Lawyer Disciplinary Trial
There was to be a lawyer disciplinary proceeding in our 294th district court of Van Zandt County.
The State Bar has the duty in such matters, but I have found out from personal experience and that of others that they almost NEVER take action, and also that they keep such proceedings CONFIDENTIAL, and the usual most is a PRIVATE REPRIMAND, which effectively has ZERO impact. Even in the case of a PUBLIC reprimand, the only place it is made public is by having it listed in the State Bar Journal, and what ordinary mortal looks at that. If they were required to register at the courthouse, place a notice in the paper, or hang it up in their office or post it on their door, that would appear to be a more effective way to reprogram errant lawyers. The way it is now, even if one calls the Bar to inquire into a lawyer, all one gets is that he is "in good standing", but it means little more than that he has paid his annual dues. But that is another story.
All proceedings and records in our courts are of course PUBLIC, except under special circumstances as when juveniles are involved. Nevertheless, I will not be using names.
The proceedings were for Sept. 30, 2003, to be presided over in our Justice of the Peace Precinct 2 courtroom, by a "visiting judge" specially assigned by Texas Supreme Court judge Tom Phillips (www.TomPhillips.com) to our 294th District Court in this matter. "Visiting judges" are used whenever the regular judge has some sort of conflict of interest such as being too familiar with a party, and "recuses" himself from the case. Another less obvious role for visiting judges is to use them to get some sort of problem out of the way of the regular judge, without it appearing that he is the one who did it. But that is also another story.
It was to be a CIVIL, not a criminal proceeding, filed by the Commission For Lawyer Discipline, which I learned from their web site is the enforcement branch for the State Bar of Texas. I have also since learned that most lawyers do not carry matters to this level, and somehow just "accept" a reprimand from the Bar, rather than risk having matters being brought against them in an actual court of law such as in our district court. (In this case the Bar wanted $20,000 or so in "legal fees" from the lawyer, just for having to bring the proceedings, plus of course a "judgment of sanctions")
Via the internet I have also since found out that the Bar only actually brings to court about 100 such cases a year, and that only about 20 actually go to trial, i.e. either the lawyer or the Bar chicken out. So with about 300 or so district courts in the state, getting to see such trial is indeed rare, despite 75,000 lawyers or so in Texas, and 8000 or so complaints filed annually.
I wanted to know if this was just a case of someone needing to show at least SOME output from the Bar, or whether they were finally starting to come down on lawyers.
Anyhow, I was going to do a little homework about what this case was all about, and started by looking at the "disciplinary petition" in the case file in the district clerk's office. It claimed that the lawyer had violated the Texas Disciplinary Rules of Professional Conduct by neglecting his duties regarding a grandmother who was wanting grandchildren visitation rights.
The grandmother had complained to the Bar, but at the Bar proceeding, so the suit said, the lawyer claimed that the grandmother was the cause of all the delay for failing to provide him with information that she was supposed to have given him. Next, the petition goes on, the grandmother stated that the lawyer had taken notes on a restaurant place mat, whereupon the lawyer in turn, claimed "that he had taken one page of notes on a notepad, and to prove his point, tendered a copy of the notes to the panel"
The disciplinary suit in turn said that the lawyer had lied to the Bar, because the notes had information that the lawyer could not have had at that time, at least so said the suit.
It seemed to me as if the Bar was most concerned about a lawyer lying to the Bar about a NAPKIN, and that the only thing that the Disciplinary Petition described with any detail at all was the NAPKIN issue! Anyhow, I wanted to find out more, and sat through the entire proceeding, which took a full TWO days, but it was well worth it.
I learned about a recent Supreme Court ruling severely restricting grandparent rights to sue for visitation with grandchildren, heard testimony from several judges, even from Betty Davis, ex-court coordinator, regarding how Judge Wallace’s much touted "express-lane" supposedly to "save valuable court time", instead kept the lawyer on trial today completely in the dark about what was going on in the court.
I even saw about two hours of videotape of otherwise confidential and internal Bar proceedings. Also I heard more objections by lawyers than I have seen in any other case.
The grandmother and I were about the only non-lawyers in there, and I was certainly the only visitor, and everybody was wondering where I came from.
Most astounding was the final result, a PRIVATE reprimand, at a PUBLIC hearing! But then, the Bar's Disciplinary Petition against the lawyer had not stated what they wanted the punishment to be, what type of reprimand, or whether disbarment. But then, as I learned later, the Disciplinary Rules list infractions, but do not specify the range of punishment. In retrospect, all this seems strange to me now, that a lawyer's entire career is hanging at the vim of a single judge, for I can see why no lawyer would want a jury trial with twelve non-lawyers sitting in a jury box.
