Violation of Texas Lawyer’s Creed

Author: LegalEase Solutions 

The Texas Lawyer’s Creed–A Mandate for Professionalism, reprinted in TEXAS RULES OF COURT 865, 865 (West 2012) serves as an important reminder that the conduct of lawyers “should be characterized at all times by honesty, candor, and fairness.”[1]  It states that each attorney owes to their clients “allegiance, learning, skill and industry,” and they should be “courteous, civil and prompt in oral and written communications.”  In addition, the Creed acknowledges that a lawyer “owes to the administration of justice personal dignity, integrity, and independence and should always adhere to the highest principles of professionalism.”[2]

In Section IV of the Texas Lawyer’s Creed, the lawyer steadfastly pledges “I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.” In re Lerma, 144 S.W.3d 21, 27 (Tex. App. 2004).  Factual misrepresentation not only violates a lawyer’s duty to the appellate court but subjects offenders to sanctions. Id.

Motion for Sanctions:

Trial courts have inherent power to impose sanctions for bad faith abuse of the judicial process even when the targeted conduct is not expressly covered by a rule or statute. Ezeoke v. Tracy, 349 S.W.3d 679, 685 (Tex. App. 2011).

The Texas Lawyer’s Creed provides “a clear directive about how lawyers are to conduct themselves in respect to the legal system, the courts, clients and other lawyers. Twist v. McAllen Nat. Bank, 248 S.W.3d 351, 365 (Tex. App. 2007).  Any deviation in a counsel’s conduct in dealing with the legal system permits a party to file a motion for sanction that permits a court to impose sanctions in the following circumstances.  Therefore, any party or the court, on its own initiative may, after notice and a reasonable opportunity to respond, impose just sanctions on a party or attorney who is not acting in good faith as indicated by any of the following:[3]

  1. filing a petition that is clearly groundless;
  2. bringing the petition solely for delay of an underlying proceeding;
  3. grossly misstating or omitting an obviously important and material fact in the petition or response; or
  4. filing an appendix or record that is clearly misleading because of the omission of obviously important and material evidence or documents.

 

Analysis of case laws:

The court has held that the Lawyer’s Creed serves as an important reminder that the conduct of lawyers “should be characterized at all times by honesty, candor, and fairness.” PNS Stores, Inc. v. Rivera, 379 S.W.3d 267 (Tex. 2012).  The courts have also held that the goals of Texas Lawyer’s Creed are aspirational and so it is not binding law but is instead a recommended code of conduct. Hart v. State, 03-02-00542-CV, 2003 WL 549273 (Tex. App. Feb. 27, 2003).

In Schlafly v. Schlafly, 33 S.W.3d 863, 873 (Tex. App. 2000), the court observed that both the Texas Lawyer’s Creed and the Texas Standards of Appellate Conduct admonish counsel against making misrepresentations to a court.  The duty of honesty and candor a lawyer owes to the appellate court includes fairly portraying the record on appeal.  Therefore, misrepresenting the facts in the record not only violates that duty but subjects offenders to sanctions.

In PNS Stores, Inc. v. Rivera, 379 S.W.3d 267 (Tex. 2012), the court found that an attorney’s violation of Lawyer’s Creed by taking default judgment without contacting owner’s known attorneys was not evidence of extrinsic fraud.  According to the court, the Lawyer’s Creed is aspirational and so it does not create new duties and obligations enforceable by the courts beyond those existing as a result of (1) the courts’ inherent powers and (2) the rules already in existence. Id.  The court further noted that a lawyer’s failure to adhere to the Texas Lawyer’s Creed may be evidence of a lack of professionalism or character. Id.

In In re Colonial Pipeline Co., the Court ordered the Relators to show cause why they should not be sanctioned for failing to disclose controlling case authority and failing to distinguish it from the case at issue. Twist v. McAllen Nat. Bank, 248 S.W.3d 351, 365 (Tex. App. 2007).  The court held that “such failure to disclose pertinent adverse authority might well be a failure of Relators to deal in good faith with this Court and a breach of professional ethics,” and the court held that such failure would likely be sanctionable under Texas Rule of Appellate Procedure 52.11(a). Id.

