10009202
TRANSCRIPT
No. 10-0092 _______________
In The
Supreme Court of Texas _______________
JASPER C. ROWE,
APPELLANT V.
COMMISSION FOR LAWYER DISCIPLINE, APPELLEE
_______________
On Appeal from the Board of Disciplinary Appeals Of the Supreme Court of Texas
BODA No. 42935 _______________
BRIEF OF APPELLEE
COMMISSION FOR LAWYER DISCIPLINE _______________
LINDA A. ACEVEDO CHIEF DISCIPLINARY COUNSEL CYNTHIA CANFIELD HAMILTON SENIOR APPELLATE COUNSEL OFFICE OF THE CHIEF DISCIPLINARY COUNSEL COMMISSION FOR LAWYER DISCIPLINE STATE BAR OF TEXAS P.O. BOX 12487 AUSTIN, TEXAS 78711-2487 512.427.1350; 1.877.953.5535 FAX: 512.427.4167
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IDENTITY OF PARTIES AND COUNSEL
APPELLANT
JASPER C. ROWE P.O. Box 141954 Irving, Texas 75014 Telephone: 469.231.1920 Fax: 214.889.3800
APPELLEE
COMMISSION FOR LAWYER DISCIPLINE P.O. Box 12487 Austin, Texas 78711
COUNSEL FOR APPELLEE
LINDA A. ACEVEDO Chief Disciplinary Counsel CYNTHIA CANFIELD HAMILTON Senior Appellate Counsel State Bar of Texas P.O. Box 12487 Austin, Texas 78711 Telephone: 512.427.1350; 1.877.953.5535 Fax: 512.427.4167
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TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL ................................................................................... i TABLE OF CONTENTS .......................................................................................................... ii INDEX OF AUTHORITIES ..................................................................................................... iv STATEMENT OF THE CASE .................................................................................................. ix ISSUES PRESENTED ............................................................................................................... x
Is it an abuse of discretion for a trial court to deny a motion for continuance filed less than two days prior to trial where the motion does not set forth a compelling reason for a last-minute continuance and the motion does not satisfy the prerequisites for such a motion? ............................................................... x Where an attorney acts as the independent executor for an estate as well as the attorney for the independent executor, is the attorney engaged in pro se representation? ........................................................................................................... x Is an attorney’s conduct immune to discipline due to the fact that the conduct occurs during the attorney’s representation of himself? ............................................ x Does a trial court commit reversible error by excluding evidence where (1) the proponent fails to make an offer of proof or bill of exceptions and (2) the evidence is not controlling on a material issue? ........................................................ x Is recusal required merely because a party’s witness is an acquaintance of the judge? ......................................................................................................................... x Must an evidentiary panel always include at least one minority member if the respondent attorney is a minority? ............................................................................. x
STATEMENT OF FACTS ......................................................................................................... 1 SUMMARY OF THE ARGUMENT ............................................................................................ 5
iii
ARGUMENT .......................................................................................................................... 7 I. Standard of review .................................................................................................... 7 II. Part II of the Texas Rules of Disciplinary Procedure governs administrative
proceedings in attorney disciplinary matters ............................................................ 7 III. The Evidentiary Panel did not improperly consider the findings of the
probate court ........................................................................................................... 10 IV. The denial of Rowe’s motion for continuance was not an abuse of discretion
because a trial court has broad latitude to determine a motion for continuance and Rowe failed to provide proper documentation to support his request for a last-minute continuance ..................................................................... 11
V. The Evidentiary Panel did not erroneously sanction Rowe for conduct that
took place during his representation of himself because the record makes it clear that the conduct at issue actually took place during Rowe’s representation of the Miller Estate and because even a lawyer engaged in pro se representation is subject to the disciplinary rules ........................................ 15
VI. The Judgment of Disbarment should not be reversed on the basis of Rowe’s
arguments regarding the exclusion of testimony because Rowe failed to demonstrate to the Panel what the substance of the testimony would have been; the testimony was not controlling on a material issue; and it is not likely that the exclusion of the testimony, even if erroneous, resulted in the rendition of an improper judgment. ........................................................................ 17
VII. Rowe waived his argument regarding the weight of the evidence by failing
to brief the issue properly ....................................................................................... 22 VIII. Contrary to Rowe’s argument, a panel member’s acquaintance with a
witness called by the Commission did not require the panel member’s recusal ..................................................................................................................... 23
IX. There is no requirement for an evidentiary panel to include at least one
member who is in the same racial minority as the respondent attorney ................ 27 PRAYER ............................................................................................................................. 28 CERTIFICATE OF SERVICE .................................................................................................. 28 APPENDIX .......................................................................................................................... 30
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CASES INDEX OF AUTHORITIES
PAGE
Cohn v. Comm’n for Lawyer Discipline, 979 S.W.2d 694 (Tex.App.—Houston [14th
Dist.] 1998, no pet.) ........................ 16
Condry v. Mantooth, 460 S.W.2d 513 (Tex.Civ.App.—Houston [1st
Dist.] 1970, no writ) ................... 12
Diaz v. Comm’n for Lawyer Discipline, 953 S.W.2d 435 (Tex.App.—Austin 1997, no writ) ............................................. 17 Dolenz v. State Bar of Tex., 72 S.W.3d 385 (Tex.App.—Dallas 2001, no pet.) ............... 23 Hawthorne v. Guenther, 917 S.W.2d 924 (Tex.App.—Beaumont 1996, writ denied) ................................. 12 Humphrey v. Ahlschlager, 778 S.W.2d 480 (Tex.App.—Dallas 1989, no writ) .............. 12 In re Birdwell, 20 S.W.3d 685 (Tex. 2000) ......................................................................... 7 In re Estate of Miller, 243 S.W.3d 831 (Tex.App.—Dallas 2008, no pet.) ...................... 15 In re N.R.C., 94 S.W.3d 799 (Tex.App.—Houston [14th
Dist.] 2002, pet. denied) .... 18, 20
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) ............................................... 10 Meachum v. Comm’n for Lawyer Discipline, 36 S.W.3d 612 (Tex.App.—Dallas 2000, pet. denied). .................................. 10, 23 Olivares v. State, 693 S.W.2d 486 (Tex.App.—San Antonio 1985, writ dism’d) ............ 13 Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35 (Tex. 1998) ...................... 17 Rector v. Tex. Alcoholic Beverage Comm’n, 599 S.W.2d 800 (Tex. 1980) ...................... 27 San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323 (Tex.App.—Houston [14th
Dist.] 2005, no pet.) ........................ 22
Smith v. Comm’n for Lawyer Discipline, 42 S.W.3d 362 (Tex.App.—Houston [14th Dist.] 2001, no pet.) ................... 22, 23 State v. Crank, 666 S.W.2d 91 (Tex. 1984) ...................................................................... 12
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Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608 (Tex. 2000) ......................................... 18, 21 Vickery v. Vickery, 999 S.W.2d 342 (Tex. 1999) ........................................................ 12, 13 Worldpeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451 (Tex.App.—Houston [14th
Dist.] 2005, pet. denied) .................. 22
Yowell v. Piper Aircraft Corp., 703 S.W.2d 630 (Tex. 1986) ........................................... 12 STATUTES AND RULES
PAGE
TEX. DISCIPLINARY R. PROF. COND. 1.04(a) ........................................................... 20 TEX. DISCIPLINARY R. PROF. COND. 8.04(a)(1) ...................................................... 16 TEX. GOV’T CODE ANN., tit. 2, subtit. G app. A (Vernon 2005) ................................ viii TEX. GOV’T CODE ANN. § 81.073 (Vernon 2005) ......................................................... 7 TEX. GOV’T CODE ANN. § 81.074 (Vernon 2005) ......................................................... 7 TEX. GOV’T CODE ANN. § 81.075 (Vernon 2005) ......................................................... 8 TEX. GOV’T CODE ANN. § 81.075(a) (Vernon 2005) .................................................... 8 TEX. GOV’T CODE ANN. § 81.075(b)(1) (Vernon 2005) ............................................... 8 TEX. GOV’T CODE ANN. § 81.075(b)(2) (Vernon 2005) ............................................... 8 TEX. R. APP. P. 33.1 ........................................................................................................ 10 TEX. R. APP. P. 33.1(a) .................................................................................................... 27 TEX. R. APP. P. 38.1(g)...................................................................................................... 1 TEX. R. APP. P. 38.1(h).............................................................................................. 10, 22 TEX. R. APP. P. 61.1 ........................................................................................................ 21 TEX. R. CIV. P. 18a(a) ............................................................................................... 24, 25 TEX. R. CIV. P. 18a(c) ..................................................................................................... 24 TEX. R. CIV. P. 18a(d) ..................................................................................................... 25 TEX. R. CIV. P. 18a(e) ..................................................................................................... 25 TEX. R. CIV. P. 18a(f) ...................................................................................................... 25 TEX. R. CIV. P. 18b(2) ..................................................................................................... 26 TEX. R. DISCIPLINARY P. 1.06U .................................................................................... 8 TEX. R. DISCIPLINARY P. 1.06Y .................................................................................... 9 TEX. R. DISCIPLINARY P. 2.01-2.28 ............................................................................... 7 TEX. R. DISCIPLINARY P. 2.06 ......................................................................... 23, 25, 26 TEX. R. DISCIPLINARY P. 2.10 ................................................................................... 7, 8 TEX. R. DISCIPLINARY P. 2.12 ....................................................................................... 8 TEX. R. DISCIPLINARY P. 2.13 ....................................................................................... 8
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TEX. R. DISCIPLINARY P. 2.14 ....................................................................................... 8 TEX. R. DISCIPLINARY P. 2.15 ....................................................................................... 8 TEX. R. DISCIPLINARY P. 2.17 ....................................................................................... 9 TEX. R. DISCIPLINARY P. 2.17L .................................................................................... 9 TEX. R. DISCIPLINARY P. 2.17M ................................................................................... 9 TEX. R. DISCIPLINARY P. 2.17P .................................................................................... 9 TEX. R. DISCIPLINARY P. 2.24 ....................................................................................... 9 TEX. R. DISCIPLINARY P. 2.28 ................................................................................... 7, 9 TEX. R. DISCIPLINARY P. 7.11 ................................................................................... 7, 9 TEX. R. EVID. 103(a)(2) .................................................................................................. 18
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No. 10-0092 _______________
In The
Supreme Court of Texas _______________
JASPER C. ROWE,
APPELLANT V.
COMMISSION FOR LAWYER DISCIPLINE, APPELLEE
_______________
On Appeal from the Board of Disciplinary Appeals Of the Supreme Court of Texas
BODA No. 42935 _______________
BRIEF OF APPELLEE
COMMISSION FOR LAWYER DISCIPLINE _______________
TO THE HONORABLE SUPREME COURT OF TEXAS: Appellee, the Commission for Lawyer Discipline, submits this brief in response to
the brief filed by Appellant, Jasper C. Rowe. For clarity, Appellant will be referred to as
“Rowe” and Appellee as “the Commission.” The Board of Disciplinary Appeals will be
referred to as “BODA.” Any reference in this brief to any matter contained in the record
before the Court shall be labeled BODA CR (clerk’s record filed by Board of
Disciplinary Appeals), CR (clerk’s record from evidentiary proceeding) RR (reporter’s
record from evidentiary proceeding), Pet. Ex. (Petitioner’s exhibit to reporter’s record),
or Resp. Ex. (Respondent’s exhibit to reporter’s record). All references to rules are
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references to the Texas Disciplinary Rules of Professional Conduct1
1Reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G app. A (Vernon 2005).
unless otherwise
noted.
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STATEMENT OF THE CASE
Type of Proceeding: Attorney Discipline Petitioner/Appellee: The Commission for Lawyer Discipline Respondent/Appellant: Jasper C. Rowe Evidentiary Panel: State Bar of Texas District 06A-B2 Judgment: Disbarment; Attorneys’ Fees and Expenses of $2,808.20 Appellate Court: Board of Disciplinary Appeals (BODA) Disposition on Appeal: Judgment affirmed Violations found (Texas Disciplinary Rules of Professional Conduct): Rule 1.01(b)(1): [A lawyer shall not neglect a legal matter
entrusted to the lawyer.] Rule 1.04(a) [A lawyer shall not enter into an arrangement
for, charge, or collect an illegal fee or unconscionable fee.] Rule 1.06(b)(2) [A lawyer shall not represent a person if the
representation of that person reasonably appears to be or become adversely limited by the lawyer’s or law firm’s responsibilities to another client or to a third person or by the lawyer’s or law firm’s own interests.]
Rule 8.04(a)(3): [A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation]
Rule 8.04(a)(11) [A lawyer shall not engage in the practice
of law when the lawyer is on inactive status or when the lawyer’s right to practice has been suspended or terminated.]
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ISSUES PRESENTED
1. Is it an abuse of discretion for a trial court to deny a motion for continuance filed less than two days prior to trial where the motion does not set forth a compelling reason for a last-minute continuance and the motion does not satisfy the prerequisites for such a motion?
2. Where an attorney acts as the independent executor for an estate as well as the
attorney for the independent executor, is the attorney engaged in pro se representation?
3. Is an attorney’s conduct immune to discipline due to the fact that the conduct
occurs during the attorney’s representation of himself?
