Texas Lawyer 

Written by: Brenda Sapino Jeffreys

 

After listening to oral argument on Sept. 16 in his disbarment appeal, Robert S. Bennett of Houston said he was "very pleased" with how the proceedings went before the Fourteenth Court of Appeals in Texas.

 

"They understood this wasn't a real violation," Bennett said in assessing the panel of three judges who heard the appeal of his 2014 disbarment.

 

Bennett said he would like the panel consisting of William Boyce, Brett Busby and Marc Brown to reverse the trial judge's judgment, and impose probation if anything in his disciplinary suit instead of disbarment.

 

Bennett, whose practice included defending lawyers from State Bar of Texas disciplinary suits, was disbarred in 2014 by Judge Carmen Kelsey of San Antonio, then judge in the 289th District Court, a "specially assigned judge" who found Bennett violated Texas Disciplinary Rules of Professional Conduct 1.15(d) and 3.02.

 

Rule 1.15(d) covers a lawyer's responsibilities when terminating representation, and Rule 3.02 prohibits a lawyer from taking a position that unreasonably increases the costs or other burdens of the litigation or unreasonably delays resolution.

 

The commission brought the disciplinary suit against Bennett after he appealed an arbitration award in a fee dispute with a client. His fee contract, according to the commission's allegations in Commission for Lawyer Discipline v. Bennett, required an arbitration panel selected by the Houston Bar Association Fee Dispute Committee to handle any disputes arising out of the agreement; the contract further stated that the arbitrator's decision would be "binding, conclusive and nonappealable."

 

Thomas Wright, a partner in Wright & Close of Houston who represents Bennett, asked the court to expeditiously reverse and render the judgment against Bennett because "there's been no violation of either of these rules."

 

Wright told the judges he decided to represent Bennett because other lawyers could put their license at risk simply for filing appeals.

 

"I took this case because if I don't stand up for him, who will stand up for me?" Wright said.

 

Jessica Barger, a partner in Wright & Close, told the court that while Bennett's fee contract with the client did state the arbitration award was not appealable, the entire contract needs to be considered.

 

"You have to harmonize the entire contract," Barger told the court.

 

But Robert "Randy" Roach, a partner in Roach & Newton in Houston and special assistant disciplinary counsel in Bennett, told the court it makes no sense to tell a client in a contract that an arbitration decision is "binding, conclusive and nonappealable" and then maintain it is appealable.

 

He argued that Bennett "flagrantly abused" the contract with the client by appealing.

 

However, Judge Boyce pointed out that lawyers very frequently appeal things to the court that aren't appealable. He wondered if those lawyers should risk disbarment for filing appeals that weren't legitimate, and suggested that if that's the case, "there's a fair number of lawyers walking around town" who fit that description. He added that it is "disconcerting."

 

In response, Roach told the court that lawyers can pursue "hardball tactics" but not when it involves a client.

 

Judge Brown asked Roach what should happen to the judgment if the court decides Bennett violated only one of the disciplinary rules. Roach said disbarment should still stand in that situation.

 

"If you reverse this case, what signal are you sending to the Bar, to the public?" Roach asked the court when summarizing his argument.

 

Wright told the court that if it reverses the judgment calling for disbarment, Bennett should get his license back for "time served" since he's been without the license to practice law for nearly 18 months.

 

"Are we really disbarring a man for making the wrong choice if he can appeal?" Wright asked.

 

Support for Bennett

 

Bennett said he was pleased so many lawyers filed amicus curiae briefs in his case, asking the appeals court to overturn his disbarment. Those lawyers include:

 

•Lillian Hardwick, Austin

•Charles Houssiere III, Houssiere, Durant & Houssiere, Houston

•Nancy Lee Jessee, Pattonville

•Jules L. Laird Jr., The Law Firm of Jules L. Laird Jr., Houston

•David Medearis, Sullins Johnston Rohrbach & Magers, Houston

•Nabil Majed Nachawati II, Fears Nachawati Law Firm, Dallas

•Dan Naranjo, The Law Office of Dan A. Naranjo, San Antonio

•Roshun Phipps, Bickham Law Firm, Houston

•Peter E. Pratt Jr., Peter Pratt Law, Houston

•Rachaelle Reynolds, Rachaelle Reynolds & Associates, Houston

•Gary Roth, Roth Law Group International, Houston

•Bruce Ian Schimmel, Houston

•Sarah Springer, Springer Law Firm, Katy

•David M. Stagner, Sherman

•Christina Stone, Gaughan, Stone, & Thiagarajan, Houston

•Jeffery Wagnon, Wagnon Law Group, Houston

 

Bennett's case has attracted considerable attention in Texas, with more than 1,000 Texas lawyers signing a request of amici curiae in 2014, asking that Kelsey to "attempt to resolve this case by mediation or other final resolution." In July 2014, the Fourteenth Court did order a mediation in the case and temporarily abated the appeal, but the appeal was reinstated in October 2014.

 

At least 30 people, mostly lawyers, attended the argument, and many shook hands with Bennett following the court session.