Lawyers commonly swear to mandamus petitions that give the procedural history of events in the lower court. The Dallas Court of Appeals recently reminded the bar that such sworn petitions trigger a duty to update the appellate court promptly if subsequent proceedings in the lower court change the material facts stated in the petition. In In re the City of Lancaster, No. 05-07-00196-CV (Tex. App.--Dallas June 18, 2007), the city filed a mandamus petition attacking a summary judgment order. The trial court subsequently entered a modified summary judgment order which mooted some -- but not all -- of the City's grounds for seeking a writ of mandamus.

Counsel for the city did not communicate to the appellate court that the trial court had revised the summary judgment that was the basis for the City's petition, or that the City's petition was moot in whole or in part. After the court issued an opinion on the mandamus petition, the parties filed an agreed motion to dismiss the proceeding, bringing to the court's attention for the first time that the trial court has issued the revised summary judgment.

The Court of Appeals required the city's counsel to show cause why they should not be sanctioned or referred to the Office of Disciplinary Counsel. After receiving the attorneys' responses, the court said:

. . . [T]he Texas Disciplinary Rules of Professional Conduct impose upon counsel the duty of candor toward the court. See Tex. Disciplinary R. Prof'L Conduct 3.03(a)(1), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9). “A lawyer shall not knowingly make a false statement of material fact . . . to a tribunal.” Tex. Disciplinary R. Prof'l Conduct 3.03(a)(1). Further, Disciplinary Rule 3.03(b) provides:

If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.

Tex. Disciplinary R. Prof'l Conduct 3.03(b). The duties set forth in Disciplinary Rules 3.03(a) and (b) “continue until remedial legal measures are no longer reasonably possible.” Tex. Disciplinary R. Prof'l Conduct 3.03(c).

. . . [T]he duty of honesty and candor a lawyer owes to the appellate court includes fairly portraying the record on appeal. Schlafly v. Schlafly, 33 S.W.3d 863, 873 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). Texas Rule of Appellate Procedure 52.11 makes clear that a lawyer has the same duty in original proceedings. Tex. R. App. P. 52.11. Factual misrepresentations not only violate a lawyer's duty to the appellate court but also subject offenders to sanctions. Schlafly, 33 S.W.3d at 873; Am. Paging of Tex., Inc. v. El Paso Paging, Inc., 9 S.W.3d 237, 242 (Tex. App.-El Paso 1999, pet. denied). 

After noting that the city's counsel had signed the mandamus petition and that the rules of appellate procedure also require the factual statements in a petition for mandamus to be “verified by affidavit made on personal knowledge by an affiant competent to testify to the matters stated,” Tex. R. App. P. 52.3, the court concluded:

[The city's attorneys'] responses to the Order to Show Cause state that they “absolutely did not offer false material evidence to this [C]ourt.” We agree. As noted in the May 18 Order to Show Cause, we presume the facts stated in the petition, filed by [one of the city's attorneys] and sworn to by [the other], were correct when the petition was filed. However, this does not end the inquiry. . . . [I]t appeared that thereafter -- after this Court had granted a stay and requested a response to the City's petition, and while the matter was pending before the Court -- events transpired rendering the facts stated and sworn to in the petition no longer true; that [the city's attorneys] knew such sworn statements were no longer true; and that they did nothing to communicate that knowledge to this Court. Thus, the issue is whether [the city's] attorneys complied with Disciplinary Rules 3.03(b) and (c) and, if not, why not.

. . .

In the context of an original proceeding seeking the issuance of a writ of mandamus, the statements in the petition . . . constitute material evidence in the original proceeding. When [the city's attorneys] later came to know that [the] affidavit, even though true when submitted, was rendered false by subsequent events, Disciplinary Rules 3.03(b) and (c) obligate [the city's attorneys] to correct or withdraw the false evidence and disclose the true facts. . . . [The city's attorneys] were obligated to file -- in the original proceeding -- either an amended, sworn petition setting forth the correct facts, or (at the very least) another affidavit correcting the statements made and sworn to in the prior petition. We reject [the attorneys'] argument to the contrary.

Further, when determining an original proceeding, the appellate court must necessarily presume that the facts set forth in the petition and sworn to according to rule 52.3 are correct, and that they remain correct during the pendency of the original proceeding. Otherwise, to obtain mandamus relief a petitioner would be in the ludicrous position of having to file regularly additional supplements to the petition assuring the appellate court that such sworn facts remain correct, and thus that mandamus relief is still appropriate. This is not the law. Thus, we read Texas Rules of Appellate Procedure 52.3 and 52.11 as necessarily imposing the same obligation as Disciplinary Rules 3.03(b) and (c) -- i.e. that counsel signing a petition in an original proceeding or swearing to the material facts in such a petition have an obligation to inform the appellate court of any changes in such sworn material facts which render those allegations or affidavit false.

Based on the record, including [the attorneys'] responses to the May 18 Order to Show Cause, we conclude that [the city's attorneys] failed to comply with Disciplinary Rules 3.03(b) and (c) and appellate rules 52.3 and 52.11. [The attorneys] have apologized to the Court, and indicated that any failure on their part was not intentional on their part, but rather was inadvertent. Thus, based on based on the record -- including their responses -- we conclude [the attorneys] have shown cause why they should not be sanctioned in this case. However, we alert counsel as to their obligations to the Court and to the Bar that arise when they sign or swear to petitions filed in original proceedings.

Source: http://www.5thcoa.courts.state.tx.us/files/05/recent/070196SF.HTM