4. Does a trial court commit reversible error by excluding evidence where (1) the proponent fails to make an offer of proof or bill of exceptions and (2) the evidence is not controlling on a material issue?
5. Is recusal required merely because a party’s witness is an acquaintance of the
judge? 6. Must an evidentiary panel always include at least one minority member if the
respondent attorney is a minority?
1
STATEMENT OF FACTS2
On August 6, 1985, G.T. Miller executed a will which named Rowe as
independent executor of his estate (CR 437; Pet. Ex. 1). In a section entitled
“EXECUTOR’S FEES,” the will provided only for the “reimbursement of actual,
reasonable out-of-pocket expenses” (Pet. Ex. 1). G.T. Miller died on October 9, 2002
(CR 437).
On January 6, 2003, Cynthia Calhoun, Dallas County Clerk, issued letters
testamentary empowering Rowe to act as independent executor of the Miller estate (Pet.
Ex. 6). On the same date, Rowe signed a letter to himself discussing Rowe’s planned
legal representation of the estate and setting forth the financial and other terms under
which he would provide legal services to the estate, including his plan to collect legal
fees equal to at least one-third of the value of the estate (Pet. Ex. 6).3
In June and July 2006, an application to remove Rowe as independent executor of
the Miller estate, which had been filed by Madison Miller, primary beneficiary of the
Miller estate, was heard (Pet. Ex. 6). At the conclusion of the hearing, the probate judge
announced his findings that Rowe should be removed as independent executor, all fees
received by Rowe should be returned to the estate, and a copy of the hearing transcript
should be delivered to the appropriate grievance committees and to the Commission (Pet.
Ex. 6).
2 Much of Rowe’s Statement of Facts should be disregarded because it is not supported by record references. TEX. R. APP. P. 38.1(g). 3 Rowe had signed two similar letters shortly after G.T. Miller died (Pet. Ex. 2). One was addressed to Madison Miller, primary beneficiary of the estate (Pet. Ex. 2). The other was addressed to Rowe himself (Pet. Ex. 2).
2
On August 10, 2006, the probate judge entered findings of fact and conclusions of
law in the removal proceeding (Pet. Ex. 2). The findings included:
1. “Jasper C. Rowe took from the Estate sums in excess of $100,000.00, claiming to be entitled to those fees as attorney for the Estate. He further claimed to be entitled to take another $100,000.00 in fees from the Estate when sufficient property of the Estate had been sold to generate income to pay those fees.” 2. “The Court finds that Jasper C. Rowe did not have the right to take the fees he has taken from the Estate and has no right to recover any further amount of fees.”
3. “Jasper Rowe, acting as executor of the Estate, entered into a ‘contract’ with himself under the terms of which he would act as attorney for the Estate and collect a fee of one-third the value of the Estate. The Court finds that the Estate did not need to hire an attorney because Jasper Rowe, executor, did not need legal advice to properly administer the Estate. The Court finds that Jasper Rowe’s actions in hiring himself and agreeing to pay himself a fee of one-third of the value of the Estate constitute gross mismanagement of the Estate. The Court further finds that when Jasper Rowe, as executor, paid himself based on the alleged contract for the services of Jasper Rowe as attorney, that this payment constituted a clear and gross breach of his fiduciary duties to the Estate, and that all payments made by Jasper Rowe to himself from the assets of the Estate constitute gross mismanagement of the Estate.”
4. “The Court further finds that the fee charged by Jasper Rowe as attorney was unconscionable and grossly excessive; and that the reasonable value of necessary services to completely administer and close the Estate was less than $5,000.00.”
5. “The Court finds that Jasper Rowe has embezzled from the Estate by taking at least $100,000.00 from the Estate without authority or justification.”
6. “The Court finds that Jasper Rowe gave $25,000.00 of the Estate’s money to one of Jasper Rowe’s clients and did not receive either a promissory note, collateral, or an enforceable promise to repay the money in return. The Court finds that in doing so, Jasper Rowe was guilty of a gross conflict interest and of gross mismanagement of the affairs of the Estate.”
(App. 2; Pet. Ex. 2).
The probate judge signed an order removing Rowe as independent executor on
August 31, 2006 (Pet. Ex. 2). Rowe appealed the probate judge’s findings, but his appeal
3
was unsuccessful (Pet. Ex. 7). The Fifth Court of Appeals affirmed the probate judge’s
order of removal on January 9, 2008 (Pet. Ex. 7).
By letter dated February 7, 2007, Rowe was notified of the disciplinary allegations
which were being pursued by the Chief Disciplinary Counsel as a result of Rowe’s
conduct in connection with the Miller estate (CR 1-2). Rowe elected to have the
disciplinary allegations heard by an evidentiary panel rather than a district court (CR 5).
An evidentiary panel was assigned, and Rowe was provided with notice of the identities
of the panel members by letter dated March 16, 2007 (CR 11-14). The Commission filed
an evidentiary petition on April 30, 2007 (CR 15). Rowe filed an answer on May 31,
2007 (CR 27).
An evidentiary hearing was initially scheduled for November 8, 2007 (CR 64).
However, on October 5, 2007, the Commission requested a continuance because Rowe
had failed to respond to discovery requests (CR 86-89). The Panel Chair granted the
continuance on October 8, 2007 (CR 116).
Rowe’s evidentiary hearing was rescheduled for May 8, 2008 (CR 290). Rowe
received notice of the hearing date on March 19, 2008 (CR 291).
On the evening of May 5, 2008, Rowe filed a motion for continuance based on his
wife’s serious illness (CR 369-76). The motion did not explain why the wife’s illness
necessitated a continuance or explain why Rowe had waited until the last minute to
request the continuance (CR 369-76). It also did not include an affidavit from a medical
provider (CR 369-76).
4
The Commission opposed Rowe’s motion for continuance (CR 377-78). The
motion was denied on May 6, 2008 (CR 394). On the evening of May 6, 2008, Rowe
filed a motion for reconsideration of his motion for continuance (CR 398-400). The
Commission opposed the motion (CR 407-09), and it was denied on May 7, 2008 (CR
417).
Rowe’s evidentiary hearing took place on May 8, 2008 (RR 1). After a full
hearing, the Evidentiary Panel disbarred Rowe (CR 436-41). Rowe appealed his
disbarment to BODA (BODA CR 1-2). BODA affirmed the judgment of disbarment on
January 17, 2010 (BODA CR 331).
5
SUMMARY OF THE ARGUMENT
Rowe seeks the reversal of his disbarment based on seven arguments which have
no merit. He begins by arguing that the Evidentiary Panel improperly applied the
doctrine of res judicata. Rowe waived this issue by failing to raise it below. In addition,
there is nothing in the record to indicate the Panel applied the doctrine of res judicata in
this case.
Rowe next argues that the Evidentiary Panel erred by failing to grant his request
for a last-minute continuance. Contrary to Rowe’s argument, the denial of his motion for
continuance was proper because he did not satisfy the specific requirements that apply to
the type of continuance he requested. He also waited until just before the hearing date to
request a continuance, and he did not present a compelling reason for granting a last-
minute continuance. Therefore, the decision to deny the requested continuance was
neither arbitrary nor unreasonable.
Rowe next complains that the Evidentiary Panel incorrectly sanctioned him for
conduct which occurred during pro se representation. However, the record makes it clear
that Rowe was not engaged in pro se representation. The conduct at issue occurred
during his representation of the Miller estate. And even if Rowe had been representing
himself, he would not be immune to discipline because the disciplinary rules do not
exempt conduct that occurs during pro se representation.
Rowe also complains about the Panel Chair’s decision to exclude testimony
offered by Rowe. Rowe’s complaints cannot succeed because he did not make an offer
of proof or bill of exceptions to show the substance of the excluded testimony.
6
Moreover, even if Rowe is correct in his belated assertion that the testimony would have
shown the testator approved Rowe’s unconscionable fee, its exclusion would not
constitute reversible error because such testimony would not have been controlling on a
material issue. Even a client’s approval of an unconscionable fee would not save a
lawyer from discipline for charging or collecting such a fee.
Rowe’s complaints about the weight of the evidence cannot succeed because he
did not brief them adequately. To brief this issue properly, Rowe would have had to
discuss the evidence in question and explain why he believed it did not support the
judgment. He also would have had to cite to the record and to relevant authority. Rowe
did not take any of these steps.
Rowe’s complaints regarding the Panel Chair’s refusal to recuse one member of
the Panel are untenable as well. The Panel Chair properly took evidence and heard
argument once Rowe complained about the member’s acquaintance with a Commission
witness. Because the evidence and argument failed to demonstrate a valid basis for
recusal, the Chair properly overruled Rowe’s objection.
Finally, Rowe argues that the judgment must be reversed because the Panel did not
include a member who is a minority. Rowe offers no legal authority supporting his
position that, if a respondent attorney is a minority, then at least one of the members of
the evidentiary panel assigned to preside over the disciplinary action must be a minority.
He also waited until nearly two months after his evidentiary hearing to raise this issue.
Therefore, like his other arguments, this one should be disregarded, and the Judgment of
Disbarment should be affirmed in all respects.
7
I. Standard of review.
ARGUMENT
This Court reviews BODA's decisions under the substantial evidence rule. TEX. R.
DISCIPLINARY P. 2.28, 7.11. Under the substantial evidence rule, BODA’s legal
conclusions are reviewed de novo. In re Birdwell, 20 S.W.3d 685, 687 (Tex. 2000).
Some issues raised by Rowe, such as the denial of his motion for continuance, are
determined under a more deferential standard. Where a more deferential standard applies
to an issue, the standard will be discussed in conjunction with the full discussion of the
issue.
II. Part II of the Texas Rules of Disciplinary Procedure governs administrative proceedings in attorney disciplinary matters.
Attorney disciplinary proceedings generally commence with the filing of a
grievance against an attorney. See generally TEX. R. DISCIPLINARY P. 2.01-2.28 (App.
6). Once a grievance is filed, the Chief Disciplinary Counsel (CDC) must determine
whether to classify the grievance as (1) a “complaint,” which alleges conduct that, if true,
constitutes professional misconduct, or (2) an “inquiry,” which alleges conduct that, even
if true, does not constitute professional misconduct. TEX. GOV’T CODE ANN. § 81.073
(Vernon 2005); TEX. R. DISCIPLINARY P. 2.10. If the grievance is classified as an
inquiry, it is dismissed. TEX. GOV’T CODE ANN. § 81.074 (Vernon 2005); TEX. R.
DISCIPLINARY P. 2.10. If, however, a grievance is classified as a complaint, a copy of the
grievance is sent to the respondent attorney with notice that the respondent attorney must
8
respond to the allegations within thirty days after receipt of the notice. TEX. GOV’T CODE
ANN. § 81.075 (Vernon 2005); TEX. R. DISCIPLINARY P. 2.10.
For every grievance classified as a complaint, the CDC must determine whether
there is “just cause” no later than sixty days after the deadline for the respondent attorney
to respond to the allegations. TEX. GOV’T CODE ANN. § 81.075(a) (Vernon 2005); TEX.
R. DISCIPLINARY P. 2.12. “Just cause” is defined as “such cause as is found to exist upon
a reasonable inquiry that would induce a reasonably intelligent and prudent person to
believe that an attorney either has committed an act or acts of Professional Misconduct
requiring that a Sanction be imposed, or suffers from a Disability. . . .” TEX. R.
DISCIPLINARY P. 1.06U.
If the CDC determines there is no just cause, the CDC places the complaint on a
dismissal docket so that it may be presented to an evidentiary panel (a designated panel
of a district grievance committee) with a recommendation for dismissal. TEX. GOV’T
CODE ANN. § 81.075(b)(1) (Vernon 2005); TEX. R. DISCIPLINARY P. 2.13. On the other
hand, if the CDC determines there is just cause, the respondent attorney is provided with
an election notice, which gives notice of the alleged violations and an opportunity to
choose whether to have the allegations heard in district court or in an administrative
proceeding before an evidentiary panel. TEX. GOV’T CODE ANN. § 81.075(b)(2) (Vernon
2005); TEX. R. DISCIPLINARY P. 2.14, 2.15.
Unless the respondent attorney timely elects to proceed in district court, the
disciplinary matter must be assigned to an evidentiary panel for a hearing. TEX. R.
DISCIPLINARY P. 2.15. Within fifteen days of the earlier of the date that the respondent
9
attorney affirmatively elects to have the disciplinary matter heard by an evidentiary panel
or the day following the deadline for election, the chair of a grievance committee with
proper venue over the matter must appoint an evidentiary panel. TEX. R. DISCIPLINARY
P. 2.17.
The appointed evidentiary panel presides over the disciplinary matter and
generally functions as an administrative tribunal. See generally TEX. R. DISCIPLINARY P.
2.17. The allegations of misconduct are tried in an evidentiary hearing during which the
Commission and the respondent attorney offer evidence, examine witnesses, and present
argument. TEX. R. DISCIPLINARY P. 2.17L. The Commission has the burden of proving
the allegations by a preponderance of the evidence. TEX. R. DISCIPLINARY P. 2.17M.
After the evidentiary hearing, the evidentiary panel must issue a judgment within
thirty days. TEX. R. DISCIPLINARY P. 2.17P. If the evidentiary panel determines that
misconduct occurred, the judgment includes findings of fact and conclusions of law and
identifies the sanction(s) to be imposed. Id. Available sanctions include disbarment,
suspension, probation of suspension, public reprimand, private reprimand, restitution,
attorneys' fees, and direct expenses. TEX. R. DISCIPLINARY P. 1.06Y.
