U.S. District Judge John McBryde of Fort Worth, Texas has issued a massive opinion holding attorneys S. Tracy Long, Melvin K. Silverman, Joseph F. Cleveland, Jr., and John P. Gillig liable for ethical breaches and recommending criminal prosecution after they challenged his impartiality and temperament in a case. The lengthy opinion below details the case against the lawyers in litigation over golf club patents. What is most striking about the case is the decision of the judge to conduct the inquiry himself — rejecting obvious concerns over his own conflict of interest in eliciting testimony on his own conduct. [See the update below]

The case involves a golf patent case referred to as Triple Tee and two documents:

The two sets of documents that led to these disciplinary and sanction proceedings were filed in Triple Tee II. The first set was filed in February 2009 by Gillig and Triple Tee, acting through Cleveland and Silverman, and the second in June 2010 by Gillig and Triple Tee, acting through Silverman. Gillig provided his declaration, which bears a signature date of January 22, 2009, as a part of the first set. Long provided his declaration, which bears a signature date of June 14, 2010, as a part of the second set. Each set contained recitations by the declarant concerning events occurring during the court’s handling of Triple Tee I. They were filed for the purpose of preventing the undersigned from presiding over Triple Tee II–the first set in an attempt to persuade Judge Means not to reassign Triple Tee II to the undersigned’s docket and the second set to create a record to support a contention by Gillig and Triple Tee that the undersigned was disqualified from presiding over Triple Tee II.

McBryde insists that the declaration contains false statements about his conduct in the case, including the statement that “[p]laintiff Gillig believes that Judge McBryde has exhibited personal and extra- judicial bias and prejudice against him.” The attorneys filed a declaration from Gillig that included the following allegations:

Among the statements Gillig declared under penalty of perjury to be true and correct were the
following:
3. In my opinion, Judge McBryde has exhibited personal and extra-judicial bias and prejudice against me, as is evidenced by the foregoing.
4. At a status conference which I believed occurred July 15, 2004, during the predecessor proceeding, I was present at a conference in offices of Judge McBryde’s and, in particular, at the Federal Courthouse at Fort Worth. The room appeared substantially as I have sketched in Exh. A herewith. As may be noted therefrom, I was seated toward the rear of the room in the guest or “non-attorney” area while my attorneys Tracy Long, Jon Suder another lawyer from the Suder firm were seated at the right of the conference table, while the lead attorney for Nike, Chris Renk, sat substantially opposite to Tracy Long at the left side of the table. The other Nike lawyers also sat at the left of the table.
5. Before the start of the status conference, Judge McBryde walked from a hallway into the room through the indicated doorway at the back of the room and, while standing at Location 1, turned to me and said “You cannot afford to be in this court” and then, as he walked around the conference room along the path showed by the dotted lines in my sketch of Exh. A, stopped at Location 2 and asked my attorneys if they had taken the case on a contingency basis and that, if so, they “should not expect to get a house out of this case.” After I heard him say this, Judge McBryde continued this line of comment as he walked from Location 2 to Location 3 in the conference room and, as he was starting to take his seat at Location 3, I heard him remark that the case would “never make it to his courtroom.”
6. At that time in 2004 I did not understand what Judge McBryde meant, given that I had never met him before and had no knowledge of his record on the bench.
7. At a hearing that I believed occurred on July 6, 2005, Judge McBryde threatened to hold my lawyers and myself in contempt if we did not submit a revised document, in language meeting with his approval, by the afternoon of the following day.
8. On a later occasion, also during the predecessor proceeding, which I believe was at a pretrial conference held July 5,2007, Judge McBryde remarked upon the opinion of the Fifth Circuit Court of Appeals [DE 199/200] and said, in so many words, that he was less than happy with the opinion of the Circuit and was still looking for a way to dispose of this case, apart from trying it, but that he had not yet found one.
9. Shortly thereafter, on July 18, 2007, I testified as corporate representative for TTG relative to the issue of standing. At said hearing, and after Judge McBryde had asked me several questions relative to the formation of TTG and the manner of my asserted assignment of trade secrets to TTG, Judge McBryde briefly left the courtroom and then, upon returning, but before reaching the bench, told me that he did not believe anything that I had said.

