714 F.2d 1255 (5th Cir. 1983), 82-2230, McCuin v. Texas Power & Light Co.

Docket Nº:82-2230, 83-2115.
Citation:714 F.2d 1255
Party Name:Tilmon McCUIN, Willie Joe McCullough, Gary Don Robertson, et al., Plaintiffs-Appellees, Equal Employment Opportunity Commission, Intervenor-Appellee, v. TEXAS POWER & LIGHT CO., Etc., Defendant-Appellant. James Edmond DOW, et al., Plaintiffs-Appellees, v. CITY OF TYLER, Texas, Defendant-Appellant.
Case Date:September 19, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1255

714 F.2d 1255 (5th Cir. 1983)

Tilmon McCUIN, Willie Joe McCullough, Gary Don Robertson, et

al., Plaintiffs-Appellees,

Equal Employment Opportunity Commission, Intervenor-Appellee,


TEXAS POWER & LIGHT CO., Etc., Defendant-Appellant.

James Edmond DOW, et al., Plaintiffs-Appellees,


CITY OF TYLER, Texas, Defendant-Appellant.

Nos. 82-2230, 83-2115.

United States Court of Appeals, Fifth Circuit

September 19, 1983

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[Copyrighted Material Omitted]

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Charles H. Clark, Tyler, Tex., for defendant-appellant in No. 83-2115.

Mike Patterson, Richard Grainger, Tyler, Tex., for James Edmond Dow, et al.

Burford & Rayburn, Catherine A. Gerhauser, John F. McCarthy, Jr., J. Dan Bohannan, Dallas, Tex., for defendant-appellant in No. 82-2230.

Daves & McCabe, Larry R. Daves, Nell Hahn, Tyler, Tex., for plaintiffs-appellees in No. 82-2230.

Kenneth J. Burchfiel, E.E.O.C., Washington, D.C., for intervenor-appellee.

Appeals from the United States District Court for the Eastern District of Texas.

Before RUBIN and TATE, Circuit Judges, and STAGG[*], District Judge.

ALVIN B. RUBIN, Circuit Judge:

The right to counsel, safeguarded by the constitutional guarantee of due process of law, includes the right to choose the lawyer who will provide that representation. The defendants in each of these cases employed the brother-in-law of the judge before whom the case was pending. That judge then assigned the case to another judge, who found that in each case, the defendant had engaged the judge's relative as a strategem in order to disqualify the judge and that the employment was a sham. We hold that the judge to whom each case was initially assigned was required to disqualify himself as soon as he became aware that his brother-in-law had been enrolled as counsel. He, therefore, should not have taken any further action in either case, and the reassignment order was improper. Accordingly, we remand the cases for reassignment in an appropriate manner.

Because the motion to disqualify the lawyer will be pending on remand, and because it has been fully briefed, we address the merits to provide guidance to the district judge. We consider a litigant's right to be represented by counsel of his choice, the lawyer's professional obligation expressed in the Code of Professional Responsibility, and the need to preserve the integrity and efficiency of the judicial system. We conclude that, if the district court should find in either case that the sole or primary motive for retaining the relative of the original judge was to disqualify that judge, the lawyer must be disqualified.

I. Facts

  1. No. 82-2330, McCuin v. Texas Power & Light Co. 1

    In 1975, Tilmon McCuin filed a class action in the Sherman Division of the Eastern District of Texas, alleging that Texas Power discriminates against black employees. The case was automatically assigned to Chief Judge William Wayne Justice, who at that time was the only judge in the Eastern District assigned to the Sherman Division. The Eastern District has several other divisions: Beaumont, Tyler, Marshall, Paris,

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    Texarkana, and Lufkin. Because Texas Power does business in forty-eight counties in northeastern Texas, it might have been sued on this claim in any division of the Eastern District. The district court intimated that the plaintiffs may have chosen to sue in the Sherman Division because cases in that division were assigned only to Chief Judge Justice and because they may have thought he would be more favorably disposed to their cause than other judges. 2

    The case proceeded slowly. In 1978, the plaintiffs filed their sixth amended complaint alleging for the first time that Texas Power's employment practices also discriminate against females. At this stage, the Equal Employment Opportunity Commission was permitted to intervene. The plaintiffs had moved for class certification in 1975, but no certification hearing was held until 1980, by which time a considerable amount of discovery had taken place. Chief Judge Justice granted the motion to certify a class of plaintiffs in September, 1981.