Either party may appeal an evidentiary panel's judgment to BODA under the
substantial evidence standard of review. TEX. R. DISCIPLINARY P. 2.24. BODA's
decision may be appealed to this Court. TEX. R. DISCIPLINARY P. 2.28, 7.11.
10
III. The Evidentiary Panel did not improperly consider the findings of the probate court.
Rowe first argues that the Evidentiary Panel improperly “applied res judicata
effect” to the probate court’s findings of fact (Appellant’s Br. 22). Rowe did not raise
this issue at any time in the proceedings below, nor did he raise it with BODA. As a
result, Rowe has waived the issue. See TEX. R. APP. P. 33.1 (requiring proper
presentation of issue to trial court before issue may be raised on appeal); Mack Trucks,
Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006) (holding that reviewing court may not
consider issues not properly raised by party except for fundamental error and
fundamental error exists only where face of record shows (1) trial court lacked
jurisdiction or (2) public interest is directly and adversely affected).
Rowe also has waived the issue by failing to brief it properly. His entire
discussion of the issue consists of six sentences with citations to only two cases, both of
which are of nebulous significance. He wholly fails to cite to the record. See TEX. R.
APP. P. 38.1(h) (requiring that appellate brief “contain a clear and concise argument for
the contentions made, with appropriate citations to authorities and to the record”);
Meachum v. Comm’n for Lawyer Discipline, 36 S.W.3d 612, 616 (Tex.App.—Dallas
2000, pet. denied) (finding waiver where appellant’s argument was wholly conclusory
and without substantive analysis, discussion, or citation to relevant authority).
And even had Rowe not waived the issue, it is without merit. The Evidentiary
Panel did not treat the probate court’s findings as if they were binding due to the doctrine
of res judicata. The Panel conducted a full hearing on the merits with regard to every
11
finding of misconduct cited in the judgment. Rowe does not offer a single cite to the
record to show otherwise. Rowe’s first issue should be overruled.
IV. The denial of Rowe’s motion for continuance was not an abuse of discretion because a trial court has broad latitude to determine a motion for continuance and Rowe failed to provide proper documentation to support his request for a last-minute continuance.
Late in the evening on May 5, 2008, Rowe filed a motion requesting that the
evidentiary hearing set for May 8, 2008, be continued (CR 381-88). In the motion, Rowe
stated that he would be unable to attend the hearing because his seriously ill wife could
not be left alone (CR 381). Rowe offered no other basis for the requested continuance
(CR 381-82).
Late in the evening on May 6, 2008, shortly after his motion for continuance was
denied, Rowe filed a motion for reconsideration of his motion for continuance (CR 398-
400). In the motion for reconsideration, Rowe stated for the first time that he had been
unable to prepare for his evidentiary hearing due to his wife’s illness.
As he argued before BODA, Rowe now argues that the evidentiary panel's denial
of his request for a continuance violated his due process rights because his wife’s illness
prevented him from preparing for his evidentiary hearing and because he did not have
twenty days to respond to the Commission’s amended evidentiary petition.4
4 Rowe appears to have mistakenly believed he was required to file an answer to the amended evidentiary petition. The procedural rules do not require a response to an amended petition.
However,
Rowe’s original motion for continuance did not state that his wife’s illness prevented him
from preparing for the hearing, and neither his original motion nor his motion for
12
reconsideration stated that he needed additional time to respond to the amended
evidentiary petition.
The denial of a request for a continuance cannot not provide a valid basis for
overturning an administrative body’s action against a professional license unless the
denial was an abuse of discretion. State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984). An
abuse of discretion takes place only where it is clear from the record that the trial court
acted in an arbitrary and unreasonable manner and thereby disregarded the rights of a
party. Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986); Hawthorne v.
Guenther, 917 S.W.2d 924, 929 (Tex.App.—Beaumont 1996, writ denied). In the instant
matter, there is no indication in the record that the Evidentiary Panel acted in an arbitrary
or unreasonable manner or disregarded Rowe’s rights. Their denial of Rowe’s request for
a continuance was reasonable under the circumstances.
First, Rowe’s motion for continuance did not satisfy the requirements that apply to
such a motion. When a motion for continuance is based on the absence of a party, the
requirements of Rule 252 of the Texas Rules of Civil Procedure must be satisfied.
Hawthorne, 917 S.W.2d at 929. Rowe’s motion did not satisfy the requirements of Rule
252 because it did not show that Rowe was needed to provide material testimony and that
there was no lack of diligence in attempting to secure the testimony. Id. The mere
absence of a party does not automatically entitle the party to a continuance. Vickery v.
Vickery, 999 S.W.2d 342, 362 (Tex. 1999); Humphrey v. Ahlschlager, 778 S.W.2d 480,
483 (Tex.App.—Dallas 1989, no writ); Condry v. Mantooth, 460 S.W.2d 513
(Tex.Civ.App.—Houston [1st Dist.] 1970, no writ).
13
In addition, although the alleged reason for Rowe’s inability to appear was his
wife’s ill health, the motion was not supported by the affidavit of a doctor; only copies of
hospital admission records were attached, and those records did not show that a
continuance was necessary due to the wife’s hospitalization. See Vickery, 999 S.W.2d at
363 (holding that TRCP 251 does not allow continuance to be granted except (1) where
movant demonstrates sufficient cause supported by affidavit, (2) by consent of parties, or
(3) by operation of law); Olivares v. State, 693 S.W.2d 486, 490 (Tex.App.—San
Antonio 1985, writ dism’d) (holding that without medical affidavit to support motion for
continuance, appellate court cannot hold that failure to grant continuance was abuse of
discretion).
Not only did Rowe’s motion fail to comply with the specific requirements for
continuance motions, it also was filed at the last minute and did not articulate a valid
basis for a last-minute continuance. Rowe complains that the Commission’s trial counsel
purported to agree to the continuance but then, once his motion for continuance was filed,
unexpectedly opposed it. The record clarifies that the Commission’s trial counsel sent a
letter to Rowe on April 24, 2008, telling Rowe that a letter from a doctor should
accompany his motion for continuance (CR 334). The April 24th
However, Rowe waited nearly two weeks to file his motion for continuance, which
was faxed to the Commission’s trial counsel only two days before the evidentiary hearing
letter makes it clear that
the Commission’s trial counsel had spoken with Rowe and was under the impression that
a continuance was needed because Rowe’s wife was in the hospital and that a motion for
continuance would be filed without delay.
14
was scheduled to begin (CR 369-76). His failure to file the motion sooner created the
impression that he no longer needed a continuance and the evidentiary hearing would
begin on schedule.
Moreover, Rowe’s wife was no longer in the hospital at the time the motion was
filed. In the motion, Rowe claimed that he needed the continuance because his wife
could not be left alone, but he also indicated that she was receiving professional home
healthcare. And Rowe failed to state that there was no one else available to care for her
in his absence. Thus, the motion did not aver facts sufficient to justify a last-minute
continuance, and the decision to deny the continuance was reasonable.
Under the circumstances, BODA correctly declined to reverse the judgment based
on Rowe’s arguments regarding his motion for continuance. The motion for continuance
did not satisfy the procedural prerequisites for such a motion. The motion also did not
articulate a compelling reason for granting a last-minute continuance, especially since
Rowe clearly was aware of the relevant circumstances well before he finally filed his
motion. Due to Rowe’s failure to file a timely motion, the Commission prepared to
proceed and, therefore, would have been prejudiced by the granting of the continuance.
Simply put, the record provides a valid basis for the decision to deny the motion
for continuance, and its denial cannot serve as a basis for reversing the judgment.
15
V. The Evidentiary Panel did not erroneously sanction Rowe for conduct that took place during his representation of himself because the record makes it clear that the conduct at issue actually took place during Rowe’s representation of the Miller estate and because even a lawyer engaged in pro se representation is subject to the disciplinary rules.
Rowe next argues that the Evidentiary Panel had no jurisdiction to sanction him
because he was representing himself. This argument is without merit because the facts
show that Rowe actually represented the interests of the Miller estate. He was not
representing himself during the time in question. Moreover, Rowe would not be immune
from discipline even if his misconduct had occurred in the course of pro se
representation.
It is undisputed that Rowe served as independent executor of the Miller estate. It
also is undisputed that Rowe, as independent executor, hired himself as attorney and paid
the resulting attorneys’ fees from estate funds.
During his evidentiary hearing, Rowe testified that the services for which he was
compensated included drafting two applications for probate, appearing before the probate
court on behalf of the estate, defending a lawsuit against the estate, and defending an
application to remove the executor (RR 66). Based on these facts, Rowe obviously
represented the interests of the Miller estate. He was not acting in a pro se capacity.
In addition, the opinion from the Fifth Court of Appeals in the action to remove
Rowe as executor of the Miller estate identifies Rowe as “the attorney for the estate.” In
re Estate of Miller, 243 S.W.3d 831, 835, 841 (Tex.App.—Dallas 2008, no pet.).
Similarly, the findings of fact entered by the trial court in the removal action show that
the trial court found Rowe to be the attorney for the estate. Those findings state that
16
Rowe entered into a contract with himself “under the terms of which he would act as
attorney for the Estate” (App. 2; Pet. Ex. 2). The findings also state that Rowe “took
from the Estate sums in excess of $100,000.00, claiming to be entitled to those fees as
attorney for the Estate” (App. 2; Pet. Ex. 2).
Perhaps most importantly, the record includes numerous documents wherein Rowe
refers to himself as attorney for the estate (App. 3; Pet. Ex. 2). Thus, Rowe himself
provided strong evidentiary support for the Panel to find that, rather than acting in a pro
se capacity, Rowe acted as attorney for the Miller estate.
Finally, even if Rowe’s misconduct had occurred in the course of pro se
representation, he still would be subject to the disciplinary rules and, therefore, could be
sanctioned by an evidentiary panel. Although the usual disciplinary case against an
attorney involves the attorney’s representation of another person, the disciplinary rules
make it clear that a lawyer may be guilty of violating the disciplinary rules regardless of
whether his conduct took place in the course of a client-lawyer relationship. See TEX.
DISCIPLINARY R. PROF. COND. 8.04(a)(1) (prohibiting lawyer from violating the
disciplinary rules or knowingly assisting or inducing another person to do so or doing so
through the acts of another person “whether or not such violation occurred in the course
of a client-lawyer relationship”). This rule makes it clear that a pro se attorney is not free
to violate the rules that regulate his professional conduct merely because he is engaged in
the representation of himself rather than the representation of another. Cohn v. Comm’n
for Lawyer Discipline, 979 S.W.2d 694, 697 (Tex.App.—Houston [14th Dist.] 1998, no
17
pet.); Diaz v. Comm’n for Lawyer Discipline, 953 S.W.2d 435, 438 (Tex.App.—Austin
1997, no writ).
For these reasons, BODA correctly overruled Rowe’s argument that, because
Rowe represented himself, the Evidentiary Panel had no jurisdiction to sanction Rowe’s
conduct. This Court, too, should overrule Rowe’s argument.
VI. The Judgment of Disbarment should not be reversed on the basis of Rowe’s arguments regarding the exclusion of testimony because Rowe failed to demonstrate to the Panel what the substance of the testimony would have been; the testimony was not controlling on a material issue; and it is not likely that the exclusion of the testimony, even if erroneous, resulted in the rendition of an improper judgment.
Rowe next argues that the judgment should be reversed because of two evidentiary
rulings disallowing certain testimony during his evidentiary hearing. Rowe clearly failed
to preserve this issue for appeal because he failed to make an offer of proof or a bill of
exceptions, one of which must appear in the record in order for an appellant to
successfully challenge a trial court’s exclusion of evidence. In addition, the evidence
about which Rowe complains was not controlling on a material issue. Finally, Rowe has
failed to show that the exclusion of the testimony in question probably caused the
rendition of an improper judgment.
A trial court has broad discretion to make evidentiary rulings. Owens-Corning
Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Thus, an evidentiary ruling
must be upheld unless the ruling was made in an arbitrary or unreasonable manner
without reference to any guiding rules or principles. Id. Moreover, an evidentiary ruling
must be upheld if there is any legitimate basis for the ruling. Id.
18
Furthermore, before reversing a judgment based on the erroneous exclusion of
evidence, an appellate court must determine that the appellant properly preserved the
issue for appeal by demonstrating, on the record, what the evidence was. TEX. R. EVID.
103(a)(2). The appellate court also must determine (1) that the excluded evidence was
controlling on a material issue and was not cumulative of other evidence and (2) that the
erroneous exclusion of the evidence probably caused the rendition of an improper
judgment. Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000).
To adequately demonstrate the substance of the excluded testimony for the record,
the proponent must at least describe the substance of the testimony to the trial court once
the opponent’s objection is sustained. In re N.R.C., 94 S.W.3d 799, 805-06 (Tex.App.—
Houston [14th
The transcript from the entirety of Rowe’s case in chief is attached to this brief
(App. 4; RR 123-38). Nowhere in the transcript does there appear a description of the
testimony which was excluded.
