Merrell Dow Pharmaceuticals, Inc. v. Havner

On Motion FOR Reheaeing

ORDER

The motion for rehearing filed on behalf of the Havners is overruled. However, the ten- or of that motion requires that we address the conduct of Respondents’ counsel.

This is not the first time in this ease that the Havners’ counsel have engaged in less than exemplary conduct. Following the decision of the original panel of the court of appeals, which had reversed the judgment of the trial court and rendered judgment that the Havners take nothing, Robert C. Hilliard filed two briefs with the court of appeals which that court, sitting en banc, found to be “insulting, disrespectful, and unprofessional.” Merrell Dow Pharmaceuticals, Inc. v. Havner, 907 S.W.2d 565, 566 (Tex.App.—Coipus Christi 1994) (en banc) (per curiam). The court of appeals further concluded that the briefs “evidence[d] a violation of the Texas Disciplinary Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness.” Id. The court of appeals accordingly forwarded copies of those briefs to the Office of General Counsel of the State Bar of Texas pursuant to Texas Code of Judicial Conduct, Canon 3(D)(2). Id.

In assessing the appropriate response to the motion for rehearing that has now been filed by Hilliard and his co-counsel in this Court, we agree with another of our courts of appeals who recently found it necessary to address attacks on the integrity of that court:

A distinction must be drawn between respectful advocacy and judicial denigration. Although the former is entitled to a protected voice, the latter can only be condoned at the expense of the public’s confidence in the judicial process. Even were this court willing to tolerate the personal insult levied by [counsel], we are obligated to maintain the respect due this Court and the legal system we took an oath to serve.

In re Maloney, 949 S.W.2d 385, 388 (Tex.App.—San Antonio 1997, no writ) (en banc) (per curiam); see also Johnson v. Johnson, 948 S.W.2d 835, 840-41 (Tex.App.—San Antonio 1997, writ requested)1 (sanctioning counsel for disparaging remarks about the trial court and forwarding the court of appeals’ opinion to the Office of General Counsel, concluding that a substantial question had been raised about counsel’s honesty, trustworthiness, or fitness as a lawyer).

Courts possess inherent power to discipline an attorney’s behavior. “‘Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence.’ ” Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (further observing that a federal court has the power to control admission to its bar and to discipline attorneys who appear before it) (quoting Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227. (1821)); see also Public Util. Comm’n v. Cofer, 754 S.W.2d 121, 124 (Tex.1988); Johnson, 948 S.W.2d at 840-41.

The Disciplinary Rules governing the conduct of a lawyer provide:

*733A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.

Tex. DISCIPLINARY R. PROf’l Conduct preamble ¶ 4, reprinted in Tex. Gov’t Code, tit. 2, subtit. G app. A (Vernon Supp.1997) (Tex. State BAR R. art. X, § 9).

Rule 8.02(a) of the Disciplinary Rules specifically states:

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory official or public legal officer, or of a candidate for election or appointment to judicial or legal office.

Id. Rule 8.02(a).

The Legislature has also provided a mechanism for courts to sanction counsel who file pleadings presented for an improper purpose or to harass. Tex. Civ. PRAC. & Rem.Code §§ 10.001—10.005. In addition, one of the lawyers for the Havners, Barry Nace, is a non-resident attorney. His appearance in Texas courts is subject to the Rules Governing Admission to the Bar, including Rule XIX.

The specific portions of the “Respondents’ Motion for Rehearing” filed in this Court that raise particular concerns are the “Statement of the Case for Rehearing” (pages 1-5), the “Brief of the Argument” (pages 8,14, and 16), and the “Prayer for Relief’ (pages 19-20). Counsel for Respondents Robert C. Hil-liard of the firm of Hilliard & Muñoz, Barry J. Nace of the firm of Paulson, Nace, Nor-wind & Sellinger, and Rebecca E. Hamilton of the firm of White, White & Hamilton, P.C., are hereby afforded the opportunity to respond as to why the Court should not

1) refer each of them to the appropriate disciplinary authorities;
2) prohibit attorney Nace from practicing in Texas courts; and
3) impose monetary penalties as sanctions.

Any response must be filed in this Court by 5:00 p.m., Monday, November 24, 1997.

Done at the City of Austin, this 13th day of November, 1997.

BAKER, J., not sitting.

. An application for writ of error is pending in this Court, and we express no opinion on the merits of that appeal.