* * * * * * *
I started the rounds at the courthouse as I normally do, checking the bulletin boards, and sort of trying to look in the door of both the county and district courtroom and at the hallways outside. Over the years I have come to recognize the names of the regular attorneys, even to associate them with a face.
As I was wondering what sort of a man, young or old, skinny or fat, experienced or new to the trade, was to be disciplined, I was approached by a distinguished gentleman, in maybe his fifties, wanting to know where the court-coordinator's office was. I had made eye contact with him in the hall, and he must have somehow sensed that I knew who was who in the courthouse, and that I was not just a part of the crowd the courthouse hallway, even though I was dressed pretty much like them. Anyhow, I assumed this was him, and started wondering why this lawyer, or any lawyer for that matter, would not or could not do what he was supposed to do, and would have to be disciplined, and just what they were going to do to him.
But the disciplinary suit itself was not to be held in our huge district courtroom, where things were about to start, but in one of our smaller justice of the peace courtrooms about a block away at the Courthouse Annex, but still a proceeding held in the name of the 294th District Court. I wondered how a court could hold open court in two places at once, but then I have learned that judges can get by with almost anything.
As I entered the small JP courtroom, I saw about five people on the first two rows on the right, and a court reporter, and the atmosphere was one of low level chatter. I rightfully assumed this was the Bar, but I wondered if these were all lawyers, or witnesses, and how this whole thing was to be conducted. I wondered if there was any other reason as to why this lawyer had chosen not to have trial by jury, other than knowing that he did not want to be judged by non-lawyers sitting in a jury box.
My notes show that there was a lady, maybe sixty years old, on the left side, and I assumed she was probably the grandmother, if for not other reason than that it is common for persons associated with the two sides to actually sit on different sides of the courtroom. But what I certainly did not know at the time, and maybe even the Bar did not fully appreciate, was all the excess legal baggage that the Bar was bringing into the court with her.
As only came out in the court proceedings, this lady seeking grandparent visitation rights actually had a court injunction against her prohibiting contact with the parents, all coming out a suit the parents had filed against her, to keep her away from them. Also that she had actually filed suit in a Dallas justice of the peace court, as a pro se, that is as an unrepresented party without a lawyer, against this lawyer to be disciplined today. Also that the lawyer had gotten the case moved into this very justice of the peace court we were sitting in today, and that the jury had ruled against her, or more correctly that it had been what is called an "instructed verdict", where the judge tells the jury that as a "matter of law" the plaintiff has no valid case.
Also that the lawyer to be disciplined today had just recently put in a Motion For Mental Examination of the grandmother, claiming that "although she may be crazy, it could be only that she is disturbed about the lack of her ability to see her grandkids", and that the lady "had engaged in contact with the Clerk's Office and Court Coordinator which lead each to believe the she was not in full possession of her faculties." In closing the motion stated:
"WHEREFORE, PREMISES CONSIDERED, Respondent requests the Court to Order that [she] submit to a mental examination with a qualified psychologist of the Court's choosing to determine whether or not [she] suffers from any mental disturbance which would explain her past conduct vis-a-vis her son, daughter-in-law, and daughter-in-law's extended family, her conduct before the County Court in Dallas County, Texas, and her conduct before the Van Zandt County, Texas District Court in the grandparent's visitation case, her conduct before the Justice Court of Dallas County, Texas, and her conduct before the Justice Court of Van Zandt county, Texas."
These are strong words, but then I have learned that lawyers always try to paint the opposing side as being the problem. Isn't that what one hires an attorney for, to put the best spin on a problem, even if he has to blame the victim. Anyhow the Motion itself did not come up in the trial, but in seeking the mental examination, the lawyer had claimed that the grandmother was "the real party in interest to the instant litigation", i.e. this disciplinary hearing, but the judge had denied the motion, on grounds that "the subject of Respondent's motion … … is neither a party to this action nor is she within the custody or under the legal control of a party. The court therefore DENIES Respondent's motion, and it is so ORDERED." Such of course was the case, as the suit was brought in the name of the Commission for Lawyer Discipline, and the lawyer was on trial, NOT the grandmother.
But since I had no knowledge of any of this until I later looked again at the case file, I for one certainly did not come into these proceedings with any preconceived notion as to the sanity of any of the parties, but certainly acquired such after sitting through the whole procedure, and especially after later finding out that there had been such a motion in the first place. My present conclusion is that I can see no sane reason why the Bar took this case in the first place, and especially why they elevated it into an actual disciplinary suit in a district court.