Dist.] 2002, pet. denied). The proponent may not simply state the reasons
for the testimony or explain why it is admissible – he must actually describe the content
of the testimony in sufficient detail to allow the trial court to make an intelligent ruling
and allow the appellate court to determine both whether the ruling was erroneous and its
impact on the judgment. Id.
Rowe’s first witness was Pamela Atchison. Rowe complains that she was
prevented from testifying about the testator’s intentions regarding his estate. On that
issue, Rowe asked Atchison, “Could you relate to us whether or not – what was the
nature of Mr. Miller’s attempted disposition of his estate? Would you relate to us what
19
Mr. Miller’s arrangements were with the disposition of the estate, to your knowledge?”
(RR 125). The Commission’s counsel objected and described the basis of the objection
(RR 125-26). Mr. Rowe then responded by saying, “I would suggest that in this
particular case – in this case we are – there has been an allegation in the Petition that
there were exorbitant fees charged by the attorney to the estate. My argument is that
those – the fees were charged, but they were charged only because of a written document
that was put together by Mr. G.T. Miller” (RR 126). The Chair then asked for a more
specific response, and Rowe stated only, “My response is that is not – it’s hearsay. But in
the case of hearsay, it’s good hearsay insofar as the estate’s – the testator’s state of mind
at the time he was making his will” (RR 126). Rowe offered further commentary
regarding the testimony, but he never described the substance of the testimony (RR 126-
27).
The other exchange about which Rowe complains is similar. In his own
testimony, Rowe described conversations he had with the testator regarding the intended
distribution of his estate (RR 131-33). During the course of the testimony, the
Commission’s counsel objected three times on the basis of hearsay (RR 131-33). Each of
the objections was sustained (RR 131-33). Rowe never offered any argument regarding
the objections or the Panel Chair’s decision to sustain them (RR 131-33). He also failed
to provide any description of testimony he supposedly was prevented from presenting as
a result of the sustained objections (RR 131-33).
Rowe did not make an offer of proof or bill of exceptions to show the substance of
the excluded testimony of Atchison or the substance of his own excluded testimony.
20
Rowe now claims the excluded evidence would have proven that the testator created
written instructions for Rowe to pay himself one-third of the proceeds of the estate as
compensation for representing the estate and that those written instructions were
subsequently lost by the testator (Appellant’s Br. 25). But in order to challenge the
exclusion of the testimony on appeal, Rowe was required to preserve the record by at
least describing the substance of the testimony to the Panel once the Commission’s
objection was sustained. N.R.C., 94 S.W.3d at 805-06. Because he did not do so, his
complaints regarding the excluded testimony have been waived.
In addition, assuming Rowe’s description of the testimony is accurate, the Panel
Chair’s exclusion of the testimony would not provide a basis for reversal of the judgment
because the testimony was not controlling on a material issue. The evidence in question
presumably was offered to demonstrate that Rowe’s fee was not unconscionable. Rowe’s
theory in offering the evidence seems to have been that as long as a fee is approved, it
cannot serve as a basis for discipline under TDRPC 1.04(a).
Rowe’s theory is incorrect because to prove a violation of TDRPC 1.04(a), the
Commission must demonstrate that a lawyer entered into an arrangement for, charged, or
collected an illegal fee or an unconscionable fee. TEX. DISCIPLINARY R. PROF. COND.
1.04(a). The disciplinary rules specifically state that a “fee is unconscionable if a
competent lawyer could not form a reasonable belief that the fee is reasonable.” Id.
Thus, the elements of proof of a violation of TDRPC 1.04(a) do not include proof that the
respondent attorney’s fee lacked approval by the party that was responsible for payment
of the fee. Likewise, such proof would not exonerate the respondent attorney from
21
violating TDRPC 1.04(a) by charging and collecting an unconscionable fee. In this case,
even if Rowe had produced written instructions showing the testator intended that he pay
himself one-third of the proceeds of the estate, it would not have absolved him of
charging and collecting a fee that a competent lawyer could not reasonably view as
reasonable.
And even if the Panel Chair erred by excluding the testimony, Rowe has not
demonstrated that such error probably caused the rendition of an improper judgment. See
TEX. R. APP. P. 61.1 (prohibiting reversal except where error probably caused rendition
of improper judgment or probably prevented proper presentation of case to appellate
courts). “A successful challenge of evidentiary rulings usually requires the complaining
party to show that the judgment turns on the particular evidence excluded or admitted.”
Able, 35 S.W.3d at 617.
In this case, it would be unreasonable to conclude that the exclusion of the
testimony in question probably resulted in an improper judgment. In light of the will’s
clear limitations on executor’s fees, testimony that the testator actually intended for Rowe
to collect hundreds of thousands of dollars for his service as executor/attorney would
have been incredible, especially coming from Rowe. And as discussed above, this
testimony would not have been controlling on a material issue. Thus, it is clear that the
Panel Chair’s decision to exclude the testimony of Rowe and Atchison, even if erroneous,
could not have caused the rendition of an improper judgment.
22
VII. Rowe waived his argument regarding the weight of the evidence by failing to brief the issue properly.
Rowe next offers a very brief, conclusory argument regarding the weight of the
evidence. His argument cannot succeed because it clearly is insufficient to present error
for appellate review.
Rowe’s entire argument on this issue consists of three sentences. He offers only
conclusory statements unsupported by citation to relevant legal authority. He does not
discuss specific evidence. He provides no substantive analysis whatsoever. As such, this
portion of Rowe’s brief is insufficient to present error. See TEX. R. APP. P. 38.1(h)
(requiring that appellate brief “contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record”); Smith v. Comm’n for
Lawyer Discipline, 42 S.W.3d 362, 364 (Tex.App.—Houston [14th Dist] 2001, no pet.)
(affirming judgment because appellant presented “nothing” for review in that he failed to
specify how evidence did not support judgment and failed to provide legal authority,
argument, or evidence demonstrating how trial court erred); see also Worldpeace v.
Comm’n for Lawyer Discipline, 183 S.W.3d 451, 460 (Tex.App.—Houston [14th Dist.]
2005, pet. denied) (providing that failure to offer argument or citations to record or
relevant authority waives complaint on appeal); San Saba Energy, L.P. v. Crawford, 171
S.W.3d 323, 338 (Tex.App.—Houston [14th Dist.] 2005, no pet.) (holding that although
appellate courts interpret briefing requirements liberally, appellant still must offer
specific argument and analysis and cite to record and authorities in support of appellants’
arguments). By failing to brief this issue adequately, Rowe has waived it. Smith, 42
23
S.W.3d at 364; Dolenz v. State Bar of Tex., 72 S.W.3d 385, 388 (Tex.App.—Dallas 2001,
no pet.); Meachum v. Comm’n for Lawyer Discipline, 36 S.W.3d 612, 616 (Tex.App.—
Dallas 2000, pet. denied).
VIII. Contrary to Rowe’s argument, a panel member’s acquaintance with a witness called by the Commission did not require the panel member’s recusal.
Rowe also argues that he was denied a fair trial by the Panel Chair’s failure to
recuse Gail Douglas, a public member, from the consideration of Rowe’s case due to
Douglas’ acquaintance with one of the witnesses called by the Commission. Like
Rowe’s other arguments, this one is meritless because the record reveals there was no
valid basis for the forced recusal of Douglas.
At the heart of this issue is whether the Evidentiary Panel responded properly to
Rowe’s oral objection to Douglas’ continued participation in the evidentiary hearing once
Douglas, upon learning that John Polewski was being called to testify, announced that he
knew Polewski. An examination of the law surrounding recusal illustrates that the Panel
responded properly to Rowe’s objection.
The Texas Rules of Disciplinary Procedure (TRDP) allow for the recusal of an
evidentiary panel member. TRDP 2.06 provides that a panel member for an evidentiary
hearing is subject to recusal “if a district judge would, under similar circumstances, be
disqualified or recused.” TEX. R. DISCIPLINARY P. 2.06. In order to seek recusal under
TRDP 2.06, a party must, within ten days after receiving notice of an assigned panel
member’s identity or within ten days after learning of a ground for recusal, bring to the
panel’s attention any alleged grounds for recusal. TEX. R. DISCIPLINARY P. 2.06.
24
The Texas Rules of Civil Procedure (TRCP) provide a different mechanism for the
recusal of a judge in a civil proceeding. It is not clear that the TRCP recusal procedure
would apply in a disciplinary proceeding before an evidentiary panel, especially where
the TRCP recusal procedure is inconsistent with the Texas Rules of Disciplinary
Procedure.5
The TRCP recusal procedure requires that a party seeking the recusal of a judge
before whom a case is pending must file a verified motion stating grounds why the judge
should not sit in the case. TEX. R. CIV. P. 18a(a). The recusal motion must be filed at
least ten (10) days before the date set for trial or other hearing before the judge. TEX. R.
CIV. P. 18a(a). The motion also must “state with particularity the grounds why the judge
before whom the case is pending should not sit” and must “set forth such facts as would
be admissible in evidence. . . .” TEX. R. CIV. P. 18a(a).
However, in light of TRDP 2.06’s incorporation of the recusal and
disqualification standards of the Texas Rules of Civil Procedure, it is arguable that
provisions of the TRCP recusal procedure could be called upon to provide guidance in
areas where the Texas Rules of Disciplinary Procedure are silent.
Once a party files a motion to recuse a judge before whom a case is pending, the
judge must either recuse himself or refer the motion to the presiding judge of the
administrative judicial district before any further proceedings in the case. TEX. R. CIV. P.
18a(c). If the recusal motion is referred to the administrative judge, the judge before
whom the case is pending may not take further action in the case except where there is
5 Unlike TRDP 3.08, which states that the Texas Rules of Civil Procedure apply to district court trials “except as varied by these rules,” the rules governing evidentiary proceedings do not include a similar provision.
25
good cause for doing so and such good cause is stated in the order in which further action
is taken. TEX. R. CIV. P. 18a(d). The administrative judge must immediately set a
hearing before himself or another judge assigned by him to hear the recusal motion. TEX.
R. CIV. P. 18a(d). The denial of a recusal motion may be reviewed on appeal under an
abuse of discretion standard, but the granting of a recusal motion is not reviewable. TEX.
R. CIV. P. 18a(f).
The TRDP and TRCP recusal procedures share a number of common elements.
Importantly, both require that grounds for recusal be brought to the attention of the
adjudicative body without delay. The TRDP do so by requiring that any grounds for
recusal of a panel member be brought to the attention of the evidentiary panel assigned to
the disciplinary matter within ten (10) days after the objecting party’s receipt of
notification of the panel member’s identity. TEX. R. DISCIPLINARY P. 2.06. The TRCP
similarly require that a motion to recuse be filed by the objecting party at least ten (10)
days prior to the date set for trial or other hearing before the court and that the motion
must state the grounds for recusal “with particularity” and set forth such facts as would
be admissible in evidence. TEX. R. CIV. P. 18a(a). Each set of rules allows for an
exception to the ten-day rule when a party learns of the reason for recusal after the ten-
day deadline has passed. TEX. R. DISCIPLINARY P. 2.06; TEX. R. CIV. P. 18a(e). Under
both the TRDP and TRCP then, recusal is initiated by the objecting party’s bringing the
basis for objection to the attention of the adjudicatory body so as not to unreasonably
delay the proceedings.
26
In this case, Rowe objected to Douglas’ continued participation in his evidentiary
proceeding as soon as he learned of the basis for his objection. Therefore, his objection
was timely. The Panel Chair responded reasonably to the objection by ruling on the
objection himself after allowing the Commission’s trial counsel and Rowe to question
Douglas about his relationship with Polewski and his ability to decide the case
impartially. That examination is attached hereto in its entirety (App. 5). It demonstrates
that Douglas knew Polewski as the result of both men’s membership in the DeSoto
Chamber of Commerce and their membership in the same church (App. 5; RR 37-40). It
also demonstrates that Douglas and Polewski were social acquaintances rather than
friends and that they had very little contact with one another (App. 5; RR 37-40). And it
demonstrates that Douglas was confident his acquaintance with Polewski would have no
impact on his ability to be impartial in judging Rowe’s case (App. 5; RR 39, 40).
Based on the evidence of record regarding Douglas’ relationship with Polewski,
there was no basis for concluding that Douglas’ impartiality might reasonably be
questioned or that he had a personal bias or prejudice concerning the subject matter or a
party or personal knowledge of disputed evidentiary facts. See TEX. R. CIV. P. 18b(2)
(setting forth grounds for disqualification and recusal of judges); TEX. R. DISCIPLINARY
P. 2.06 (incorporating recusal standards of TRCP 18b). Therefore, the Panel Chair
correctly overruled Rowe’s objection to Douglas. The ruling clearly did not constitute an
abuse of discretion.
Rowe’s brief asserts that Douglas should have been recused merely because of his
acquaintance with Polewski, but Rowe cites to no authority supporting such a blanket
27
assertion. He cites only a single case, Rector v. Tex. Alcoholic Beverage Comm’n, 599
S.W.2d 800 (Tex. 1980). The cited case is not on point. It addresses a county court’s
failure to require that witnesses be sworn and failure to allow the appellant to cross-
examine witnesses. The Panel Chair’s denial of Rowe’s oral motion to recuse Douglas,
after a thorough examination of the proffered basis for recusal, cannot be compared to the
Rector court’s clear violation of a party’s due process rights. In this case, the Panel Chair
correctly took evidence on the recusal issue and correctly overruled Rowe’s objection
once it was clear that no legitimate basis for recusal existed.
