360Law Looks At The Appellant's Disbarment Case: What Was Right and Not So Right About The Article
Thousands of Texas Attorneys have lent their names to an amicus brief to support the wrongful prosecution of former Assistant United States Attorney and former President of the University of Houston Law Alumni Association, Bob Bennett. Although the appeal of the case has been on-going for more than a year, recent filings and postings about the case, have caused many to wonder why Chief Disciplinary Counsel Linda Acevedo and Chairman of the Commission for Lawyer Discipline have not confessed error in the case. Over 20 Amicus Curiae Briefs including the signed 1,000+ attorney brief have been filed at: (http://www.search.txcourts.gov/Case.aspx?cn=14-14-00470-CV&coa=coa14). More than 100+ letters supporting Bennett have been posted at www.ocdc-revealed.com along with 166 client reviews and 40+ peer reviews. No ethics expert in the State of Texas has expressed support for what Assistant Disciplinary Counsel Tim Bersch has done and not one attorney has filed an amicus brief agreeing with the decision former Juvenile Court Justice Carmen Kelsey (now removed from office) has done. In summary, the Commission filed a case alleging that Bennett wrongly took an appeal. No fact, expert, or former client testified. Those who testified for the Appellant were not for the most part, even cross-examined.
Filings and Briefs:
Former President of the San Antonio Bar Association and former United States Magistrate, Dan Naranjo, posted an Amicus Brief at the 14th Court of Appeals site. (http://www.search.txcourts.gov/Case.aspx?cn=14-14-00470-CV&coa=coa14). It was the Commission for Lawyer Discipline that filed the disbarment lawsuit against Appellant. This was the same party that recommended a probated sentence. Now removed from office, former Juvenile Judge Carmen Kelsey imposed the disbarment sanction after NO witnesses were called by the Commission in the liability phase of the trial or the sanctions phase. There was no evidence of even a grievance being previously filed much less a private or public reprimand being imposed against the Appellant. NO EVIDENCE. It may be helpful to read the entire Brief that Attorney Naranjo filed to understand how far afield this case has gone.
Nearly two dozen amicus briefs have been filed to date and more being added each week. The issues filed in the Appellant’s Brief and addressed in the Commission’s Response are being addressed by the Amici. It is hoped that the Court of Appeals will find the filings to be helpful. The Commission has not had anyone file an Amicus supporting its case. No ethics expert has come close to opining that how the case was presented, the judicial rulings, or the complete lack of evidence is appropriate.
The Commission’s case consisted of the introduction of documents that had been filed in both the district court and the appellate courts. No expert was presented by the Commission to explain how these documents related to any disciplinary rule violations. This was rather unusual since former Juvenile Judge Kelsey had never tried a civil case before. Judge Kelsey had never tried an ethics case before. But based on the Commission’s recommendation and strongly urged by Bersch, she refused to allow Appellant’s five (5) ethics experts testify. When Judge Kelsey had a question about what a supersedeas bond was or who the parties to the litigation were, Assistant Disciplinary Counsel Tim Bersch was eager to provide this information to her. The entire Reporter’s Record and Clerk’s Record are posted at www.ocdc-revealed.com.
If you read the fee agreement (posted at www.ocdc-revealed.com), you will see that it is a 15 page document with the Houston Bar Association Fee Dispute Resolution Committee form attached. The FDRC form says nothing about the arbitration clause being un-appealable. Where the “un” does appear and it is crystal clear that it is subject to the Rules of the HBA FDRC. These rules are further and completely without a doubt to be interpreted (as it clearly states) by the Texas Arbitration Act. This is important because under the TAA, the parties have an absolute right to appeal.
Too much detail and interpretation in the fee agreement for a client to understand? This is where many, including the trial court, lost track of the case. During the negotiations over the fee agreement before the Appellant was hired and the clause involving the arbitration was finalized, Mr. Land was not the Appellant’s client. Three (3) places in the fee agreement, Land was commanded/ordered/recommended to have another attorney review the fee agreement. The Commission has stipulated and agreed that Land hired Appellate Justice Hollis Horton, to review, advise, and approve of the entire fee agreement that included the Arbitration Clause. And he did. Would you not think that if an appellate justice had any qualms about signing a fee agreement that made an arbitration “ un - appealable”, he would tell his client either not to sign or to change the language. The agreement with changes made by Land subject to the approval of his attorney can be found at www.ocdc-revealed.com. Each page of the agreement is signed by Land and you can note the changes Justice Hollis and his client made in the agreement. Appeal rights were protected for all parties and Land noted the changes in the agreement the way his attorney wanted it. To add insult to injury, Commission Attorney Randy Roach informed Appellant’s Counsel, Tom Cunningham that if the “un” had not been included, the Commission would not have been able to file the case. “For the want of a nail….”.
But there is more. A cash bond was posted to protect the amount in question during the appeal by the Appellant. This was not required and like having Justice Hollis Horton read and approve the fee agreement, it was done to protect the client. If an attorney wants to know what is required regarding the use of an arbitration clause in a fee agreement, please read SBOT Ethics Opinion No. 586 (October 2008). Having an outside counsel read the agreement and advise the client regarding the terms and meaning of an arbitration clause is NOT required, if the client is fully informed and made to understand the pros and cons of the arbitration agreement. But the Appellant exceeded the SBOT ethics opinion by mandating Land take the agreement to another attorney. And he did.
