, Your Honor, and — which was a handicap for me. But Mr. Devault has been talking to other counsel, and I don’t know whether they’re going to substitute for me or not. I have not received a definite response at this time. With regard to the legal expert witness, Your Honor, at the present time we do not have one. I would ask that the motion to dismiss with prejudice be denied. Mr. McCurdy can look at the documents today, and if he wants to copy them, he may do so. As long as they’re in his possession or mine, I have no objection to that. He could take them back to Boise with him if he so desires.
Mr. Hofmeister later stated:
MR. HOFMEISTER: Your Honor, may I point out one thing to the Court. I was not originally chief counsel in this matter, Mr. Smith was. I was going to be resident counsel only. A list of the documents has been furnished I believe to *5Mr. McCurdy. The documents themselves, as I say, are quite voluminous, and it’s easier to view the documents than it is to copy them because there are a tremendous number of documents, many small items, Your Honor.
Finally, the fact should be considered that the defendant is himself a member of the Bar and there is no showing that his case has been prejudiced by the delay. In my twenty-three years of trial experience I have never seen the ultimate sanction of dismissal imposed. It would appear to be particularly improper where it is a member of the Bar being protected by that sanction, especially where the Court has made no attempt to apply lesser sanctions and there is no showing that the client was guilty of any bad faith.
The trial judge was undoubtedly influenced by his feeling that there is a weak case against Mr. Herndon, the court stating:
“As counsel knows, and as probably Mr. Devault knows now, I set forth in an opinion last year on a Motion for Summary Judgment that I viewed this case to be quite a weak one against Mr. Herndon, and, because of the requirements of ruling on a Motion for Summary Judgment, and because I felt I should give every opportunity to Mr. Devault to be able to present his case, weak as I thought it was, I denied the Motion for Summary Judgment and permitted this thing to go forward to this point.”
If the case were weak, certainly upon completion of discovery the motion for summary judgment could be renewed. If summary judgment would not be granted, then the parties would be entitled to their day in court.
In short, we see here a gross abuse of the sanction provisions of Rule 37, with a total lack of consideration or use of the lesser sanctions provided by that rule, which circumstance requires a reversal under the authority of the cases cited at the opening of this opinion,
BISTLINE, J., concurs.