IX. There is no requirement for an evidentiary panel to include at least one member who is in the same racial minority as the respondent attorney.
Rowe’s final argument is that the Evidentiary Panel erred in refusing to grant him
a new trial on the ground that the Panel did not include a black or minority member.
Rowe offers no legal authority which supports his contention that the racial composition
of an evidentiary panel must reflect the respondent attorney’s minority background. In
addition, Rowe did not make an objection on this basis upon learning of the Panel’s racial
composition. He raised it for the first time in his motion for new trial, which was filed
nearly two months after Rowe’s evidentiary hearing. See TEX. R. APP. P. 33.1(a)
(requiring timely request, objection, or motion to preserve complaint for appellate
review).
Because he offers no legal authority in support of his position on this issue and
because he failed to raise the issue timely, this Court should overrule Rowe’s final issue.
28
PRAYER
Wherefore, Premises, Arguments, and Authorities Considered, Appellee, the
Commission for Lawyer Discipline, prays that the judgment of the District 06A-B2
Evidentiary Panel of the State Bar of Texas be affirmed.
RESPECTFULLY SUBMITTED, LINDA A. ACEVEDO CHIEF DISCIPLINARY COUNSEL CYNTHIA CANFIELD HAMILTON SENIOR APPELLATE COUNSEL OFFICE OF THE CHIEF DISCIPLINARY COUNSEL STATE BAR OF TEXAS P.O. BOX 12487 AUSTIN, TEXAS 78711 TELEPHONE: 512.427.1350; 1.877.953.5535 FAX: 512.427.4167 ___________________________________ CYNTHIA CANFIELD HAMILTON STATE BAR CARD NO. 00790419 ATTORNEY FOR APPELLEE
CERTIFICATE OF SERVICE
This is to certify that the above and foregoing Brief of Appellee, the Commission for Lawyer Discipline, has been served on Jasper C. Rowe, P.O. Box 141954, Irving, Texas 75014, by certified mail, return receipt requested, by depositing same, enclosed in a postpaid and properly addressed wrapper, in an official depository under the care and custody of the United States Postal Service on the 17th
day of June 2010.
_____________________________ CYNTHIA CANFIELD HAMILTON
No. 10-0092 _______________
In The
Supreme Court of Texas _______________
JASPER C. ROWE,
APPELLANT V.
COMMISSION FOR LAWYER DISCIPLINE, APPELLEE
_______________
On Appeal from the Board of Disciplinary Appeals Of the Supreme Court of Texas
BODA No. 42935 _______________
APPENDIX TO BRIEF OF APPELLEE
COMMISSION FOR LAWYER DISCIPLINE ____________________
LINDA A. ACEVEDO CHIEF DISCIPLINARY COUNSEL CYNTHIA CANFIELD HAMILTON SENIOR APPELLATE COUNSEL OFFICE OF THE CHIEF DISCIPLINARY COUNSEL STATE BAR OF TEXAS P.O. BOX 12487 AUSTIN, TEXAS 78711-2487 512.427.1350; 1.877.953.5535 FAX: 512.427.4167
No. 10-0092 _______________
In The
Supreme Court of Texas _______________
JASPER C. ROWE,
APPELLANT V.
COMMISSION FOR LAWYER DISCIPLINE, APPELLEE
_______________
On Appeal from the Board of Disciplinary Appeals Of the Supreme Court of Texas
BODA No. 42935 _______________
APPENDIX TO BRIEF OF APPELLEE
COMMISSION FOR LAWYER DISCIPLINE ____________________
TO THE HONORABLE BOARD OF DISCIPLINARY APPEALS: Appellee, the Commission for Lawyer Discipline, a committee of the State Bar of
Texas, submits these relevant record excerpts in support of its Brief:
APPENDIX 1: Judgment of Disbarment (CR 443-48) APPENDIX 2: Findings of Fact and Conclusions of Law entered by probate court (Pet.
Ex. 2) APPENDIX 3: Documents wherein Rowe identified himself as the attorney for the
Miller estate (Pet. Ex. 2) APPENDIX 4: Testimony offered by Rowe (RR 123-38) APPENDIX 5: Examination of panel member regarding recusal (RR 37-41)
APPENDIX 6: Part II, Texas Rules of Disciplinary Procedure
1
)
BEFORE THE. DISTRICT 06A GRIEVANCE COMMITTEE EVIDENTIARY PANEL 06AwB2
STATE.8AR OF TEXAS
. COMMISSION· FOR ~AWYER DISCIPLINE,
§ § § § § § §. §
Petition~r
V.
JASPERC. ROWE, Respondent
JUDGMENT OF DISBARMENT
. Parties .and Appearance
FILE NO. 00100630711
On May 8, 2008, came to be heard the above· styled and numb~red- cause.
Petitioner, Commission for Lawyer Discipline, appeared by and through its attorney of
. record and announced ready. Respondent, Jasper C. Rowe, Texas Bar Number 17333000
(hereinafter referred to as "Respondent"), appeared in person and announced ready.
Jurisdiction and Venue
The Evidentiary Panel 06A-B2, having been duly appointed to hearthis compla·int by
the chair ofthe Grievance Coml1)ittee for State Bar of Texas District 06A, finds that it has
jurisdiction over the parties and the subject matter of this action and that venue is proper.
Professional Misconduct
The Evidentia!y panel, having considered all ofthe pleadings, evidence, stipulations .. and .argument, finds Respondent has committed Professional Misconduct as defined by
" Rule 1.06(V) of the Texas Rules of Pisciplinary Procedure.
Findings of Fact
The Evidentiary Pane!", having cons"idered the pleadings, evidence and argument of
" coun"sel, makes the following findings of fact and conclusions of law:
JUDGMENT OF DISBARMENT Page 1 of6: j
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Respondent is an attorney licensed to practice law in Texas and is a member of the State Bar of Texas.
Respondent resides in and maintains his principal place of practice in Dallas County, Texas ..
On August 6, 1985"Garcia Talmadge Miller (hereinafter referred to as "G.T. Miller") exequted a Will naming, Respondent as Independent Executor for the Estate of Garcia Talmadge Miller (hereinafter referred to as "Miller Estate"). The Will provided the Indep~ndent Executor would serve without co'mpensation. On October 9, 2002, G.T. Miller died. '
4. While administratively suspe'nded, on October 26,2002, Respondent drafted and signed a letter agreement with Madison Milier, the main beneficiary of the Will, to provide legal assistance in probating the Wills of G.T. and Lucy Miller (Lucy preceded her husband in death). On January 3, 2003, by Letters TestamentarY, Respondent was appointed lridependent Executor
5. On January 6, 2003, while administratively suspended, Respondent, as Independent Executor, hired himself as attorney to represent-the Miller Estate. The January 6,2003 agreement between Respondent as Independent Executor, and himself as attorney for the Independent Executor, gives Respondent a legal fee of 1/3 the estate value as a flat fee for legal services rendered.
6. As attorney for the Independent Executor, Respondent failed to file an Inventory and Appraisement for the Miller Estate until August 13, 2004, after the probate court entered an order to show cause.
7. Based on Respondent's advice, the Miller Estate invested funds with Kim Green, another client of Respondent. These funds have not been repaid. Respondent has refused to disclose the terms of the investment citing the attorney-client privilege 'of Kim Green. Kim Green also owes Respondent legal fees of $200,000; The interests of .the Independent Executor and Kim ·Green are adverse to each other and adverse to the"interests of Respondent.
8. On March 21, 2006, and March 24, 2006, respectively, Madison Miller filed an application for 'an accounting and . distribution of the Miller Estate and an application to remove Respondent as Independent Executor and have a successor ~xe'cut6r appointed.
9. On June 22, 2006, during the trial on the application to remove Respondent as Independent Executor, Respondent .admitted under oath that he had paid' himself $96,000 as attorney for the Independent Executor for the Miller Estate.
10. On August 1, 2Q06, Respondent was' removed as Independent Executor. The . courtJound the fee charged by Respondent as attorney was unconsci<:mable and grossly excessive
JUDGMENT OF DISBARMENT Page 2 of6
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11. The Chief Disciplinary Counsel of the State Bar of 'Texas has incurred reasonable attorneys' fees and direct.expenses associated with this Disciplinary Proceeding in the amount of Two Thousand Eight Hundred Eight and no/100 . Dollars ($2,808.20).
Conclus.ions of law
The Evidentiary Panel concludes that, based on foregoing findings of fact, the
following Texas Disciplinary Rules. of Professional Conduct have' been violated: . Rules
1.01(b)(1), 1.04(a), 1.06(b)(2);8.04(a)(3) and 8.04(c;l)(11).
Sanction
The Evidentiary Panel, having found Respondent has committed Professional
. Misconduct, heard and considered additional evidence regarding the appropriate sanction
to be imposed. 'against Respondent. After hearing all'evidence and argument and after
having considered the factors in Rule 2.18 of the Texas Rule of Disciplinary Procedure, the
Evidentiary Panel finds said findings and cOl')clusions support a judgment of
DISBARMENT.
Disbarment .
It is therefore ORDERED, ADJUDGED and DECREED that effective May 8,2008,
Respondent, Jasper C. Rowe, State Bar Number 17333000, is hereby DISBARRED from
the practice of law in the State of Texas.
It is further ORDERED. Respondent is prohibited from practicing law in Texas,
holding' himself out as an attorney at law,. performing any legal services for others,
accepting any fee directly or indirectly for legal.services, appearing as counselor in any
. representative capacity in any proceeding in any Texas court or before any administrative
body or holding himself out to others or using his nam~, in any manner, in conjunction with
the words "attorney at law," "attorney;" "counselor at law," or "lawyer."
JUDGMENT OF DISBARMENT Page 3 of 6
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Notification
It is furthe~ ORDERED Respondent shall immediately notify each of his current
clients in writing of this disbarment. In addition· to such· notification, Respondent is
ORDERED to return any files, papers, unearned monies and other property belonging to
clients and former clients in ·the Respondent's possession to the respective clients or
former clients or to another attorney at the client's or former client's request. Respondent
is.fuither"ORDERED to file with the ~tate Bar.ofTexas, Chief Disciplinary CQunsel, 6300
La Calma, Suite 300, Austin, Texas 78752, within thirty (30) days of the signing of this
judgment by the Panel Chair, an affidavit stating that all current clients have been notified
of Respondent's disbarment and that all files, pap~rs, monies and other property belonging
to all clients and former clients have. been returned as ORDERED herein.
It is further ORDERED Respondent shall, on or before thirty (30) days from the
signing ofthis judgment by the Panel Chair, notify in writing each and every justice of the
peace, judge, magistrate, administrative judge or officer and chief justice of each and every
court or tribunal in which· Respondent has any matter pending of the terms of this
judgment, the style and cause number of the pending matter(s), and the name, address
and telephone-n.umber of the client(s) Respon~Jent is .representing. Resp&ndent isfu rther
ORDERED to file with the State Bar of Texas; Chief Disciplinary Counsel, 6300 La Calma,
Suite .300, Austin, Texas 78752, within thirty (30) days of the signing of this judgment by
the Panel Chair, an affidavit stating that each and every justice of the peace, judge,
magistrate, administrative judge or officer and ·chief justice has received written notice of
the terms of this judgment.
JUDGMENT OF DISBARMENT . Page 4 of6
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Surrender of License
It is further ORD'ERED Respondent shall, within thirty (30) days ofthe signing ofthis
judgment by the Panel Chair, surrender his law license and permanent State Bar Card to
the State Bar of Texas, Chief Disciplinary,Counsel, 6300 La Calma, SlJite 300, Austin,
Texas .18752, to be forwarded to the Supreme Court of the State of Texas ...
Attorney's Fees and Expenses
,It is further ORDERED Respondent shall, pay all reasonable and necessary
attorney's fees and direct expenses to the State Bar of Texas in the amount of Two
Thousand Eight Hundred Eight and noli 00 Dollars ($2,808.20). The payment shall be due
and payable on or before June 9, 2008, and shall be made by certified or cashier's check
or money order. Respondent shall forwarp the funds, made payable to the State Bar of
Texas, to the State Bar of Texas, Chief Disciplinary Counsel, 6300 La Calma, Suite 300,
Austin, Texas 78752.
[t is further ORDERED that all amounts ORDERED herein are due to the
misconduct of Respondent and are assessed as a part of the sanction in accordance with
Rule 1.06(Y) of the Texas Rules of DisCiplinary Procedure. Any ~mount not paid shall
accrue interest at the maximum legal rate per annum until paid and the State Bar of Texas
shall have all writs and other post-judgment remedies against Respondent in order to
coiled all unpaid amounts.
Publication
It is further, ORDERED this disbarment shall be made a matter of record and
appropriately published in accordance with the Texas Rules of Disciplinary Procedure.
Judgment of Disbarment Page 5 of 6
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. Condition.s Precedent to Reinstatement
It is further ORDERED payment ofthe foregoing restitution and attorneys fees and
expeflses amounts shall be a· condition preced~nt to any consideration of reinstatement
from disbarment as provided by Rules 2.19, 2.20 and 11.02(0) of-the Texas Rules'of
Disciplinary Procedure.