Changes Are Needed:
This case may be the stalking horse for what changes need to be made in the Grievance System. There should be an independent study made of what can be improved. Should a complaint be sworn to? Should a judge, who presides over a disbarment case, at least have some civil trial evidence and procedure training from someone besides the OCDC? Should the Attorney who wins a case against the Commission be reimbursed for costs and attorneys’ fees? Should a stronger deferred adjudication system be implemented? Should a fee dispute really be a grievable offense? At the ocdc site, you will see other related cases that show the deficiencies in the grievance system. Your comments and suggestions would be welcomed re. how to improve the grievance system. One should not be disbarred if there is a legitimate fee dispute but Cynthia Renea Weir Nutter, Clarissa Guajardo, and Peyman Momeni, as well as the Appellant should not have to spend a ton of money defending what is not an ethics violation. Post your views on the various Face Book sites that discuss these issues. Let’s work together to help the Texas Supreme Court Grievance Over Sight Committee and the State Bar of Texas Grievance Client Attorney Assistance Program get it right. We now have a new Bar President and new Board of Directors, maybe they will help get it right.
The following article was published by Law360 and it got fairly true to what the case is about. Certain statements from the article, however, need further illumination as noted above. It is being republished for educational purposes and for use in the CLE presentations (3 this year and 3 more scheduled) the Appellant has made to assist the State Bar of Texas understand fee disputes.
“Law360, Houston (April 27, 2015, 7:44 PM ET) -- A San Antonio attorney on Friday filed an amicus brief in the form of a letter of support for Robert S. Bennett of the Bennett Law Firm PC in his disbarment appeal, the latest of 21 such letters from Texas attorneys and other supporters seeking to reinstate Bennett after he was booted for allegedly withholding a roughly $27,000 retainer from a client.
Bennett was disbarred in March of last year, after a judge found the Houston ethics and malpractice attorney violated Rules 1.15 and 3.02 of the Texas Disciplinary Rules of Professional Conduct over the fee dispute with former client Gary O. Land, in which Land accused him of improperly withholding part of a retainer payment and unreasonably delaying resolution of a fee dispute.
Bennett later appealed, calling the disbarment an unjust sanction for his first disciplinary violation, saying that the court far exceeded what the Texas Commission on Lawyer Discipline recommended as appropriate punishment.
Since his appeal in January, Bennett has seen almost a dozen letters filed on his behalf, including Friday's brief from attorney Dan Naranjo, who called Bennett a "forthright and just attorney."
"In the last 35 years, we have worked on cases against each other and with each other in a professional capacity on several occasions," Naranjo said, echoing similar sentiments from 20 other supporting briefs. "In my experience he has always treated clients with respect and professionalism. His law firm is an example of excellence as well as diversity."
Bennett on Monday expressed gratitude for all of the support, which he characterized as a mix of solicited and unsolicited.
“Obviously a lot of people know about the case, and a lot of people feel very strongly about where it is and what’s going on with it,” Bennett told Law360. “I'm very grateful to the attorneys and other people who filed those, and hopefully the court will duly note them.”
Bennett also said he's optimistic about the outcome of the appeal because of the unusual set of circumstances surrounding the judgment.
"When you are in a case in which there's no expert witnesses, no fact witnesses, or former clients to testify against you, that’s a little unusual, and we feel that we’ll prevail,” Bennett said, adding, “To never have a public reprimand or a private reprimand and be disbarred over a fee dispute is a little absurd.”
The Texas Commission for Lawyer Discipline declined to comment on pending litigation.
Land hired Bennett to represent him in a federal investigation and possible civil rights violation, as well as a commercial dispute, signing a retainer and fee agreement that included a binding arbitration clause intended to be unappealable.
He later sought new counsel and requested the return of $35,000 from his retainer, and Bennett counterclaimed in arbitration for $25,000 in unpaid fees on top of the full retainer amount.
The panel awarded Land $27,500 in January 2012 and awarded Bennett nothing for his counterclaim. Land then filed suit in district court to confirm the arbitration award, but Bennett challenged it, claiming the panel committed a gross mistake in determining the reasonableness of the fees he charged Land. Trial and appellate courts confirmed the arbitration and the Texas Supreme Court denied Bennett’s petition for review.
Land brought the matter to the disciplinary committee’s attention during the appellate process and said it was a violation of Texas disciplinary rules for Bennett to have drafted the binding arbitration provision then “dragged on the appeal for three years,” his new lawyer said at the time.
Bennett is represented by Jessica A. Barger of Wright & Close LLP.
The Texas Commission for Lawyer Discipline is represented by Robert M. Roach Jr. and Daniel W. Davis of Roach & Newton LLP, as well as by Linda Acevedo and Timothy R. Bersch of the State Bar of Texas.
The case is Bennett v. Commission for Lawyer Discipline, case no. 14-14-00470-CV in the Court of Appeals for the 14th District of Texas.
--Editing by Patricia K. Cole.”