After the court itself held an evidentiary hearing, it found “that virtually everything said in paragraphs 3-5 and 7-9 of Gillig’s declaration is false.”

That hearing, however, created the uncomfortable scene of a judge questioning lawyers about their allegations about himself. Under 28 U.S.C. § 455,

“Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding

In this case, the judge actively questions the lawyers about his own and their recollection of events. They in turn recount facts to the judge of his own conduct. Here is one such exchange:

Gillig testified:
THE WITNESS:
Another time you left the courtroom and you came barging back into the courtroom yelling I don’t believe anything you say. That was another reason I decided that we should recuse you because you said that you don’t believe anything I say.
Well, that means you don’t believe anything I say right now because anything is anything.
THE COURT: Are you saying that happened during the first Triple Tee case?
THE WITNESS: It was one of the times — the only time we actually got physically into your courtroom, and you walked out the door over there, and then after you came right back in afterwards and you said, I don’t believe anything you say, and then you went right back out the door and that was that.

The attorneys divided with some attorneys accusing the others of failing to reveal information to them. The result was a record that the court submitted to the bar for action.

The kicker comes at the end:

The court directs the clerk to send a copy of this memorandum opinion and order to the United States Attorney for the Northern District of Texas with an appropriate explanatory letter of transmittal, and the court hereby requests that he initiate, and prosecute, Gillig, Long, and Silverman for any criminal action that might be appropriate under the circumstances.

Here is the full opinion: McBrydeOrder

McBryde has insisted that some of the statements that he made to Gillig were jokes. Yet, he decided not to let another judge decide such questions.

As noted by the ABA Journal, McBryde has previously been cited for intemperate remarks. As discussed in a 1996, a New York Times article , the Judge was accused of fighting to keep two cases from being removed from this docket. Moreover, in 1997, the Fifth Circuit cited him for “intemperate, abusive and intimidating” conduct.

The testimony of the lawyers does show cause for concern over the filing of the documents. Indeed, they appear to turn on each other as in this testimony from Long:

THE COURT: Mr. Long, what did you do when you discovered that you had been tricked into signing that declaration by them not telling you about the declarations the Nike lawyers had filed?

THE WITNESS: Well, I found out about that today as I’m sitting in this courtroom. Last night, I was reading Mr. Cleveland’s declaration, which I had been provided. And I don’t know if Your Honor could tell, I sat back there having heart palpitations because I was so angry.
I mean, I would formally like to withdraw that declaration in total today, if I can.

THE COURT: Who do you think tricked you into signing your declaration?

THE WITNESS: Mr. Silverman and Mr. Gillig, by not giving me the entire history and the entire, you know, declarations that were done by Nike. I think that was a key bit, piece of evidence.

However, McBryde’s own participation on the eliciting of the testimony undermines its use. It would have been far more advisable to have another judge conduct the hearing.

UPDATE:

It appears the Fifth Circuit agreed with our take on this case. On April 4, 2011, the Fifth Circuit entered an order vacating and remanding Judge McBryde’s January 5, 2011 order, finding that “[u]nder the particular and peculiar facts of this case, . . . the district judge was disqualified from presiding over the sanctions hearing and entering the January Order.” In re Cleveland, 420 Fed. Appx. 435 (5th Cir. 2011) (per curiam). The Fifth Circuit further instructed that the case be assigned to “a different judge to consider the question of sanctions . . . .” Id. On remand, the case was assigned out of the district and Judge David Hittner, Senior United States District Judge for the Southern District of Texas ruled for the lawyers. Notably, Judge Hittner observed that “[a]lmost all of the factors relevant in determining the reasonableness of the lawyer’s factual inquiry weigh in favor of Cleveland.”

Source: ABA

Jonathan Turley