* * * * * *
Right on time at 9:00 the gentleman I had assumed to be the lawyer to be disciplined comes into the courtroom, but turns out to be the judge, and goes to shake hands. I recognize the court reporter. When they can't find the lawyer to be disciplined, they call to the district court, and the judge steps out. A short time later the lawyer appears with a neatly dressed lady who I first assumed to be his attorney, but turned out to be his attorney wife.
The judge comes back in, but nobody rises, and the judge calls the case. A lady, about 35, makes the opening statement for the Bar, essentially repeating what was in their Disciplinary Petition:
That there was this woman concerned about her grandkids, that she had filed a pro-se petition in the pending divorce proceedings regarding her son, that she had afterwards hired this lawyer to represent her to get visitation rights, that she had paid him $500, that she had given him certain information, that there was no attorney retainer contract, but that it was up to the lawyer to file an amended pleading, and that he wasted three months, and that even then failed to request a hearing in our district court, and that he had done little or hardly any work. The lady lawyer for the Bar went on to state that the lawyer's conduct violated certain specific State Bar Rules by acts such as neglecting a legal matter entrusted to him, frequently failing to carry out completely the obligations that he had to his client, failing to keep the client reasonably informed about status, failing to explain matters to the extent reasonably necessary, knowingly making a false statement to the Bar, and failing to respond to information from the Bar, to use just a few of the phrases from the State Bar Rules that he was supposed to have violated.
The Bar went on, stating that the grandmother had filed a grievance with the Bar, and that at the Bar hearing the lawyer's comments were not consistent, that he misrepresented matters to the Bar (i.e. he lied), and that such violated certain Bar rules.
I for one have looked and looked at both the Bar rules and the Rules of Civil Procedure, and look as hard as I may, I have never found the word LIE used anywhere, and it is not even listed in the index. Instead the Rules are replete with phrases that would lead one who did not know better to believe that lawyers carry the burdens and responsibilities of the world on their shoulders and are expected to have honesty and integrity that would guarantee a front seat in the reserved section of heaven.
Anyhow, the judge next asks the lawyer if he also wants to make an opening statement at this time, and he declines. The Rules of Civil Procedure state that a defendant can make such statement right after the plaintiff, or wait until the plaintiff has put on all of his evidence, and this is what the lawyer wanted to do.
My thoughts went back to the beaver dam suit against me, which had gotten me entangled in the court in the first place, where the lawyer had made lots of statements in voir dire, the initial questioning to the jury, but had not made an actual opening statement, and put a witness on the stand right off the bat. Then when I wanted to make an opening statement later, when I was going to put on my evidence, the lawyer objected that I was not entitled to make an opening statement because the lawyer had not made one, and me having to show the rule book to the judge where it says that the plaintiff SHALL make an opening statement. The only reason for a lawyer NOT to make an opening statement, and more so to try to keep a defendant like me in the beaver dam matter from making one, has to be to try to hide from the jury what they were doing in the first place, i.e. hide that they did not have a case in the first place. But that is another matter. But it was certainly on my mind as to why the Bar had chosen this particular lawyer to be disciplined.
* * * * * *
After a short break, the Bar called its first witness, the grandmother who had wanted visitation rights with her grandchildren and who had filed the grievance with the Bar. After a few questions as to name and where she worked, the matter quickly turned into the routine that was to prevail throughout most of the proceeding. The Bar was asking the grandmother. The objections were by the lawyer on trial.
Q. How do you know this man?
A. I met him in Dallas.
Objection. Where you met, has nothing to do with who someone is.
Q. How do you know him?
A. I was advised about him.
Then finally, simply,
Q. Do you know this man?
Then more objections that a particular document at this time was a "last minute surprise", that it was not backed up by an original, that its "relevance" had not been established. So it could not be looked at till its "relevance" was established, and its "relevance" could not be established without looking at it first, etc. till the judge finally came down with, "We have to get to what we are doing. Objection overruled."
Then more objections that the questions were "leading". "Leading" more or less means asking questions that require little more than a "yes" or "no" answer, and either side is not to "lead" the witnesses they put in the witness chair, though it is permitted for the other side on cross-examination to ask such "leading" questions. I have come to recognize that what lawyers really do is put on a mini skit, since they themselves are not to testify by telling their side. A sort of "adult show-and-tell" for the jury, for lack of a better word.
My notes are full of "objections" of every kind, either that the testimony is upon matter occurred AFTER whatever was being discussed, and therefore was not "material", or that it had occurred BEFORE, that it was finished, and was not "relevant", or whatever. I have several notes where the Bar was trying to introduce a document, with the lawyer objecting that it was "extraneous", then the Bar lawyer explaining what it was, which to me seemed like the lawyer who was asking the question about what a document was, at the same time providing the answer.