Other Relief
All requested relief not expressly granted herein is expressly DENIED.
t1P SIGNED this dr-day of ~
: ,2008.
EVIDENTIARY PANE;L DISTRICT NO. 06A-B2 STATE BAR OF TEXAS
cG? . . And~ea Stoller ~ District 06A-B2 Presiding Member
Judgment of Disbarment Page 6 of6
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EXHIBIT A
1. Jasper C. Rowe was appointed executor of the Estate of Garcia Talmadge.
Miller and letters testamentary were.issue.d on January 6,2003.
2. The Will of Garcia Talmadge Miller was admitted to probate in this Court
and was not challenged by any person. That Will does not provide for the payment of
any fees to Jasper C. Rowe for serving as executor of the Estate, and Mr. Row~ did not
apply to this Court for any fees for serving as executor.
3. Jasper C. Rowe took from the Estate sums in excess of $100,000.00,
claiming to be entitled to those fees as attorney for the Estate. He further claimed to be
entitled to take another $100,000.00 in fees from the Estate when sufficient property of
the Estate had been sold to generate income to pay those fees.
4. The Court finds that Jasper C. Rowe did not have the right to take the fees
he has taken from the Estate and has no right to recover any further amount of fees. The
Court further fmds that the fees claimed by Jasper C. Rowe are not authorized by the Will
or by law. The Court further finds that any claim by Jasper C. Rowe that he is entitled to
money from the Estate under the terms of an oral agreement with Garcia Talmadge Miller
is neither credible nOr enforceable under Texas law.
. 5. The Estate of Garcia Miller could and should have been fully administered
and closed within three months of January 6, 2003. The delay in administration and
Closing Of the Estate constitutes gross mismanagement of the affairs of the Estate.
6. Jasper Rowe, acting as executor of the Estate, entered into a «contract"
with himself under the terms of which he would act as attorney for the Estate and collect
a fee of one-third the value' of the Estate. The Court finds that the ~~te di~ not need to .- MID CORR- .
~ TRUt:: : OOlG1Ni\\... ~o%;~~.~\ v o~ ". -
~L? '<;-) COP \ • 01\1 LAS
;y Nr.-": . . fILE? 1 ERK'5 OFPia. ~.'{!tf!..~"J COUi\lT'f' Ct. "'} C'" -f; n ,... - ~ ~
APPLICANT'S MOTION FOR ENTRY OF ~GS OF F AC1) k'-.?l ... n ~ d u u b b~) ~
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hITe an attorney because Jasper Rowe, executor, did not need legal advice to properly
a~lnister the Estate. The Court finds that Jasper Rowe's actions in hiring himself and
agreeing to pay himself a fee of one third the value of the Estate constitute gross
mismanagement of the Estate. The. Court further finds that when Jasper Rowe, as
executor, paid himself based on the alleged contract for the services of Jasper Rowe f1.S
attorney, that this payment constituted a clear and gross breacl?- of his fiduciary duties to
the Estate, and that all payments made by Jasper Rowe to himself from the assets of the
Estate constitute gross mismanagement'ofthe Estate.
7. The .Court further finds that the fee charged by Jasper Rowe as attorney
was ·unconscioI).able and grossly exc~ssive; and that the reas:onable value of necessary
services to completely administer and close the Estate was less than $5,000.00 ..
8. The Court [rods that Jasper Rowe has embezzled from the Estate by taking
at least $100,000.00 from the Estate without authority or justification.
9. The Court finds that Jasper Rowe gave $25,000.00 of the Estate's money
to one of Jasper Rowe's c~ients and did not receive either a promissory note, collateral, or .
an enforceable promise to repay the money in return. The Court finds that in doing so,
. Jasper Rowe was guilty of a gross conflIct ofiilterest and of gtoss mismanagement of the
affairs of the Estate.
10. The Court finds that real estate owned by the Estate, at 4004 Munger
Avenue in Dallas, has unpaid taxes on it, and that taxes have been unpaid during the
entire period that Jasper 'Rowe was executor of the Estate. Jasper Rowe paid himself,
and received rents from the 4004 Munger Avenue property without applying these
monies to tax liability on the Munger Avenue property, Iillowing that the.r~~re :;ilipaid . ,'r COR.\ZC
.,1Y CoF "TRUE A.o\~uORlGINAL 0"'" ". OV" r ... ~v . C'·, • DALLP-OJ ,,"' Cc:
" c.) q' ~o 1N '''S Ot"f1. I:-':\. .;, r _L-'""; •• -=I.-CU:R1<"· _ . ~ .~ ,r,)~ Cour~ \~' .~f ~ (1 .n f1 r: i~ t:~.
APPLICANT'S MOTION FOR ENTRY OF FINDIN FACT, EXHIBIT A' '. '." 2:
taxes on that property, -and knowing further that the taxing authorities had filed suit to
foreclose on the property to obtain payment of taxes. The Court finds that Jasper Rowe
was guilty of gross mismanagement of the Estate for allowing tax . liability to accrue and
grow, as well as for failing to prevent penalties., interest and the impending foreclosure of
.the Munger Avenue property.
11. The Court finds that the suit by Madison Miller against Jasper Rowe was
necess3ry for and benefited the Estate, and further finds that the attorney's fees and costs
. incurred by- Madison Miller should be paid by the Estate. The Court finds that the
I reasonable value of the services provided by John P. Po1ewski in this case is $15,600.00 .
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and that there were $2,738.53 of expenses incurred in the suit, which also were necessary
and beneficial for the Estate.
$lGltED THIS· /0 .QAY OF 11&«:£1
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IN THE PROBATE COURT INRE:
ESTATE .OF GARCIA TALMADGE MI~LER
§ § § § § § § §
NUM"BER20F
DECEASED DALLAS COUNTY, TEXAS
ORDER APPROVING INVENTORY
n::. 10 IIsse.fs On I y
. The Inventory, Appraisement, and List of Claims· of the above
Estate having been filed and presented and the Court having considered
and examined the same and being satisfied that it should be approved
and there having been no objections made thereto, it is in all respects . QS -10 asse-f5 0'.1'1 .
APPROVEDf\AND ORDERED AND ENTERED into record.
Signed on the _-,-1 ___ day of~/rtkt, 200:......Lf ___ _
Approved as to form:
Jasper C. Rowe
SBN 17333000 P.O. Box 141954 Irving, TX 75014 Ph: 469-231-1920 FAX: 214-889-3800
ATTORNEY FOR THE ESTATE
-~~~ JUDGE PRESIDING
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SEPARATE CLAIMS AGAINST ESTATE: $23,213.69
TOTAL VALUE OF DECEDENTS. ESTATE: $629,369.69
The undersigned requests that this Inventory, Appraisement, and List of Claims be approved and ordered entered of record.
STATE OF TEXAS
COUNTY OF DALLAS
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Respectfully submitt~d,
P.O. Box 141954 Irving, TX 75014 Ph: 469-231-1920 FAX: 214-889-3800 ATTORNEY FOR ESTATE
VERIFICATION
I, ~ (! I R., 0 uJ}3 , having been duly sworn, hereby state on oath that the foregoing Inventory, Appraisement, and List of Claims is a true and complete statement of all the property and claims of the Estate that have come to my knowledge.
SIGNED on (:;] ([.(~
INVENTORY AND APPRAISEMENT
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12. There is an existing necessity for this estate to be administered.
13. In the will1eft by Decedent) Applicant was named Independent
Executor to serv,e without the necessity of a bond or any other security
which might be required by the Court. Decedent further specified that no
action would be taken in the Court other than to have the will probated and
reco"rded, as well as to' return an Inventory, Appraisement and List of
Claims.
14. There are not any legal reasons which would prevent Applicant
from serving as Executor or fi'om the acceptance of Letters Testamentary.
Applicant allege:s entitlement to the issuance of such letters.
15. The will which was left by Decedent devised property or made
other bequest to Denley Drive Christian Church of Dallas, Texas, a non
profit charitable inStitution, but did not devise any property or make other
bequest to the State of Texas~ .any of its agencies or any other charitable
organization.
16. Four (4) years' have not passed since decedent's death.
\VlIEREFORE, PRE1rlISES CONSIDERED, Applicant prays that the
court issue citation to the proper parties that may have an interest in this
'e~tate and that the Court a~lmit the \vill to probate. A.pplicant further prays
for issuance of :Letters- Testamentary, and for further orders and for other
re] ief to which ,he mav be entitled. . . .,
Respectfully submitted
LA V/ OFFICES OF JASPER C. RO\VE
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STATE OF TEXAS
COUNTY OF :]21}tLfJ S .
Registered Patent Attomey State Bat No. 17333000
P.O. Box 141954 . Irvino , TX 75014 Ph: (469)231-1971 FA.X: (413) 683-5045 ATTORNEY FOR ESTATE
I, the undersigned, having been duly sworn, hereby state on oath, that
insofar as is known to me, all the allegations of the ,foregoing Application
are true in substance and in fact and that no material fact or circumstance
has, within my Im{)\'vle-dge, been omitted from the Application.
, f / v
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned
authority, by the said j'ovy?(?( C /!.uu[}k!.-:::--'· thus
4.10 day of lJe ~ ,20 () Y to
certify which witness my hand and seal of office.
Not~rv PublIc III and for" '::'J . .7' the State of Texas ./ My comm~ssion expires
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APPLICATION PROBATE OF WILL Page 4 of 4 909-000508
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1 not charge hourly fees in this case?
2 MR. ROWE: No.
3 MR. PRAEGER: Okay. Did your
4 informational letter say that you would be charging
hourly fees or keeping records? 5
6 MR. ROWE: No. It said that I would be
7 charging a flat rate.
8 MR. PRAEGER: So you had no records even
9 of the services you performed?
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MR. ROWE: I have records of what
services were performed because --
MR. PRAEGER: Did you bring those today?
MR. ROWE: I have no records -- I mean,
I have --
MR. PRAEGER: Nothing further.
MR. ROWE: I mean, I --
THE CHAIRPERSON: Okay. That's all
right. So now
MRS. VAN HAMME: I've· rested.
THE CHAIRPERSON: You've rested. Okay.
Now, we will go over to you.
witness~
you can call your first
MR. ROWE: Okay. I would like to call
24 Ms. Pamela Atchison, please.
25 (Witness was sworn by the court
STOFFELS & ASSOCIATES DENTON, TEXAS (940)565-9797
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1 repo-rter.)
2 PAMELA ATCHISON,
3 Having been first duly sworn, testified as follows:
4 DIRECT EXAMINATION
5 BY MR. ROWE:
6 Q. Would you state your name and address for the
7 record, please?
8 A. Pamela Atchison, 2317 Saint Wynette, Fort Worth,
9 Texas 76107.
10
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12
Q.
A.
Q.
Okay. What is your occupation?
I teach first grade.
Okay. Are you a -- are you a licensed personnel
13 in the State of Texas?
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A.
Q.
A.
Q.
Yes.
You have a Texas teacher's license?
Yes, sir.
Okay. Will you state your relationship to
Mr. Garcia T. Miller?
A.
Q.
A.
Q.
A.
Q.
Mr. Miller was my great uncle.
Okay. Were you related also to his wife?
Lucy Miller?
Yes.
Yes.
Okay.
She's my great aunt by marriage.
Did you maintain a close relationship with
Mr. G.T. Miller?
STOFFELS & ASSOCIATES DENTON, TEXAS (940)565-9797
125
1 A. Most definitely, yes~
2 Q. Were you acquainted with his -- any items
3 relative to his estate or did he confide in yOu in those
4 regards?
5 A. Many times.
6 Q. Could you relate to us whether or not -- what was
7 the nature of Mr. Miller's attempted disposition of
8 his estate? Would you relate to us what Mr. Miller's
9 arrangements were with the disposition of the estate, to
10 your knowledge?
11 MRS. VAN HAMME: I object.
12 THE CHAIRMAN: What's the basis of --
13 MRS. VAN HAMME: I object on the grounds
14 that the will has be~n offered into evidence. Anything
15 else that Ms. Atchison would testify to that Mr. Miller,
16 Mr. Garcia T. Miller, told her would be hearsay. And it
17 would likely be barred by the Deadman's Statute.
18 And, furthermore, I also object that
19 this lawsuit is about what Mr. Rowe did as an attorney,
20 not what he may have done as an independent executor.
21 And so I object to the testimony that would be going
22 into things that were tried in the Probate Court as part
23 of the application to have the independent executor
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removed and for an accounting. So I would ask that the
I 25 testimony be limited to what is in the Petition --
STOFFELS & ASSOCIATES DENTON, TEXAS (940)565-9797
126
1 actually, the First Amended Petition.
2
3
THE CHAIRPERSON:
MR. ROWE: Yes.
Mr. Rowe?
I would suggest that in
4 this particular case -- in this case we are -- there has
5 been an allegation in the Petition that there were
6 exhorbitant fees charged by the attorney to the estate.
7 My argument is that those -- the fees were charged, but
8 they were charged only because of a written document
9 that was put together by Mr. G.T. Miller.
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THE CHAIRPERSON: So what's your
response just to her objection, specifically?
MR. ROWE: My response is that is not
it's hearsay. But in the case of hearsay, it's good
hearsay insofar as the estate's -- the testator's state
of mind at the time he was making his will.
