DALLAS (CN) – A Texas appeals court reversed sanctions against an attorney who never committed the offense with which he was charged: accusing opposing counsel of suborning perjury.
Oscar Rey Rodriguez, a partner with the Dallas office of Fulbright & Jaworski, represents PopCap Games International in a contract dispute with another video game company, MumboJumbo.
“There is no evidence to support the trial court’s finding that Rodriguez accused counsel for MumboJumbo in open court of knowingly suborning perjury,” Judge Joseph Morris wrote for the Fifth District Court of Appeals.
Weeks after jury trial for the suit concluded, MumboJumbo filed a motion for sanctions against PopCap and its attorneys alleging, among other things, that PopCap had made baseless allegations against MumboJumbo in both written motions and in open court. MumboJumbo said it was being wrongfully accused of concealing evidence and suborning perjury, and that these false accusations were sanctionable.
After a hearing on the motion, the trial court partly granted the motion, finding that PopCap counsel had made a wrongful accusation against MumboJumbo of suborning perjury.
“This accusation was without factual basis and was made in bad faith,” the trial court said, ordering Rodriguez to place an advertisement in a legal periodical apologizing for his conduct.
Instead, Rodriguez convinced a three-judge appellate panel to reverse. .
A trial court abuses its discretion if it bases a sanction order on a “clearly erroneous assessment of the evidence,” Morris explained Thursday.
“Rodriguez contends there is no evidence to support the trial court’s finding that he accused counsel for MumboJumbo in open court of knowingly suborning perjury,” Morris wrote. “We note that MumboJumbo’s motion for sanctions did not allege that Rodriguez had accused MumboJumbo’s counsel in open court of suborning perjury. The motion for sanctions alleged only that PopCap’s counsel had made such an accusation in a written motion. Accordingly, the alleged conduct made the basis of the trial court’s sanction order was not the subject of MumboJumbo’s motion for sanctions.”
The judges also pointed out that the crime-fraud exception argument Rodriguez had been making at the hearing does not, by itself, implicate the attorneys in any wrongdoing. Although the crime-fraud exception involves communications between a party and its attorneys, Rodriguez went out of his way to clarify that PopCap was seeking to apply the exception based only on the conduct of the party to the suit.
“And, Your Honor, so the record is clear, we mean to cast no aspersions on counsel,” Rodriguez said at the hearing. “This is a party crime-fraud challenge. We certainly cast no aspersions on any of the counsel or the lawyers.”
The only conduct Rodriguez attributed to MumboJumbo’s counsel was that they had “not sought to clarify or pull back the testimony” at issue, according to the ruling.
Although this statement possibly implies that MumboJumbo’s counsel knew or should have known their clients committed perjury after the allegedly false testimony was given, the failure to withdraw or correct false testimony is not, as a matter of law, the subornation of perjury.
Ultimately, the trial court’s findings reflect both an erroneous assessment of the evidence and a misapplication of the law on subornation of perjury, the court found.