1

A voluntary dismissal does not expunge a violation by counsel. Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 395 (1990). If mere dismissal of the case could purge

sanctionable conduct, there would be no incentive to “stop, think and investigate more carefully

before serving and filing papers.” Id. (quoting Advisory Comm. Notes on Fed. R. Civ. P. 11

(1993 Amend.)).

Although Texas Tech University filed a Notice of Withdrawal of its previously filed

Motion for Sanctions because the Settlement Agreement entered into between the parties

required it to do so, the Court takes judicial notice of the documents cited in the Brief in Support

of the Motion for Sanctions. Those documents were not part of the withdrawn motion but

instead were included in an appendix related to the Motion to Recuse. In addition there has been

ample press and media coverage in which Stephen Spiegelberg and counsel Barnes have made

statements regarding the matters set forth herein.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

TEXAS TECH UNIVERSITY, )

)

Plaintiff/Counter-Defendant, )

)

v. )

)

JOHN SPIEGELBERG, Individually and ) Civil Action No. 5:05-CV-192-C

d/b/a RED RAIDER OUTFITTER, ) (Consolidated with

) Civil Action No. 5:05-CV-276-C)

Defendant/Counter-Plaintiff. ) ECF

ORDER

The parties indicated that they have reached a settlement in the case. Thus, the dispute

between the parties is no longer before the Court. Although the settlement resolves the dispute

between the parties, it does not obviate the need for further action on what can be described as a

matter of upmost importance to this Court, that is, the conduct of attorneys admitted to practice

before this Court and the perception of the impartiality of this Court.1

 Justice requires that a

 

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2

The record in this case provides adequate background for this issue and the Court will

not reiterate what has already been discussed in the prior adverse ruling and the order on the

Motion to Recuse. 

3

The Court is aware that other federal judges have been entangled in issues involving free

tickets to sporting events from universities that appeared as parties in actions before those

judges. It may be that RRO, Spiegelberg, and counsel Barnes viewed this as a hopeful

circumstance in their case before this Court in an attempt to get a adverse summary judgment

ruling reversed. Or it may be that counsel Barnes was seeking any avenue, no matter how

unlikely, to get the adverse ruling reversed because of his failure to properly direct the Court (as

required by precedent and rules of procedure) to summary judgment evidence that would create a

genuine issue of material fact on the damage amount, which failure resulted in a ruling adverse

to his client involving a large damage amount.

2

judge be fair and unbiased in carrying out his or her duties and that the public maintain a

confidence that such will be the reality when a case is before a judge. 

After receiving an adverse ruling, Defendant/Counter-Plaintiff, John Spiegelberg,

Individually and d/b/a Red Raider Outfitter (“RRO”), filed a Motion to Recuse.2

 “In the wrong

hands, a disqualification motion is a procedural weapon to harass opponents and delay

proceedings.” United States v. Microsoft Corp., 253 F.3d 34, 108 (D.C. Cir. 2001). “If

supported only by rumor, speculation, or innuendo, it is also a means to tarnish the reputation of

a federal judge.” Id. (emphasis added). It appears from the record that RRO, Stephen

Spiegelberg, and counsel Stacey Barnes (“Barnes”) have attempted to either tarnish the

reputation of a sitting United States District Judge or gain a tactical/procedural advantage by

publishing baseless and false statements in a Motion to Recuse filed herein. Specifically, they

falsely stated that this judge was biased in favor of Plaintiff/Counter-Defendant, Texas Tech

University (“Tech”), for receiving gifts from Tech in the form of season tickets to sporting

events and preferred reserved parking to sporting events.3 Filed in support of a motion to recuse,

 

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Plaintiff provided evidentiary support refuting Spiegelberg’s statements in its Opposition

to Motion to Recuse [Doc. #180], and the Court entered an Order dated December 7, 2006 [Doc.

# 184] in which those factual assertions were unequivocally denied as untrue. (Order dated

Dec. 7, 2006 at 11, n.8.)

