FEDERAL COURT ETHICS UPDATE

1. David S. Coale • Counsel on Call • April 22, 2013 FEDERAL COURT ETHICS UPDATE • LynnTillotsonPinkerCox • 600Camp.com

2. Pleading • LynnTillotsonPinkerCox • 600Camp.com

3. Raylon LLC v. Complus Data, 700 F.3d 1361 (Fed. Cir. 2012) “The Fifth Circuit ‘has been emphatic’ that the Rule 11 analysis is a strictly objective inquiry and ‘expressly rejected any inquiries into the motivation behind a filing.’” • LynnTillotsonPinkerCox • 600Camp.com

4. Texas Medical Providers v. Lakey, No. 12-50291 (Feb. 26, 2013, unpub.) “Lack of merit does not equate to frivolity.” • LynnTillotsonPinkerCox • 600Camp.com

5. Branch v. Cemex, Inc., No. 12-20472 (March 26, 2013, unpub.) “We remind counsel that ‘zealous’ is derived from ‘Zealots,’ the sect that, when besieged by the Roman Legions at Masada, took the extreme action of slaying their own families and then committing suicide rather than surrendering or fighting a losing battle.” • LynnTillotsonPinkerCox • 600Camp.com

6. Arbitration • LynnTillotsonPinkerCox • 600Camp.com

7. Positive Software v. New Century Mortgage, 619 F.3d 458 (5th Cir. 2010) “In sum, the district court lacked inherent authority to sanction [Lawyer] for her conduct during arbitration. That conduct was neither before the district court nor in direct defiance of its orders. If inherent authority were expanded to cover [Lawyer’s] conduct, there would be nothing to prevent courts from inserting themselves into the thicket of arbitrable issues—precisely where they do not belong.” • LynnTillotsonPinkerCox • 600Camp.com

8. Injunctions • 600Camp.com • LynnTillotsonPinkerCox

9. Interior Department was: “immediately prohibited from enforcing the Moratorium, entitled ‘Suspension of Outer Continental Shelf (OCS) Drilling of New Deepwater Wells’ dated May 28, 2010, and NTL No. 2010-N04 seeking implementation of the Moratorium, as applied to all drilling on the OCS in water at depths greater than 500 feet.” Hornbeck Offshore Services v. Salazar, No. 11-30936 (revised April 9, 2013) • LynnTillotsonPinkerCox • 600Camp.com

10. Inconsistent Testimony • LynnTillotsonPinkerCox • 600Camp.com

11. Did you stop working as a contract welder . . . because of this accident, or did you stop working . . . for any other reason? • Because of the accident. . . . • What did you tell Frank [about why you quit]? • ‘Frank, man, this guy calling me all kind of [racial epithets] . . . .’ • Did any other reason play a role in why you decided to quit? • Oh, no, ma’am. Brown v. Oil States,664 F.3d 71 (5th Cir. 2011) • LynnTillotsonPinkerCox • 600Camp.com

12. “Although clients do sometimes make substantive missteps in deposition testimony which may be corrected with an errata sheet, attorneys may not use an errata sheet to push a case to trial where the client no longer adheres to the allegations supporting the claim.” Gonzalez v. Fresenius Medical Care,689 F.3d 470 (5th Cir. 2012) • LynnTillotsonPinkerCox • 600Camp.com

13. Now, you previously pled the Fifth in this case. You’re aware of that? • Yes, sir. • And you have withdrawn, I take it, your plea to the Fifth Amendment right? • Looks that way. Davis-Lynch, Inc. v. Moreno,667 F.3d 539 (5th Cir. 2012) • LynnTillotsonPinkerCox • 600Camp.com

14. Conflicts • LynnTillotsonPinkerCox • 600Camp.com

15. “The mere observation that coverage issues may turn on facts developed in the litigation does not necessarily entail that a conflict of interest will arise if the facts that could be developed in the underlying litigation are the same facts upon which coverage depends.” Downhole Navigator LLC v. Nautilus Insurance Co.,686 F.3d 325 (5th Cir. 2012) • LynnTillotsonPinkerCox • 600Camp.com

16. “Oops, forgot to file the brief.” • LynnTillotsonPinkerCox • 600Camp.com

17. Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794 (5th Cir. 2012) “Although the district court had discretion to impose procedural rules, such as its page limitation on supplemental briefs, ‘we have not approved the automatic grant, upon failure to comply with such rules, of motions that are dispositive of the litigation.’. . .The record does not reflect that [Plaintiff] violated multiple court orders or otherwise engaged in egregious obstructionist conduct, and the district court did not consider whether lesser sanctions than full dismissal would be appropriate and effective.” • LynnTillotsonPinkerCox • 600Camp.com

18. Public Statements • LynnTillotsonPinkerCox • 600Camp.com

19. Texas Medical Providers v. Lakey, No. 12-50291 (Feb. 26, 2013, unpub.) “[I]f courts treated as a willful abuse of process every self-serving statement of counsel at the expense of a judge or judges, there would be no end to sanctions motions.” • LynnTillotsonPinkerCox • 600Camp.com

20. Lawyer wrote: “In the Louisiana action, Mr. Lehman ‘loaned’ a complete stranger, Chadwick Harris, a disgruntled General Manager of my client, United Truck Group, $2,000 for what the witness believed was his favorable testimony and access to confidential information. When Mr. Harris testified in a deposition unfavorably to Mr. Lehman, Mr. Lehman, on the record, demanded his $2,000 back.” Lehman v. Holleman,No. 12-60814 (5th Cir. April 15, 2013) • LynnTillotsonPinkerCox • 600Camp.com

21. “LADB, as ‘the party seeking to uphold a restriction on commercial speech[,] carries the burden of justifying it.’ Its burden is a ‘heavy’ one, that cannot be satisfied ‘by mere speculation or conjecture.’” Public Citizen v. Louisiana Attorney Disciplinary Board,632 F.3d 212 (5th Cir. 2011) • LynnTillotsonPinkerCox • 600Camp.com

22. texasworkerscomplaw.com Gibson v. Texas Department of Insurance,___ F.3d ___ (5th Cir. 2012) • LynnTillotsonPinkerCox • 600Camp.com

23. David S. Coale • Counsel on Call • April 22, 2013 FEDERAL COURT ETHICS UPDATE • LynnTillotsonPinkerCox • 600Camp.com