What also particularly caught my attention was the round table communication including the judge as the ultimate finder of fact. A jury would surely not be allowed to make comments such as
Judge: I get it that she [the grandmother] was concerned.
It must have been about this time that the attorney for the Bar noticed that the lady who had come in with the lawyer was still in the courtroom. Witnesses can and should of course not hear proceedings to find out what another witness has said. It is called putting the witnesses "under the Rule", under whatever "rule" that allows for this, I presume. Anyhow, the Bar attorney wanted her out of the courtroom.
Then they argued whether there was an exception to the Rule so that she could stay, either by being an attorney, or the wife. Then everybody started flipping through their rulebooks, with the judge finally ruling that she could stay, and the wife did indeed testify later.
That must have awakened everybody about who all was going to be a witness today, with the Bar next objecting that certain judges that the lawyer was planning to put on as witnesses came as a "last minute surprise" to the Bar, with the lawyer arguing that the Bar itself, in discovery, had provided their names as persons having knowledge about the whole matter, and that it surely should not be a "surprise" to them to hear anything from a witness who they themselves had designated as having knowledge! At numerous places in my notes I find the notation, "Judge scratching his head".
Finally the questions to the grandmother came down as to what the lawyer had told her, and her answer was always, "Don't worry", expressed in a slow emphatic drawl, that he would get her visitation rights. Whenever she was asked what happened, the answer was always, "Nothing", with the same slow and sad drawl.
"Did he explain things to you?" "No, all he said was, don't worry", again with the same slow emphasis, "I'll get you visitation."
Then the Bar tried to present some documents, but another objection quickly came that this was not an original, that it came as a "surprise", and that no original could be found. My notes at this point credit the Bar lawyer with the phrase, "This is ridiculous", and in my opinion, they were right. One of the issues that came up later was the harm that was being done by this lawyer on trial in influencing the public's "perception" of lawyers and the judicial system. Since I was in fact the only part of the public at this trial, I will therefore not hesitate in presenting my "perception", namely that things were indeed becoming "ridiculous".
In closing its evidence, the Bar asked the grandmother to state when she terminated the lawyer. "When he threatened to sue me if I ever called him again", was the reply.
Next my notes show a question to the effect of whether this lawyer affected her trust in lawyers, and whether she hired another attorney after that. She said that she had not hired another lawyer, since she had missed the divorce. I do not remember hearing an answer as to whether THIS lawyer had affected her trust in lawyers. But then HE must have affected her, since she did indeed file a suit against him.
On cross-examination the lawyer tried to show some documents, but the question quickly became whether the potential "prejudice" would be warranted by the "probative value", which of course is an important issue in a jury trial. But here the judge would have to look at the documents to make the decision in the first place, took the exhibits all apart, and then put them all together again. They must have been documents written by the grandmother, for I heard the phrase that that they were being "offered for state of mind, not validity", and that the lawyer was showing them to show "her knowledge and use of the grievance system" to shed light on "her perception of the legal system".
"I will allow him to go into the filing of the grievance, to determine whether this lawyer is the ONLY one that gave this person such perception", was the judge's ruling. And with that the lawyer began questioning the grandmother, whether OTHER lawyers had also affected her opinion of lawyers. My notes show several more Objections, followed by a quote of the lawyer, that he was only "trying to illustrate a pattern of conduct". It was about 11:00 a.m. and time for a break.
When we came back, curiosity must have gotten the better of one of the lawyers. "Are you a witness?" "If they ask me", was my reply that I have used several times when sitting in on a trial, and everybody wondering who I am.
Next the Bar put the lawyer on the stand, asking him why he had waited so long to file an amended pleading in the court to replace what the grandmother had put in. Did he not know that the U.S. Supreme Court had decided to hear a grandparent visitation rights case, Troxel v. Granville, and that grandparent rights were expected to be severely curbed, and that this grandmother might not get visitation after such a decision, which the Supreme Court did indeed make, that only members of the "nuclear family" could obtain court-ordered visitation.
Even at that, it seemed strange to me to me for the Bar to even raise this issue in a disciplinary proceeding, since the ultimate result of the attorney having delayed, for whatever reason, could have been no more than that he had delayed till the U.S. Supreme Court came out with the correct law! Besides that, this grandmother was not entitled to visitation under the circumstances of this case, where there was an actual injunction against her prohibiting her from having any contact, issued by another court.
Next the discussion went to how the Bar was going to present what the lawyer had told the Bar at their hearing, i.e. whether he had lied. The problem seemed to be that a video recording had been made, but no transcription, but that they had the tape, and that the Bar wanted to show the judge where the lawyer had lied.