5

Although the Motion to Recuse did not contain the certificate of good faith required by

28 U.S.C. § 144 when the Motion to Recuse was first filed by Barnes on November 28, 2007,

Barnes corrected that omission on November 29, 2006, by filing his Certificate of Good Faith for

John Spiegelberg’s, d/b/a Red Raider Outfitters’, Motion to Recuse [Doc. #174].

6

Though the Court chooses not to proceed at this time with any disbarment sanctions,

there is United States Supreme Court precedent for such a sanction. Counsel Barnes could have

been made to show cause why he should not have been subjected to disbarment from this Court

based upon his Certification of Good Faith. See Berger v. United States, 255 U.S. 22, 33-35

(1921) (“connivance therein of counsel, thereby subjecting him to disbarment” from filing a

certificate of good faith certifying false statements) (emphasis added).

3

Stephen Spiegelberg’s Declaration, sworn under penalty of perjury, clearly contained false

statements of fact. Specifically, the Declaration of Stephen Spiegelberg stated as fact:

I have personal knowledge of the [sic] all the facts stated in this

declaration and those facts are true and correct.

* * *

Judge Cummings attends Texas Tech games and parks in a

reserved parking lot. The season tickets Judge Cummings has,

along with the parking pass, were a gift from the University. 

Judge Cummings exercises at the Texas Tech University facility.

(Def.’s App. in Supp. Mot. Recuse [Doc. #173] at 4.)4

 Counsel Barnes certified those factual

assertions in his Certificate of Good Faith filed in conjunction with the Motion to Recuse.5

Not only was there a lack of evidentiary support for the Motion to Recuse, but it is

unreasonable for counsel Barnes to have filed the Motion to Recuse along with the Declaration

and Certificate of Good Faith without conducting any rudimentary investigation of the facts or of

legal precedent regarding the timing and grounds for such a motion.6

 The Certificate of Good

Faith is designed to protect against an untruthful affidavit. Morrison v. United States, 432 F.2d

 

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7

It is clear that Barnes had no basis for believing the allegations were true; however, he

also failed in later filings to change his Certification of Good Faith “based on fact and on

reasonable evidence.” (Cert. Good Faith [Doc. # 174] at 2); Childs v. State Farm Mut. Auto. Ins.

Co., 29 F.3d 1018, 1024 n. 18 (5th Cir. 1994) (“if facts are discovered that show that there is no

longer a good faith basis for a position taken by a party, a pleading, motion, or other paper

signed after those facts come to light reaffirming that position can be the basis of a violation of

the rule”). Barnes signed a Notice of Appeal to appeal the ruling by Judge Fitzwater on the

Motion to Recuse. Thus, he apparently reaffirmed the position taken in the Motion to Recuse

and the Certificate of Good Faith. 

Moreover, Barnes signed the Motion to Recuse and Certificate even after his own

investigator’s report stated that “[w]e have tried several avenues to seek a possible connection

with your Person of Interest and Texas Tech, although we haven’t been able to establish

that. . . .” (Def.’s App. in Supp. Mot. Recuse at 3.) The evidence appears to show that RRO’s

attorney was responsible for hiring the private investigator. (Def.’s App. in Supp. Mot. Recuse

at 2-3 (investigator’s letter addressed to Barnes and Associates)).

4

1227, 1229 (5th Cir. 1970). “The requirement [for a certificate] is founded on the assumption

that counsel will not execute a certificate in reckless disregard for the truth.” Id. (emphasis

added); Fed. R. Civ. P. 11(b) (“the best of the person’s knowledge, information, and belief,

formed after an inquiry reasonable under the circumstances”) (emphasis added). 

