Opinion
No. 05-05-01080-CV
Opinion issued September 13, 2005.
Original Proceeding from the County Court at Law No. 3, Dallas County, Texas, Trial Court Cause No. cc-05-05564-C.
Writ of Mandamus Dismissed.
Before Justices MOSELEY, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
On August 9, 2005, relator Michael S. Harris, M.D. filed a petition for writ of mandamus and motion for emergency relief. Relator complained the trial judge abused her discretion in denying his motion to quash a deposition. On August 16, 2005, relator filed a letter with a copy of the trial judge's August 11, 2005 order vacating the August 9, 2005 order denying the motion to quash the indictment. Therefore, the petition for writ of mandamus is moot.
A copy of the trial court's August 9, 2005 order was not included in the record accompanying the petition for writ of mandamus. We only know the order denying the motion to quash the indictment was signed on August 9, 2005 because the August 11, 2005 order states that.
What is not moot, however, is the question of the conduct of relator's counsel in preparing the petition for writ of mandamus. Specifically, we question counsel's candor in the manner in which relator's claim was presented to the Court.
In the petition, counsel asserted the trial judge erred in requiring relator to be deposed before real party Shirley Jones had filed her expert report. See Tex. Civ. Prac. Rem. Code Ann. § 74.351 (Vernon 2005). Counsel included a copy of a motion to quash the deposition as Tab 4 in the record accompanying the petition. That motion raises the lack of the expert report as the ground for quashing the deposition. The copy of the motion at Tab 4 does not bear a file stamp, but the certificate of service is dated August 8, 2005.
However, the reporter's record filed with the petition reflects that the hearing on relator's motion to quash the deposition was held on August 4, 2005, four days before the date shown on the motion contained at Tab 4. Additionally, although relator's counsel argued the lack of the expert report as the ground for quashing the deposition at the August 4 hearing, it is clear from statements made by both real party's counsel and the trial judge that the lack of the expert report was not raised in the motion to quash being heard by the judge on August 4.
Because it appeared relator's counsel did not file all of the documents relevant to the mandamus proceeding, we ordered the county clerk to file a clerk's record containing a copy of all motions filed in the case below. The clerk's record contains copies of motions filed by both real party and relator. However, the only motion seeking to quash the deposition filed by relator before the August 4, 2005 hearing was filed on June 28, 2005. The June 28 motion does not raise the lack of the expert report as the basis for quashing the deposition, it only states that written discovery was not yet complete. According to the clerk's record, the motion relator's counsel included at Tab 4 with the petition was filed on August 9, 2005, five days after the date of the hearing.
Counsel should be allowed great latitude in presenting argument to the Court. See In re Maloney, 949 S.W.2d 385, 388 (Tex.App.-San Antonio 1997) (en banc) (per curiam). However, that latitude is not unrestricted. See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 732 (Tex. 1997) (order on mot. for reh'g); In re Maloney, 949 S.W.2d at 388. Counsel has a duty of candor to this Court. See Tex. Disciplinary R. Prof. Conduct § 3.03, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9). "A lawyer shall not knowingly make a false statement of material fact . . . to a tribunal." Id. § 3.03(a)(1).
It appears from the manner in which counsel presented the petition for writ of mandamus to this Court that counsel not only violated her duty of candor to this Court, but may have deliberately misrepresented the proceedings to obtain mandamus relief. Such activity demeans the integrity of the judicial system and violates the rules of professional conduct.
Courts possess inherent power to discipline an attorney's behavior. Merrell Dow Pharm., Inc., 953 S.W.2d at 732. The Legislature has also provided a mechanism for courts to sanction counsel who file pleadings presented for an improper purpose or to harass. See id. (citing Tex. Civ. Prac. Rem. Code Ann. § 10.001-.005 (Vernon 2002)).
Accordingly, we ORDER Wendy H. Hermes, counsel for relator Michael S. Harris, M.D., to file a response, by 5:00 p.m., Friday, September 23, 2005, setting forth why, in light of the conduct set out above, this Court should not:
(1) refer her to the State Bar of Texas disciplinary authority; and
(2) impose a monetary penalty as a sanction.
The Court will maintain jurisdiction over the proceedings as they relate to the conduct of Ms. Hermes.
We DIRECT the Clerk to send copies of this opinion, by both facsimile transmission and by certified mail, to Wendy Hermes, Berry Randall, L.L.P., Market-Ross Place, 1701 Market Street, Suite 320, LB-41, Dallas, Texas 75202. We DISMISS the petition for writ of mandamus as moot.