So the discussion went to whether the court reporter could transcribe just a portion of the tape. The reporter's answer was that she could not certify to it if she was not present as it had been recorded, "My job is to take a LIVE hearing". Next I hear the reporter asking, "Are we ON the record, or OFF the record, judge?"
Finally the judge decides that under the "completeness rule", the whole thing should be played, and asks the court reporter if she can ask someone, apparently how to do this thing. I hear the answer, "I'd rather you (judge) do it."
Anyway they played the tape of what was intended to be a confidential and internal Bar proceeding, with the court reporter taking it down, I presume.
To me, a lay person, the Bar proceeding appeared more accusatory and haphazard than what would expect in a court of law, almost as if anything goes. I have read that at a Bar proceeding the presumption is that the complainant is right, and that it is up to the lawyer to prove that what the complainant has said is not true. But then of course, a grievance proceeding certainly is not a court of law, like what we are here to do today.
To me it began to appear that this whole matter was a real bad case of he-said-she-said, carried to the absurd. On the tape the grandmother was claiming the lawyer was rude and would not return her calls, with the lawyer claiming the same of the client. She claimed the lawyer threatened to sue her if she kept calling his office, but then she was the one that actually sued HIM. On the tape she also claimed that there had been no evidence whatsoever presented in the suit against her by the children's parents for that judge to issue an injunction to keep her from contacting the parents and the grandchildren.
And so, for his first witness the lawyer called the judge who the grandmother had said on the tape that there was no evidence presented. To me it appeared that the lawyer had gone out of his way to present evidence that the grandmother would not or could not tell the truth, which had been his issue in his Motion for Mental Examination. After a few preliminaries he asked the judge in the witness chair, if he had indeed been the one who had signed the injunction against her, and he said he was. When asked if he had "tested her credibility, whether she was truthful in her statements", the answer by the judge in the witness chair was that he did not "remember she ever really lied", but that he ruled against her. Then came the final question, "If there were evidence introduced that there was no evidence to the injunction, that would be incorrect?", with the answer being a very positive YES.
The next witness was an attorney who had represented the grandmother about ten years ago in a criminal proceeding, with the Bar again claiming "surprise", with the lawyer on trial again claiming that the Bar can't claim surprise, since it was they who listed him as a potential witness in the first place. The judge ultimately ruled, "What can it hurt to hear from someone?" Again the issue became whether this was "more prejudicial than probative", with the judge deciding that such could matter in a jury trial, but ruling that THIS judge could distinguish between the two.
The first question came right to the issue, "Have you known her long enough to develop an opinion as to her truthfulness?" The answer was YES, that she also filed a grievance against him with the Bar, claiming that he had done no work. "Did she ever express hostility toward lawyers?" YES.
"Were there certain buzz words that she was using?" YES, "all the time", "never", "everything", that he was the "enemy".
"Did she make false representations about hearings?" YES
"Did she ever express hostility toward lawyers?" YES
Next the lawyer put Betty Davis, the ex court coordinator on the stand. The testimony was about ex-district judge Wallace's much touted "express lane" that was supposedly saving "valuable court time", but in this case really screwed things up. Apparently nobody even noticed that the grandmother had filed a petition for intervention in the divorce, and the lawyer in the agreed divorce proceeding just went to the "express lane", and Wallace just signed the divorce, all without the grandmother or the lawyer on trial today even knowing about it!
The point the lawyer made was that he had no knowledge that anything was urgent, and that he needed time to get his case in order, so that he would not be severely sanctioned as had previously happened to him, when he had not investigated.
Next on the stand was the wife of the lawyer on trial, being examined by the lawyer putting on his little skit. She testified it was her husband's habit to ALWAYS take notes on a notepad, writing things down in the larger portion of the paper, then later following up by adding additional information in the smaller portion.
PRESTO, another answer how the lawyer's notepad that he had presented at the Bar hearing could indeed have had information on it that the Bar in its petition was claiming he could NOT have had at the first hearing! How stupid, or how sharp, lawyers can be, depending on the side. Unresolved, of course is still whether someone lied, but the Bar certainly did not prove what they said in their petition, that there was NO way certain information could have been on the lawyer's notepad that he had shown at the Bar hearing! "Did you ever see me take notes on anything other than a pad?" NO. The grandmother had claimed he took notes on a "restaurant place mat", and the Bar was claiming the lawyer had lied when he showed them his notepad.