In Ezeoke v. Tracy, 349 S.W.3d 679, 686-87 (Tex. App. 2011), while imposing sanctions, the trial court specifically found that (1) the motion for continuance was signed in violation of Texas Civil Practice & Remedies Code Section 10.001 and contrary to the principles set forth in the Texas Lawyer’s Creed;  (2) the motion for continuance was “brought for an improper purpose,  including harassment, delay, and/or has increased the costs of this litigation; and (3) there is a direct relationship between the sanctions imposed and the offensive conduct.

In Sossi v. Willette & Guerra, 139 S.W.3d 85, 89, it was found that the Counsel acted unethically under the Texas Lawyers Creed, when “he deliberately sought a default judgment against parties he knew were represented by an attorney and who had filed an answer under the wrong cause number by mistake.” And thus the Court of Appeals imposed sanctions on attorney, for frivolous filing of appeals.

In Kuzmin v. Thermaflo, Inc., 2:07-CV-00554-TJW, 2009 WL 1421173 (E.D. Tex. May 20, 2009), it was observed that factual misrepresentations not only violate a lawyer’s duty to the appellate court but also subject offenders to sanctions.

In Clark v. Bres, 217 S.W.3d 501 (Tex. App. 2006) the trial court stated that Betty Clark had violated the Texas Rules of Civil Procedure, flaunted the Texas Lawyers Creed–A Mandate for Professionalism, and attempted to obstruct the administration of justice through improper conduct and litigation tactics.  In the sanctions order, the trial court made findings of fact and conclusions of law and ordered Betty Clark to pay $2,500.00 in sanctions and required her to attend eight hours of Continuing Legal Education in legal ethics.  The Court of Appeals while affirming the final judgment of trial court held that the trial court error, if any, in citing to the Texas Disciplinary Rules of Professional Conduct in its order sanctioning attorney for her conduct during deposition of homeowner did not result in an improper sanctions order; trial court’s inherent powers granted the court authority to sanction attorney for her conduct during deposition.

Furthermore, in Cont’l Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184 (Tex. App. 2000), Continental, in its motion, alleged that Sea–Land violated the Texas Lawyer’s Creed by taking a default judgment without providing Continental’s general counsel with notice of a default judgment hearing.  The court held that Lawyer’s creed provision requiring that a lawyer notify opposing counsel regarding his intent to take a default judgment did not trigger the court’s inherent powers, and thus was not enforceable by the courts, so as to require plaintiff that properly served defendant with citation on a sworn account to give further notice.

Here, the court stated that the order issued by the Supreme Court and the court of criminal appeals adopting the Texas Lawyer’s Creed states:

“These rules are primarily aspirational.  Compliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon re-enforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts through their inherent powers and rules already in existence.”[4]

 

In the case, the court further stated that the Texas Lawyer’s Creed is not a proper vehicle for the legal enforcement of a party’s desire to receive notice regarding the taking of a default judgment.

The Creed was adopted by the Supreme Court of Texas and the Court of Criminal Appeals as an aspiration of what a lawyer’s profession should be. Byas v. State, 906 S.W.2d 86, 87 (Tex. App. 1995).  Therefore, the Creed is not a binding law and it does not create new duties and obligations enforceable by the courts beyond those existing as a result of (1) the courts’ inherent powers and (2) the rules already in existence. In view of the above, in order for a provision of the Creed to be enforceable by the courts, the courts must act pursuant to their inherent powers or existing rules.

Conclusion:

            Texas Lawyer’s Creed is not a binding law.  It does not create new duties and obligations enforceable by the courts beyond those that exist under the court’s inherent powers and the rules already in existence, like, the Texas Civil Practice & Remedies. An appropriate motion to file in case of attorney violation of professional conduct is a motion for sanctions.