    Two months later, in November 1981, more than six years after suit had been filed, Texas Power requested that the Clerk add as co-counsel an additional lawyer, J. Mike Rowan, who is the brother of Chief Judge Justice's wife. The plaintiffs then moved to disqualify Mr. Rowan as counsel and for the "limited recusal" of Chief Judge Justice for the purpose of ruling on its motion. Chief Judge Justice signed an order assigning the entire case to Judge Robert Parker "for such action as may be required."

    The local rules contain no provision for reassignment of cases if a judge is disqualified. Two judges, including Judge Parker, sit in the Beaumont Division. Chief Judge Justice and Judge William M. Steger are now, and were in 1981, assigned to both the Tyler and Sherman Divisions.

    After a hearing, Judge Parker found that Texas Power had "intentionally created a conflict under the [disqualification] statute, and now seeks to benefit from the statute's protection." 538 F.Supp. at 314. He noted that, although Texas Power had employed Rowan on a retainer for almost a decade, the case had been pending for six years before it sought to associate him in the litigation. He added: "[Rowan] has no reputation for expertise in class actions or employment discrimination law, and virtually none in litigation. His primary qualification as a trial lawyer arose with the enactment of amended [28 U.S.C.] section 455, and consists of his ability, up until now, to assist litigants in removing themselves from Judge Justice's purview." Id. He noted that, in a case tried before him on the same day as the hearing in this case, Chief Judge Justice had recused himself after Rowan was associated and Rowan had thereafter made no appearance in the proceeding. He took judicial notice that the City of Tyler had associated Rowan in the Dow case, which is companion to McCuin in this appeal, and concluded: "The practice is fast becoming epidemic." Id. He characterized employment of Rowan as a "ploy" and added, "[I]t suffices to remark that it is most certainly a sham." Id.

    He then concluded: "A litigant should not be permitted to utilize a disqualification issue as part of his trial strategy." Id. (quoting Potashnick v. Port City Construction Co., 609 F.2d 1101, 1115 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980)). He disqualified Rowan, ordered the removal of any documents on file that are "the product of [his] handiwork," ruled inadmissible at trial "any discovery or other work that Mr. Rowan has prepared for the case," and required Rowan to return any fees Texas Power had paid to him. He also ordered the case "returned to Judge Justice's court for further proceedings."

    Texas Power challenges these findings of fact as clearly erroneous. See Fed.R.Civ.P. 52(a). Because we conclude that Chief Judge Justice should have taken no action

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    in the case, even to allot it to another judge, after Rowan enrolled as counsel, we do not assess the findings.

  2. No. 83-2115, Dow v. City of Tyler

    Dow and 18 other plaintiffs each filed separate suits against the City of Tyler on February 23, 1982. Each suit alleged that the city had violated the plaintiff's civil rights during a lengthy undercover drug operation carried out in 1978 and 1979. All of the suits were filed in the Tyler Division. The cases were, in accordance with local rule, assigned by random draw. Twelve were assigned to Chief Judge Justice and seven were assigned to Judge Steger.

    Represented by attorney Charles H. Clark, the City filed its answer in all 19 cases on March 9, 1982. Two weeks later the City associated Rowan as additional counsel in all of the cases. The City later filed a motion to consolidate all of the cases with the first case filed. Because the first of the 19 suits had been assigned to Judge Steger, all of the cases would be heard in his court if the motion were granted. Unlike many other districts, however, the Eastern District has no rule that provides for the assignment of all related cases to a single judge. The plaintiffs opposed the consolidation motion and it has not yet been decided. The plaintiffs filed a motion to disqualify Rowan and Chief Judge Justice referred all of the cases assigned to him to Judge Parker "for such action as may be required." After holding an evidentiary hearing, Judge Parker granted the motion for the same reasons he gave in McCuin.

    II. Judicial Disqualification

    Before Congress amended the judicial disqualification statute in 1974, a judge's kinship to a lawyer appearing before him did not automatically require the judge's recusal. 3 The statute provided simply that the judge was to disqualify himself if the relationship would "render it improper, in his opinion, for him to sit...." 4 In a report recommending a change in the statute, a House of Representatives Committee criticized this standard because it "made the judge himself the sole decider of ... the relationships which would be improper and lead to disqualification." 5 Congress, therefore, amended the statute to mandate the judge's disqualification in cases in which a person related within the third degree to the judge or the judge's spouse is acting as a lawyer or has a substantial interest in the outcome of the proceedings. 6

    The legislative history of the amendment to § 455 indicates that Congress' purpose was to adopt a categorical rule that would be self-enforcing. 7 In Potashnick,

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    e noted that § 455 makes it the judge's duty to disqualify himself as soon as he is aware that the grounds exist. The mandate is made inexorable by an express prohibition against waiver. 8 The...

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