Next on the witness stand was another attorney, the one who had represented the parents to get the injunction against the grandmother to keep her away. That attorney testified that he had even tried to get the court to hold the grandmother in contempt for violating the injunction to stay away from the parents.
"How did you do the divorce?" Answer, "Just took it in front of the judge"
"Did the grandmother have a good relation with her son?" NO
"Would you characterize it as a dysfunctional family?" YES
I thought to myself, why is the grandmother on trial. I thought this was a disciplinary hearing regarding the lawyer.
Then there were a few questions as to whether it was the practice in the district court at that time, to serve notice on anybody, if the agreed-on final decree was to be simply taken to the "express-lane" for the judge to sign. "I don't know judge Drum's policy. Not under Wallace."
PRESTO, the answer as to why the lawyer had not early-on filed anything, because he had not been informed that anything urgent was going on!
There was, of course, no question asked whether the old Wallace court itself might also be characterized as dysfunctional. But I already knew the answer to that, as finally did enough voters in Van Zandt County to get Wallace out at the last election.
The next witness the lawyer called was himself, stepping into the witness chair, and the facts came out real clear, with no more interruptions by "objection", and "hearsay". Lawyers refer to it as testimony in the "narrative", i.e. you just tell a story.
I first ran across it when I was representing myself in court, and the opposing lawyer had gotten through examining me, and the judge asked, "Do you wish to cross examine?" It caught me by complete surprise, what does the judge mean, how do I cross-examine myself. I asked the judge, but he would not give me a straight answer, but I figured it out. I could have jumped in and out of the witness chair to ask myself questions, but instead stated something like I wanted to examine myself on what is inside my mind, asking my other self what questions it wanted to be asked out of this self. Reading the transcript of that trial, it would have been clearer if I had indeed jumped in and out of the witness chair, putting on two different hats. But the public has so gotten used to the way lawyers do it, allowing his client to sit there, painted as this poor innocent victim, with his alter ego, the lawyer, hammering away at the other side by putting on his little show.
Anyhow, here was the lawyer finally telling his side of the story. He said that he had met the grandmother through another lawyer, that they had at least two phone conversations, that he tried to have her come down to his office in Van Zandt County, but that she seemed hesitant, and that he agreed to meet her at a restaurant in Dallas since he was going to be there anyway.
The lawyer went on to state that he believed the grandmother had with her the papers she had already filed in the district court, and must have provided the information that the Bar was saying he could not have put on his notepad at that time. Furthermore he again stated that he certainly did NOT take notes on a restaurant place mat as the grandmother had testified, that he had an idiosyncrasy of always carrying a notepad, and that he always left a little space on the left hand side to later write things in, so as not to break up the flow on the document as he adds information as it becomes available.
And he stated again that he had written things down on a note pad. That what the grandmother was saying about a restaurant place mat was just not true, and that he was using his pickup truck as a sort of portable office, that he had a computer, printer, scanner, and other equipment in there.
He stated that he knew that documents ultimately end up in court files, and that he did not want to put napkins and restaurant place mats in the file, and again said that the grandmother must have had a copy of her original grandparent petition she had filed in the court with her, and that it must have had the addresses and ages of the children.
He said that she told him that she wanted visitation rights with the grandchildren, and that as they talked it became clear that the grandmother and the daughter in law could not get along, but that he let her talk. Also that he had a habit of always asking a client to write and give a historical account of what they want, that he'll decide if it is too much, that he wants to get as complete a picture as he can. Then he went on that it is his standard practice to tell a client that he does NOT know what a judge or jury will do.
He said that he promptly got in contact with Betty Davis, then court coordinator, and that "Betty Davis controls Wallace's court. You have to get to Ms. Davis", and that one of the first things he always did when he had a case in another court, was to find out the "local custom".
He said that sometime later the grandmother sent him a packet of documents and he found out that there was an injunction against her forbidding her from having any contact with the parents, and that such surely had an impact on her getting visitation rights to the kids. Also that he knew judge Wallace always required mediation in a family case, and that a social study "would flush out the problem" that there was no way even to exchange the kids "except in the sheriff's office".
The lawyer said that what happened is that the parents' lawyer took the divorce to Wallace's "express docket", where you literally take a consented decree, and get a signature on it right then and there, and that he had not been informed at all.
Also that he had at one time gotten a $600,000 sanction against him, accused of not investigating sufficiently before he filed documents, and that if he would not have found out about the injunction against the grandmother, he would have "gotten in trouble with judge Wallace", and that he did not want a sanction on him or his client.