It is clear that counsel Barnes, at best, failed to perform any type of due diligence before

filing the Motion to Recuse or the Good Faith Certificate. At worst, he purposefully filed the

Motion and Certificate knowing the information contained therein was false and without any

evidentiary support. (App. in Supp. Pl.’s Opp. Mot. Recuse [Doc. # 180] at 7-8 (“Here again is

attorney Stacey Barnes. ‘I personally have no knowledge of that allegation being true.’”); id. at

18 (“[S]ome evidence of that? The answer is no. . . .”)); (App. in Supp. Def.’s Mot. Recuse

[Doc. #173] at 3 (“although we haven’t been able to establish [a connection with your Person of

Interest and Texas Tech]”)).7

 

“Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable

inquiry and have determined that any papers filed with the court are well grounded in fact,

 

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legally tenable, and ‘not interposed for any improper purpose.’” Cooter & Gell, 496 U.S. at 393

(quoting Advisory Comm. Note on Rule 11). The filing of complaints, papers, or other motions

without taking the necessary care in their preparation is a separate abuse of the judicial system. 

Id. at 398. “An attorney’s good faith is no longer enough to protect him” from action by a court

relating to abuse of the judicial system. Robinson v. National Cash Register Co., 808 F.2d 1119,

1127 (5th Cir. 1987). Additionally, this Court’s inherent power to sanction for bad-faith conduct

is not displaced by rule or statute. See Chambers v. NASCO, 501 U.S. 32, 46 (1991). “[I]n the

informed discretion of the court, . . . it may safely rely on its inherent power” if the rules do not

provide an adequate remedy. Id. at 50.

Barnes has stated in an interview with the media that, prior to filing the Motion to

Recuse, neither he nor his client attempted to perform the simplest of reasonable inquiries by

requesting information from Tech as to who has been given free tickets and parking passes to

sporting events. (Pl.’s App. in Supp. of Opp. Mot. Recuse at 18 (“Barnes did not ask the

university for documents regarding complimentary tickets or other perks, he said. . . . ‘We

figured that would be a pointless quest there.’”)). 

Rule 8.02 of the Texas Disciplinary Rules states that “a lawyer shall not make a

statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity

concerning the qualifications or integrity of a judge.” United States v. Nolan, 472 F.3d 362, 370-

72 (5th Cir. 2006) (finding no fault with the district court’s position that “an attorney who makes

[a statement concerning the integrity of a judge] be able to provide evidence sufficient to justify

his good-faith belief in the truth of those assertions”); Tex. Disciplinary R. Prof’l Conduct 8.02.

If, as in this instance, a lawyer knows or learns that a client is likely to or has already

committed a criminal or fraudulent act, “the lawyer shall make reasonable efforts under the

 

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8

It certainly appears that RRO, Stephen Spiegelberg, and counsel Barnes attempted to

engage in ill-conceived machinations to delay, obstruct, and prevent the entry of a final judgment

and injunction after receiving an adverse ruling. 

9

See also Tex. Disciplinary R. Prof’l Conduct 4.01 (“In the course of representing a client

a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third

person; or (b) fail to disclose a material fact to a criminal act or knowingly assisting a fraudulent

act perpetrated by a client.”).

10Here, counsel Barnes knew from the time he filed the Motion to Recuse along with the

perjurious Declaration and his Good Faith Certificate that there was no evidentiary support for

the false allegations relating to free tickets and parking passes. Yet, counsel Barnes never

attempted to withdraw the motion and false statements or take any remedial action whatsoever. 

Rather, counsel Barnes filed a notice of appeal to appeal the adverse ruling of Judge Fitzwater

denying the Motion to Recuse. 

6

circumstances to persuade the client to take corrective action.” Tex. Disciplinary R. Prof’l

Conduct 1.02(c - e). Moreover, when “a lawyer knows that a client expects representations not

permitted by the rules of professional conduct or other law, the lawyer shall consult with the

client regarding the relevant limitation on the lawyer’s conduct.” Id. at 1.02(f). A lawyer also

“shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer

reasonably believes that there is a basis for doing so that is not frivolous.” Id. at 3.01. Likewise,

“a lawyer shall not take a position that unreasonably increases the costs or other burdens of the

case or that unreasonably delays resolution of the matter.” Id. at 3.02.8

 Additionally, a “lawyer

shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to

disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or

fraudulent act; . . . (5) offer or use evidence that the lawyer knows to be false.” Id. at 3.03.9 “If a

lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a

good faith effort to . . . correct or withdraw false evidence.” Id. at 3.03(b). “[T]he lawyer shall

take reasonable remedial measures, including disclosure of the true facts.” Id.