THE CHAIRPERSON: Based on the Deadman's
17 Statute and hearsay, I'm going to have to sustain the
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19
objections.
MR. ROWE: Okay. Could I argue on the
20 hearsay -- the Deadman's Statute allegation?
21 THE CHAIRPERSON: Well, unless it was a
22 dying declaration, I'm gong to sustain that objection.
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MR. ROWE: Well, I still need to put
that on the record, if you don't mind.
THE CHAIRPERSON: Make a record.
STOFFELS & ASSOCIATES DENTON, TEXAS (940)565-9797
127
1 MR: ROWE: The Deadman's Statute, for
2 Heaven's sake, executor --
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6
THE CHAIRPERSON: Well, wait a minute.
Wait a minute. I don't think that needs to be on the
record. That's ~- the Deadman's Statute is what it is.
MR. ROWE: Okay. It speaks for itself.
7 It says that if testimony is corroborated, then a person
8 can testify to it if she's a corroborating witness.
9 THE CHAIRPERSON: But I'm sustaining the
10 objectiori"based on hearsay, based on that's not before
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the committ~e today. It's only your acts as an
attorney. And based on the fact that a Court has
already ruled on all of that.
on your acts as an attorney.
So we're here today based
Okay. Exception taken to MR. ROWE:
that because there was the acts of an attorney are
set forth and that she can testify I mean,
the -- this action 90es to whether or not fees
exhorbitant or not. And the Petition concerns
that --
were
the acts
of an attorney.
And I'll have to
So I would -- I would except to that.
move on. Okay.
THE CHAIRPERSON: Okay. Move on. Thank
you.
Q. (BY MR. ROWE) When you were dealing with Mr. G.T.
25 Miller, did you have ever -- did you ever have the
STOFFELS & ASSOCIATES DENTON, TEXAS (940)565-9797
128
1 opportunity to help him to look for any documents
2 relative to his estate?
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A. Yes, sir .
Q. Okay. What were those --will you state the
nature of looking for those documents and what happened?
A. Well, they were specific instructions as to how
he wanted the estate handled and who he wanted to handle
it.
Q.
A.
Q.
Were they in writing?
Yes.
What happened to the writings, if you know?
A. He had them bundled in a large 11 by 14 envelope,
sealed and bound. And then he took them to his nephew
14 in Kilgore.
15
16
17
Q. Okay. Were those documents available during all
the time you were dealing with -- were those documents
always available that you did you ever have the
18 opportunity to help him look for those documents?
19 A. He did lose the copy that he decided to leave at
to home. And we looked for them in his files for the
21 copies, and we were also 106king for th~ combination to
22 .the safe, which we could not find.
23
24
25
Q. Okay. So were those documents documents that you
thought had been destroyed or lost or not?
A. Well, according to Uncle Garcia, that they were
STOFFELS & ASSOCIATES DENTON, TEXAS (940)565-9797
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lost. He couldn't remember where he placed them.
MRS. VAN HAMME: Objection, hears~y.
THE CHATRPERSON: Sustained.
MR. ROWE: She's testifying as to
MRS. VAN HAMME: She testified as to
what he told her. She was starting to testify as to
what he said to her. And I object to that as hearsay.
129
MR. ROWE: Well, that states his intent.
9 And it states the state of mind du~ing the will. And
10 even though it's hearsay, I would submit that that
11 hBarsay is admissible as an exception of a statement of
12 intent and state of mind under the hearsay rules.
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MRS. VAN HAMME: I think -- it's --
also, I object on the basis of the Deadman's Statute.
THE CHAIRPERSON: Sustained.
MR. ROWE: Exception. I have no further
questions. I pass the witness.
MRS. VAN HAMME:
questions for Ms. Atchison.
I don't have any
THE CHAIRPERSON: I have no questions.
MR. MCCLELLAND: No questions.
MR. DOUGLAS;
MR. PRAEGER:
No questions.
No questions.
MR. ROWE: You're released then.
THE CHAIRPERSON: Thank you.
STOFFELS & ASSOCIATES DENTON, TEXAS (940)565-9797
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Jasper C. Rowe
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MR.. ROWE: Okay. I would like to call
as a direct te~timony pleise.
THE CHAIRPERSON: And you're still under
4 oath from previously.
5 JASPER. C. ROWE,
6 having been first duly sworn, testified as follows;
7 DIRECT EXAMINATION
8 BY MR. ROWE:
9 Q. On or about 1985 Mr. G.T. Miller, which was
10 the -- well, let me state -- my name is Jasper CRowe.
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I am an attorney in the State of Texas. I am doubly
licensed. I'm a registered patent attorney on the
Federal Lic~nse No. 29973. And I'm also a registered
attorney on the State Bar 1-7 -- No. 17333000. I
practice in and around Dallas County in the City of
Irving, Texas.
I primarily am a transactional attorney,
not a trial attorney. So I was an attorney for the
federal government for about 15 years, which I tried
civil rights cases for the federal government.
been -- I was active in the Bar Association.
I have
I'm just giving you some background
information. I am -- I was the first black Chair of the
24 Dallas Bar Association Section, Corporate Counsel
25 Section, back in about '90 -- in about '91. I was the
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Chair of the Advisory Committee of the Dallas Bar
Association. I was the Vice Chair of the Lawyer
Referral Committee of the State Bar of Texas.
In my practice I was -- in about 1985 my
uncle approached me and asked me about drafting up a
will for him. I'm going to do it in kind of a narrative
because it's kind of hard to --
THE CHAIRPERSON: Yeah. That's okay.
That's fine.
Q. (BY MR. ROWE) Okay -- approached me about
drafting up a will for him. And I.told him that -- that
he said I want you to be the executor of -- executor
of a will and to carry out some specific instructions
under the will that I'm going to give to you. And I
said okay. But I said, if I'm going to be the executor
16 and carry out those instructions, then it would behoove
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everyone to have the will drafted by a third party_
he had a third party to draft up his will.
I also told him that since he had
specific instructions on how he wanted his what he
So
21 wanted done with his property, that he reduce those
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items to writing because you're going to have Statute of
Fraud's problems, hearsay problems, otherwise. So he
drafted those documents up in writing, keeping -- taking
one copy to Kilgore for safety and keeping one copy in
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his home security drawer. I -- from time to time he
consulted me about what he wanted done with the estate
and -- and he told me himself --
MRS. VAN HAMME: Objection, hearsay.
Q. (BY MR. ROWE) that he wanted -- go ahead.
THE CHAIRPERSON: Sustained.
132
Q. (BY MR. ROWE) Mr. Miller gave me speci£ic
instructions of exactly how he wanted the estate to be
carried out, including the charges to be charged. That
way it doesn't say how much. He told me, specifically,
what he wanted done and how he wanted it down, and gave
me specific instructions and told me that his -- you
know, he did not trust his son because he son was an
alcoholic.
MRS. VAN HAMME: Objection; hearsay.
Q. (BY MR. ROWE) And that he
THE CHAIRPERSON: I'm sorry. Sustained.
Go ahead.
Q. (BY MR. ROWE) And that he wanted -- and that he
wanted -- how he wanted specifically these things to be
carried out. He stressed those several times. Every
time I would come over, he would stress exactly how he
wanted it done. And I kept telling him make sure you
put it in writing~
Okay. So what happened was
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1 apparently well, anyway. On or about October of 2002
2 Mr. G.T. Miller, being 101 years old, my uncle, died.
3 And prior to that time, about five years earlier,
4 Lucille Miller, his wife, had died. Since they were
5 both dead, I went ahead-- the heir -- the principal
6 heir -- beneficiary, not heii,but beneficiary of the
7 estate -- the heir is in testate. Beneficiary is
8 according to the will. The beneficiary of the estate
9 contacted me and said, hey, your uncle is dead.
10 MRS. VAN HAMME: Objection, hearsay.
11 MR. ROWE: Well, I had to --
12 THE CHAIRPERSON: Sustained.
13 Q. (BY MR. ROWE) Well, I was contacted and asked .to
14 administer the estate to begin the process of
15 administering the estate. I mean, somebody-- I got to
16 tell you what happened, I mean -- and I drafted -- I
17 entered into a -- at least, I gave him an informational
18 contract that said exactly what the fees that would be
19 charged in the administration of the estate. And I
20 later, after I was appointed executor of the estate,
21 entered into a contract as the executor, as attorney for
22 representing myself with the executor of the estate tD
23 render services for the estate. But those things are
24 set out in the documents that we previously said, so I
25 won't rehash the whole thing.
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1 The son, Madison Miller, after being
2 paid $100,000'.00 -- his early payment under the estate,
3 because, normally, in estates you settle all the bills
4 and everything, and then you payoff the
5 beneficiaries ~- sued to r~move Jasper C. Rowe, the
,6 independent executor, from the estate. That suit was
7 brought in capacity of Madison Miller, a cross-action
- 8 against Jasper C. Rowe, independent executor of the
9 estate. And it ran to -- or the judgements that were
10 set out were taken in the capacity of Jasper C. Rowe as
11 independent executor of the estate.
12 The -- the Jasper C. Rowe was removed,
13 as we've seen in the documents. This was appealed. And
14 the documents stat~ for themselves. But, mainly, what
15 was happening, there was a waiver of several objections
16 in the case. And because of the waiver, even though
17 errors were made, it could not be rectified. And,
18 therefore, the judgment of the probate court stood.
19 That is still on file and running
20 against the executor of the estate. And, generally,
21 when you have an executor of the estate like that, what
22 happens is the estate ends up being liable for costs of
23 executor's actions, which there was no bond.
24 In that action there was no amendment to
25 the pleading. The action was a cross-action, Madison
STOFFELS & ASSOCIATES DENTON, TEXAS (940)565-9797
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1" Miller against Jasper C. Rowe, independent executor. No
2 parties wer~ added. " And the action is still an action
3 only against the independent executor and only extends
4 in that regard to the independent executor.
5 MRS. VAN HAMME: I object to any
6 testimony along this line in that he keeps testifying
7 what he believes it says. And" I believe that the Order
8 of the Probate Court and the Order of the Court Appeals
9 of Appeals speaks for itself.
10 And his opinion about who it relates to,
11 who it applies to, and who it binds, I object to
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testimony on that. And, further, that is not that
an issue that was decided by the Probate Court and is
not an issue that is pending before this panel today,
and is not -- the allegations that plead against
16 Mr. Rowe relate to his actions as an attorney, not
17 actions as an independent executor.
is
18 THE CHAIRPERSON: I'm going to overrule
19 that simply because we have gone so far into that that I
20 believe he's got a right to, at least, say what his
21 understanding is, testify as to his understanding.
22 MRS. VAN HAMME: Thank you.
23 THE CHAIRPERSON: Continue, Mr. Rowe.
24 Q. (BY MR. ROWE) Okay. Well, anyway, after -- well
25 after these actions were taken, the independent executor
STOFFELS & ASSOCIATES DENTON, TEXAS (940)565-9797
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1 went ahead arid paid his dues because he was going to
2 have to -- in further litigation -- once it became clear
3 that further litigation was going to be necessary, the
4 dues were paid and the fee against the -- what do you
5 call it? The CLE fees were paid, which brought the
6 license into ~ompliance and has remained in compliance
7 since that time.
B There was no need for Jasper c. Rowe to
9 handle or have a license current before that time,
10 because he not handling any litigations, or any actions
11 that would require the use of the license. The
12 only action that would have been taken were of three
13 one of three types; one, either patent applications or
14 copyright applications taken that were filed before the
15 federal government that are protected by the federal
16 statutes., Or mediations, which the American Arbitration
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Association -- I'm a certified American Arbitration
Association Certified Mediator. And under that -- those
laws I have the ability to do mediations. I'm not -- as
long as you're not trying cases, you're doing
mediations, you can -- those can be done. So I would
22 contend that in, though, you know, no license was
23 necessary to represent yourself.
24 MR. ROWE: I would like to reserve the
25 right to do a close by -- in writing to digest the
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I federal statutes relativ~ to repiesentation of self, if
1 2 I that could be -- if we could do it that way because we
3 do closing arguments anyway.
4 THE CHAIRPERSON: Yeah, but we will do
5 everything today and --
6 MR. ROWE: Okay. So you don't want to
7 do it that way.
8 Q. (BY MR. ROWE) Okay. But, anyway, there is a --
9 you know, the federal -- a person has a right to
10 represent themselves. And even in criminal cases people
11 represent themselves, which there is even a more
12 constitutional structure against representing
13 themselves. So I'm saying that in the particular case
14 that we're talking that the allegations that were set
15 forth here by the State Bar, that many of them concern
16 the representation of the -- of the independent executor
17 by himself. And I would contend that those are were
18 protected -- protectable activities, rather than
19 relative so long as they do not extend to any third
20 parties.
21 MR. ROWE: Let's make sure I have -- I
22 went through most of it in rebuttal so --
23 THE CHAIRPERSON: Sure.
24 MR. ROWE: So there's no sense in
25 rehashing --
STOFFELS & ASSOCIATES DENTON, TEXAS (940)565-9797
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1 THE CHAIRPERSONi' Okay.
2 MR. ROWE: -- everything. But are there
3 any questions?
4 THE CHAIRPERSON: Yes, sir.
5 MR. MCCLELLAND: How many estates have
6 you ever handled in ~robate court?
7 MR. ROWE: I've handed only -- I've
8 handled only about maybe six or seven estates.