He said that about that time the grandmother became unhappy with him because he was not telling her what she wanted to hear, namely that she was going to get the kids, and that about that time she filed suit on him in a justice of the peace court, that it was tried in this very courtroom before a jury, that the judge granted a "directed verdict", and that she was not very happy. (A directed verdict is where a judge has a jury sitting there, but decides that there is nothing left for the jury to decide, that the undisputed evidence is sufficient for a ruling, and instructs the jury how to rule. Might as well not have had a jury there)
Then the lawyer came back to Wallace's "express docket", emphasizing again that he had NO notice that they were just going to run things through like that.
The lawyer stated that he expected the grandmother to appeal to the County Court, but that instead she filed a grievance with the Bar.
About that time I heard an objection from the Bar, "He is the basis of this action, we are not!"
And the lawyer came back again that the grandmother was not telling the Bar the truth when she quoted him as having said again and again, "Don't worry, I'll get you visitation." He said that a lawyer does NOT promise success to a client, "that is a recipe for disaster". With that the lawyer closed his evidence. The Bar chose not to cross-examine him. To me at least, things were rapidly becoming very clear.
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Next the judge asked the Bar what sanction they were seeking, and the range of punishment available to the court. The Bar stated that this lawyer had done "little work", "waited 3 months" before he filed anything, even in the face of a potential ruling by the U.S. Supreme court that might restrict grandparent rights (and did), that the lawyer had used the explanation of "waiting", and that all that "waiting" constituted neglect. That the State Bar Rule 1.01(b) stated that a lawyer shall not "neglect a legal matter entrusted to the lawyer, or frequently fail to carry out completely the obligations that the lawyer owes to a client", and that was exactly what the lawyer had done.
Next the judge asked the Bar for their interpretation as to what the term "conscious disregard" meant, a term I now know was used in defining "neglect", "as used in this rule, "neglect" signifies inattentiveness involving a conscious disregard for the responsibilities owed to a client".
"In my eyes 'conscious' means knowing", the Bar replied. So what else is new?
Next the judge read State Bar Rule 1.03: "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information", and asked the bar, "if the client has a handicap, do I look at a 'reasonable' client?" The Bar answer was first silence, then a statement more or less to the effect that the rules did not depend upon the client, but what the rules required. .
Then more questions to the Bar, "What if you have a 'difficult' client, how do you take that into consideration, or do you go by just a general standard?"
"What if you have a client who has a history of problems with the legal system"?
"What if the client has a disability of not being able to understand. Does a lawyer have a duty to do something different?" A long pause, with the Bar flipping through the rule book. It was becoming obvious that this lawyer prosecuting for the Bar had never been on this road before!
My notes are somewhat sketchy at this place, but it appears the Bar somehow shifted the emphasis back to what they had said in the Disciplinary Petition, that the lawyer could not have had certain information on the notepad that he had presented at the bar proceedings.
The judge went on, questioning the Bar on the statement in the Disciplinary Petition, stating that the lawyer could not have had certain information at that time. "How is it apparent to the Bar that it could not have been obtained at that time? Now you are not so sure anymore?"
Without providing an answer, the Bar went on to state that they recognize that this was a very "challenging case", that they agree that there were things that the grandmother had said at various times that were not consistent, but that SHE is not on trial! That the issue is whether HE did neglect her case. That he did little or no work, and that HE did not keep her informed.
Next the judge wanted to know the range of sanctions, to be told by the Bar that it could be anything from a PUBLIC reprimand all the way to disbarment, and that a PRIVATE reprimand was no longer available now that formal proceedings had been started in a court of law.
The judge asked the Bar, "Did you see such penalties under trial de-novo in a district Court?" Proceeding in the district court of course start out from ground zero, and it is immaterial what may have occurred in private bar proceedings, and what may or may not have been offered to the lawyer as punishment. There was no answer from the Bar.
The judge asked again, if the Bar had ever seen anything on the range of sanctions available in a district court, again with no answer. Then the judge asked them what they are seeking, what they consider reasonable under the circumstances. The answer was that they were seeking a PUBLIC reprimand, plus "reasonable attorney's fees" for having to bring the case, plus that the lawyer attend some sort of class in "office management", plus some sort of course in "professional enhancement", or something of that sort.
The lawyer on trial offered an article bearing on the range of sanctions, and the judge after reviewing it, ruled that the range of punishment could indeed include a PRIVATE reprimand.
The big catch of course was "legal fees", of which the Bar wanted about $20,000, which of course would be a big money-maker for the Bar.
Next the lawyer on trial presented his closing argument, and I will present a few of the phrases that I find in my notes. He said that a lawyer who acts in good faith is not subject to sanctions, that the adequacy of what he did depends on what is in the clients best interest, that he did not lie, that this whole matter is about his career as a lawyer.