10

 

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11While this case was pending, both prior to and subsequent to this Court’s summary

judgment ruling, RRO maintained a website criticizing the ruling and questioning this Court’s

impartiality based upon the false factual assertions relating to the free tickets and parking passes. 

Further, RRO and its attorney made numerous comments to the press and by way of media

releases relating to the same false factual assertions. Moreover, they further questioned the

credibility and reputation of Tech by implying that Tech had unduly influenced a sitting judge by

way of giving gifts. 

12The Court believes that this order will serve as a grievance based upon precedent within

this circuit. “[U]nder authority of Canon 3(B)(3) of the Code of Conduct for United States

Judges, the court forwarded a copy of the opinion to the State Bar of Texas.” In re Thomas,

2007 WL 654241, *3-4 (5th Cir. March 1, 2007) (unpublished opinion) (recognizing a

bankruptcy court’s right to forward the opinion to State Bar of Texas); In re Wesolick, 2006 WL

2431990 at *3 (Bkrtcy S.D. Tex. August 17, 2006); Phillips ex rel. Estate of Fullingim v. First

Nat’l Bank of Weatherford, 258 F. Supp. 2d 501, 507-08 (N.D. Tex. 2002) (Means, J.) (ordering

copy of order be forwarded to Grievance Committee). 

7

Finally, “a lawyer shall not make extrajudicial statements that a reasonable person would

expect to be disseminated by means of a public communication if the lawyer knows or

reasonably should know that it will have a substantial likelihood of materially prejudicing an

adjudicatory proceeding . . . [and] a lawyer shall not counsel or assist another person to make

such a statement.” Id. at 3.07. These extrajudicial statements apply when “the character,

credibility, [or] reputation” of a party, and in this instance the sitting judge as well, are referred

to in the statement. Id.

11 

The Court will not directly sanction Barnes or his client John Spiegelberg at this time. 

However, the Court, having considered the conduct exhibited by Barnes, hereby warns him that

should he repeat such outrageous conduct and behavior in this Court in the future he will be

sanctioned accordingly.

The Clerk shall serve a copy of this order on the Office of the Chief Disciplinary Counsel

of the State Bar of Texas, 300 La Costa Center, 6300 La Calma Drive, Austin, Texas 78752, to

be considered as a grievance filed by this Court12 and for any other action that the State Bar of

 

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Texas may deem appropriate. The Clerk shall also serve on the Office of the Chief Disciplinary

Counsel of the State Bar of Texas copies of the following documents filed in this case:

(1) John Spiegelberg’s, d/b/a Red Raider Outfitters’, Motion to Recuse [Doc. # 172];

(2) Appendix in Support of John Spiegelberg d/b/a Red Raider Outfitters’ Motion to

Recuse [Doc. # 173];

(3) Certificate of Good Faith for John Spiegelberg’s, d/b/a Red Raider Outfitters’,

Motion to Recuse, signed by Stacey Barnes [Doc. # 174];

(4) Plaintiff’s Opposition to Defendant’s Motion to Recuse [Doc. # 180];

(5) Appendix in Support of Plaintiff’s Opposition to Motion to Recuse [Doc.

#180-2];

(6) Order filed December 7, 2006, referring the Motion to Recuse to Chief Judge Fish

[Doc. # 184]; and

(7) Memorandum Opinion and Order signed by Judge Sidney A. Fitzwater and filed

December 11, 2006, denying the Motion to Recuse [#186].

SO ORDERED this 7th day of March, 2007.

_________________________________

SAM R. CUMMINGS

UNITED STATES DISTRICT COURT

 

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