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One Word The 5th U.S. Circuit Court of Appeals on Jan. 31 affirmed a Rule 11 sanctions order against Dallas lawyer Donald H. Flanary Jr. in connection with a brief he filed in a racial discrimination suit that contained a racially charged word not used in the supporting affidavit. A three-judge 5th Circuit panel found U.S. District Judge Barbara Lynn of Dallas did not abuse her discretion by imposing sua sponte the public-reprimand sanction against Flanary, of Delgado, Acosta, Braden & Jones in Dallas, under Federal Rule of Civil Procedure 11(b)(3). “As the district court notes, the error was glaring and could have had a serious impact on its summary-judgment decision,” Judge Rhesa Hawkins Barksdale wrote in the opinion. The panel also included Judges Harold R. DeMoss Jr. and Edward Prado. According to the opinion, the word at issue was included in a brief Flanary filed for his client, Dr. Eric Jenkins, a doctor who brought a racial discrimination suit against Methodist Hospitals of Dallas Inc. and several of its doctors. In the brief, Jenkins, who is African-American, is quoted as saying the chief of the hospital’s department of medicine told him: “Boy, I would not let you treat my dog.” However, the opinion noted that Jenkins did not use the word “boy” in his affidavit, and Flanary failed for several weeks to correct the brief after the error was brought to his attention in a reply brief filed by opposing counsel. In Lynn’s order in 2004 imposing the sanction against Flanary, she found Flanary “personally responsible” for not verifying the accuracy of the alleged quotation and in not promptly withdrawing it once the error was pointed out to him. Flanary says he wants to talk to his counsel before deciding if he will ask for a rehearing before the 5th Circuit. “It’s an important issue for lawyers � if someone makes a one-word mistake in the brief,” he says. “Several people read it other than myself. It was proofread. It was just a mistake.” Flanary was at Flanary Carter Schubert in Dallas in November 2003 when he filed the brief at issue. An attorney for Flanary, Danny Ashby, a partner in Hughes & Luce in Dallas, did not return a telephone call seeking comment before presstime on Feb. 8. Jenkins, meanwhile, also appealed a summary judgment Lynn granted on the hospital’s behalf in Jenkins v. Methodist Hospitals, et al.but the 5th Circuit panel upheld that summary judgment, finding Jenkins failed to show a genuine issue of material fact. William Fouche, a solo practitioner in Dallas who handled Jenkins’ appeal before the 5th Circuit, says Jenkins will seek a rehearing. A lawyer for the hospital and the other defendants, Stephen Fink, a partner in Thompson & Knight in Dallas, says he is pleased the appeals court affirmed the summary judgment in his clients’ favor. He notes his clients did not ask Lynn to impose a sanction against Flanary. [ See the court's opinion.] Time Crunch At the U.S. Attorney’s Office in the Northern District of Texas, the lawyer ranks are thinning � at least temporarily. Over the past 40 days, according to a second extension motion filed in United States v. Holy Land Foundation for Relief and Development, et al. by First Assistant U.S. Attorney Jim Jacks, four assistant U.S. attorneys retired and one passed away. “[T]hese circumstances have significantly increased the demands and the responsibilities of the undersigned in his other assigned duties,” Jacks wrote to Chief U.S. District Judge A. Joe Fish of Dallas in the Feb. 2 motion. “For this reason the government will need additional time,” Jacks wrote, asking for five more days to file a response to a defense motion. In the multidefendant prosecution involving the Richardson-based Holy Land Foundation, the government accuses the HLF of funneling at least $12.4 million to Hamas, a Palestinian group the U.S. government has designated as a terrorist organization. The defendants deny the allegations. Richard Roper, U.S. attorney for the Northern District, says his office has lost some lawyers. Of the 90 attorney positions he is supposed to supervise, Roper says 11 are vacant. Roper says Paul Gartner, 54, died suddenly on Dec. 30, 2006. Gartner had been the branch assistant U.S. attorney in charge in Fort Worth and a deputy criminal chief. Gartner’s interim replacement is Assistant U.S. Attorney Mark Nichols. Four AUSAs have retired, including criminal chief Robert Webster, who was replaced on Feb. 1 by Mark McBride, as well as Paul Macaluso, Floyd Clardy III and Myrna Silen, Roper says. “We hope to replace them in the next few months,” says Roper. He says red tape has slowed his hiring plans. As of Feb. 5, Webster, who had been with the U.S. Attorney’s Office for 19 years, will serve as of counsel at Dallas’ Fitzpatrick, Hagood, Smith & Uhl. Macaluso, also a 19-year veteran of the U.S. Attorney’s Office, says he plans to engage in a limited solo criminal-defense practice. Clardy says he intends to accept an of counsel position with a Dallas firm handling civil and criminal cases but hasn’t solidified his plans yet. McBride did not return a telephone call seeking comment. A telephone listing could not be located for Silen.

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