He said that he had now come to understand that the grandmother was going to do whatever it took to destroy the marriage of her son, and that she ultimately alienated her own son. He said that he had brought others as witnesses before this court to show that he was not out of line in assessing the grandmother, that this whole case was based on a he-said-she-said matter, and that he had tried to present the facts as honestly as he could to the court.
He said that the Bar is talking about "conscious disregard", and failing to inform the grandmother so that she could make the right "decisions", but that there were no decisions to be made by her, except to provide information. Also that he practices law based on his own experience, and that if he had not spent a lot of time in preparation and finding out what all was at the bottom of this case, he would have been filing something that should not have been filed, and that the only decision this grandmother had to make, was to provide him with information, and that once he got information, he found out it was a totally dysfunctional family.
The lawyer again stated that the Bar had not presented ANY evidence that he had not told the truth, and that all they were telling this court, was to "believe this woman, and punish this man", that he could have "papered the file to death", but that "I wasn't thinking of covering my butt".
The judge continued, "Does a lawyer have a duty to communicate in writing when his client becomes difficult? It would have been better to have document." The reply was, "Would have been better for me, but not better for my client."
The judge said there would be a short break while he prepared the judgment. By now it was about 7:00 p.m. on the second full day of this proceeding.
Many thoughts went through my mind as we were waiting in the hallway outside the justice of the peace court in the Courthouse annex. How many of these proceeding had the Bar had, or the judge for that matter. There were about four or five members with the Bar team, and they had set up a laptop computer on one of the brick walls outside and were playing some type of DVD on it, and all watching it. Curiosity finally got the better of me, and I proceeded to ask about how many of these proceedings they brought each year. I did not get an answer, only stares.
About 8:00 p.m. the judge was ready. He said that the lawyer had taken a difficult client, and without a written memorandum, and without an office consultation at that.
He intoned that a lawyer's obligation is unique and requires the utmost attention, "particularly under the circumstances of this case".
Then he continued to the lawyer, that he was a "seasoned litigant, a fine lawyer", but that this "fell below an acceptable level with the gifts you possess", but that "I do not believe that you deliberately acted dishonestly".
He found that the lawyer had violated Bar Rule 1.01b(1) for neglecting a legal matter entrusted to the lawyer, and he ruled against the Bar on all other matters, and that he was providing a PRIVATE REPRIMAND, that all other requests are DENIED, that each party pay for its OWN attorney fees.
With that the proceedings were finished. The lawyer was not real happy, but restrained. The Bar was restrained, but I could tell they were furious.
I went back to the file a few weeks later, and the Bar was still writing the judge that a PRIVATE reprimand is not available, with the judge writing back that that the rules may indeed limit the BAR to no longer offering a private reprimand, that NOWHERE does it say such is not available to the district court, that such is his OPINION, and that if anybody has any issue with this, they can take whatever steps they may be entitled to, i.e. appeal it.
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Opinion and Conclusion
A lawyer should almost be able to walk on water, if one believes the Texas Disciplinary Rules of Professional Conduct. The preamble on a lawyer's responsibilities states (emphasis added):
"A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.
"A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest."
So why did the Bar take this case in the first place, when they hardly ever do anything? Why did they actually bring it to trial in a court of law, when the law does not even proscribe a range of punishment? But then I have learned that a court of law cannot actually PUNISH anybody, except by full criminal process, including a finding of "beyond a reasonable doubt". What a civil proceeding can do, besides adjudicating "damages", is to impose sanctions to "coerce", but taking a Bar license away certainly does not qualify as "coercion" to do or not do anything, for is more like one of the objectives of a criminal punishment, namely "incapacitating". But so much for that.
So why did the lawyer not ask for trial by Jury? A jury would not be able to keep up with this case, and I cannot conceive of a lawyer wishing to be judged by non-lawyers sitting in the jury box.
Did the lawyer do his homework for this trial. YES.
Did the Bar. NO
What rights does a lawyer have, or can the Bar just come down on anybody, and who decides? A lawyer should certainly have the protection of the law, and certainly should not be punished additionally by "legal fees" for not just "accepting" punishment from the Bar.
I for one have come away from this trial with a little more appreciation of the problems a lawyer can have if he takes what turns out to be a "difficult" client. I have also come to recognize the problems the Bar can have with a "difficult" lawyer, or a lawyer with a "difficult" Bar. Or the problems all of us will have if we loose faith in the judicial system.
So what is the answer? I think we all need to learn more about our judicial system, and the important role it has in protecting all of us from each other, and of the importance of electing only honest capable persons to high office. It is in this spirit that I went to this trial and am writing about this matter.