9 MR. MCCLELLAND: Over how many years?
10 MR. ROWE: Over 15 or 20 years.
11 MR. MCCLELLAND: Do you think Judge
12 Price's order that you repay the attorney's fees is
13 binding on you as an individual?
14 MR. ROWE: I don't think it's binding on
15 me individually. I think it's binding on me in my
16 capacity as an independent executor. And when you have
17 something like that -- I did some research and that --
18 those fees normally come out of the estate.
19 MR. MCCLELLAND: Do you believe that the
20 estate is required to pay all costs to defend you and
21 those--
22 MR. ROWE: Yes.
23 MR. MCCLELLAND: to reimburse the
24 attorney's fees even when there's a finding of gross
25 mismanagement -- -
STOFFELS & ASSOCIATES DENTON, TEXAS (940)565-9797 -
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1 questions -- go ahead .
. 1 2 MR. MCCLELLAND: Swear him in. I
3 THE CHAIRPERSON: Yeah. Just a moment.
4 If you will ask him questions as a witness to tri to
5 sort out whether he could be fa~r or not. And you will
6 also get the same opportunity, Mr. Rowe.
7 And, Mr. Douglas, you will be sworn in
8 and give your answers truthfully.
9 MR. DOUGLAS: Sure.
10 THE CHAIRPERSON: If the court reporter
11 will go ahead and swear him in, then we'll go ahead.
12 (Witness was sworn by the court
13 reporter.)
14 THE CHAIRPERSON: Okay. Mrs. Van Hamme,
15 if you want to ask your questions.
16 GAIL DOUGLAS,
17 having been first duly sworn, testified as follows:
18 DIRECT EXAMINATION
19 BY MRS. VAN HAMME:
20 Q. Mr. Douglas, the next witness is going to be
21 Mr. John Polewski. And you've indicated that you know
22 Mr. Polewski?
23 A. Yes.
24 Q. Can you tell me how you know Mr. Polewski?
25 A. We both live in the same city. We have both been
STOFFELS & ASSOCIATES DENTON, TEXAS
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1 members of the Desoto Chamber of Commerce for a number
2 of years. We see each other once ina great while at a
3 Chamber function. I;
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church where I do. And, occasionally, and once every
~ ..... ,. . - 6 year or .two I ~ight see John at church .
7 Q. And you say you live in the same city. What city
8 is that?
9 A. Desoto, Texas.
10 Q~ Do you know the population of Desoto?
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12 Q. So it's not really large?
13 A. No.
14 Q. So have you ever done business with Mr. Polewski?
15 A. Never.
16 Q. Have you ever bought insurance or anything like
17 that from him?
18 A. I've never sold him -- I'm an insurance agent and
19 I've never sold him any insurance, no.
20 Q. Okay. Do you -- have you ever been to his house?
21 A. One time.
22 Q. And do you recall that
23 A. About ten years ago.
24 Q. Ten years ago. Okay. Have you discussed this
25 case with him at all?
STOFFELS & ASSOCIATES DENTON,' TEXAS (940)565-9797
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1 A. Oh, no. Of course not.
I 2 Q. And have you -- has he discussed it with you?
3 A. No, rna ' am.
4 Q. Do you believe that -- do yo~ consider yourself a
5 .friend of his or more of a social acquaintance?
6 A. I would sayan acquaintance.
7 Q. Have you -- do you belie~e that because you know
I I
8 Mr. Polewski that you would give his testimony greater
9 weight than someone you did not know?
10 A. Not at all.
11 THE CHAIRPERSON: Mr. Rowe?
12 CROSS-EXAMINATION
13 BY MR. ROWE:
14 Q. You had indicated that you knew mainly his wife
15 rather· than him?
16 A. No. That's not the case.
17 Q. Okay. Well, tell me --
18 .A. His wife goes to -- she plays the organ
19 occasionally at our church. But I see her there a
20 little more often than I see John. But I actually have
21 been around over 15 years John a little bit more than
22 his wife. Sure.
23 MR. MCCLELLAND: That's not saying
24 whether you're missing church or he's missing church.
25 MR. DOUGLAS: Not at all. He may be at
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i i 1 the early church.
2 Q. (BY MR. ROWE) Okay. Of course, you're going to
3 be listening to what he has to state and say, and
4 listening to what the other people have to say, also.
5 You indicated you think that you could be fairly mutual
6 in
7 A. Oh, yes, sir. No problem at all.
8 Q. You think there's any possibility of some -- a
9 connection just because you know him or not?
10 A. No, sir.
11 MR. ROWE: Okay. That's alII need to
12 ask·him.
13 THE CHAIRPERSON: Anything further from
14 either one of you?
15 MRS. VAN HAMME: No.
16 MR. ROWE: No.
17 THE CHAIRPERSON: I would like to ask a
18 question, Mr. Douglas. Did you know he was going to be
19 a witness here today --
20 MR. DOUGLAS: No.
21 THE CHAIRPERSON: before he appeared
22 in the door or the name?
23 MR. DOUGLAS: I did not.
24 THE CHAIRPERSON: Okay.
25 MR. ROWE: No further questions.
STOFFELS & ASSOCIATES DENTON, TEXAS
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1 MR. MCCLELLAND: Do you still have the
2 objections?
3 MR. ROWE: I still am going to maintain
4 the objection, but, anyway, I presume, we can proceed if
we have to.
6 THE CHAIRPERSON: And based on that,
7 then I am going to find no reason to recuse Mr: Douglas.
8 And we wi 11 proceed.
9 MR. ROWE: In order to protect the
10 record? Okay.
11 THE CHAIRPERSON: And, by the way, when
12 the witnesses corne in or before Mr. Rowe actually
13 testifies, make sure you swear him in or them in. Okay.
14 Thank you.
15 (Witness was sworn by the court
16 reporter. )
17 JOHN POLEWSKI,
18 having first been duly sworn, testified as follows:
DIRECT EXAMINATION
20 BY MRS. VAN HAMME:
21 Q. Mr. Polewski, would you state your name for the
22 record, please?
23 A. John Polewski.
24 Q. And, Mr. Polewski, what 1S your profession?
25 A. A lawyer.
STOFFELS & ASSOCIATES DENTON, TEXAS (940)565-9797
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DISTRICT GRIEVANCE COMMITTEES 2.U4
Z. "Serious Crime" means barratry; any felony involving moral turpitude; any misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy, or solicitation of another to commit any of the foregoing crimes.
AA. "State Bar" means the State Bar of Texas. BE. "Summary Disposition Panel" means a panel
of the Committee that determines whether a Com-
plaint should proceed or should be dismissed based upon the absence of evidence to support a finding of Just Cause after a reasonable investigation by the Chief Disciplinary Counsel of the allegations in the Grievance. Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by orders of Dec. 29, 2003, eff. Jan. 1, 2004; May 14, 2008, and Aug. 20, 2008, eff. Sept. 1, 2008.
PART II. THE DISTRICT GRIEVANCE COMMITTEES
2.01. Disciplinary Districts and Grievance Committee Subdistricts
The State of Texas is geographically divided into disciplinary districts that are coextensive with the districts of elected Directors of the State Bar. One or more Committee subdistricts shall be delineated by the Board within each such District. From time to time, if the Commission deems it useful for the efficient operation of the disciplinary system, it shall recommend to the Board that a redelineation be made of one or more subdistricts within a District. All Committees within a single discipiinary district have concurrent authority within the District but once a matter has been assigned to a Committee, that Committee has dominant jurisdiction, absent a transfer. Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992.
2.02. Composition of Members Each elected Director of the State Bar shall nomi
nate, and the President of the State Bar shall appoint, the members of the Committees within the District that coincides with the Director's district, according to rules and policies adopted from time to time by the Board. Each Committee must consist of no fewer than nine members, two-thirds of whom must be attorneys licensed to practice law in the State of Texas and in good standing, and one-third of whom must be public members All Committee panels must be composed of two- thirds attorneys and one-third public members. Each member of the Committee shall reside within or maintain his or her principal place of employment or practice within the District for which appointed. Public members may not have, other than as consumers, any financial interest, direct or indirect, in the practice of law. There may be no ex officio members of any Committee. Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May I, 1992. Amended by order of Dec. 29, 2003, eff. Jan. 1, 2004. .
2.03. Time for Appointment and Terms
their then unexpired terms, subject to resignation or removal as herein provided. Nominations to Committees shall be made annually at the spring meeting of the Board; all appointments shall be made by the President no later than June 1 of each year, provided, however, that if a vacancy on a Committee arises after June 1, the Director(s) shall nominate and the President shall appoint an eligible person to serve for the remaining period of the unexpired term. If any Director fails or refuses to make nominations in a timely manner, or the President fails or refuses to make appointments in a timely manner, the existing members of the Committees shall continue to hold office until the nominations and appointments are made and the successor member is qualified. One-third of each new Committee will be appointed for initial terms of one year, one-third for an initial term of two years, and one-third for an initial term of three years. Thereafter, all terms will be for a period of three years, except for appointments to fill unexpired terms, which will be for the remaining period of the unexpired term. Any member of a Committee who has served two consecutive terms, whether full or partial terms, is not eligible for reappointment until at least three years have passed since his or her last prior service. No member may serve as chair for more than two consecutive terms of one year each. All members are eligible for election to the position of chair. Adopted by orders of Feb. 26, 1991 and Oct. 9, 1991, eff. May I, 1992. Amended by order of Dec. 18, 2006, eff. March 31, 2007.
2.04. Organizational Meeting of Grievance Committees
The last duly elected chair of a Committee shall call an organizational meeting of the Committee no later than July 15 of each year; shall administer the oath of office to each new member; and shall preside until the Committee has elected, by a majority vote, its new chair. Members may vote for themselves for the
All persons serving on a Committee at the time position of chair. these rules become effective shall continue to serve for Adopted by orders of Feb. 26, 1991, ~d Oct. 9, 1991, eff. May I, 1992.
585
2.05 RULES OF DISCIPLINARY PROCEDURE
2.05. Oath of Committee Members
As SOQJlas possible after appointment, each newly appointed member of a Committee shall take the following oath to be administered by any person authorized by law to administer. oaths:
"Idosolerhnly,swe~ (or affirm) that I will faithfully execute my duties as a member of the District grievance committee, .as required by the Texas Rules of, Disciplinary Procedure, and will, to the best of my ability, pr.eserve;Prot;ect, and' defend the! .. Constitution and laws of the United States and of tl1~ . Stitte of 'TexaS; " I further 'solemnly sWear'(or afflrm)'that I will keep s~cret all such matters and things as shail come tomy kriowledge as a member of thegrievancecomrilittee arising from or m con-
. nection with each' Discipliiiary Action and Diflciplin~ aryProceeding, uni.e~s· permitte<i ,to' ~ disclose. the same in accordance With the Rules of Disciplinary Procedure, or unIes~ ordered to do so in the course of a judicial proceeding or a proceeding before the BRard of Disciplinary. Appeals. I further solemnly swear (or affirm) that I have neither <lirectly nor jndirectlypaid, offered, or promised to pay, contributed any money or valuable thing, or promised any public or private offlceto secure my appointment. So help me God."
Adopted by orders of Feb. 26, 1991,and Oct. 9, 1991, eff. May 1, 1992.
were discovered or in the exercise of reaSonable diligence should have been discovered. Adopted by orders of Feb. 26, lim, and Oct. 9,1991, eff. May 1, 1992. ~ended by order of IJec.29, 2003, eff.J an. 1, 2004.
2.07. Duties of Committees
Committees shall act through panels, as assigned by . the Committee chairs, to conduct summary disposition doCketS and· evidentiary hearings. No panel may consist of more than one-half of all members of the Comhijtte'eorfewerthan'threemembers. If a mem- " bel" . of a panel is disqul!llfi~<i, recused or .otherw;ise uriableto serve, thechaif shall appoint arepia:cem~nt: Panels must be composed of tWo attOrney members for'eachpublic member. A quorum must include; at •• least one public member for everytwoatto:rney nierobers present and consists of a majority of the men\t '. bership of the panel, and business' shall be conducted . upon. majority vote· of those members present, a ' ... I'linl beirig had. In matters in which evidence 'is' ." taken, no member may vote unless that member has . heard or reviewed all the evidence. It shall be concht~ sively presumed, however, not subject todiscovery6f . challenge in any subsequent proceeding, that eveii" member casting a vote has heard or reviewed all the evidence. No member, attorney or public, may o~. appointed by the chair for both the Summary DisPQsi;. tion docket and the Evidentiary Panel pertaining ttl the same disciplinary matter. Any tie vote is a vote in •
. favor of the position of the Resporident. .
2.06., Assignment of Committee Members
Each member of a Committee shall act through p~nels assigned by the' chair of the Committee for summary disposition dockets and evidentiary hearings. Promptly after assignment, notice must be provided to' the Respondent by' United States certified mail, return receipt requested, of thE) nam~s' and addresses of the panel members llilsignedto eilCh Complaint. A member is disqualified or is subject to recusal as a panel member for :;tn evidentiary he.~ng if a district judge would, under similar circumsta'nces,
Adopted by orders 6fFeb. 26, 1991, and Oct. 9, 1991, eff. May 1,1992 .. Amended by order of Dec. 29, 2003, eff. Jan. 1, 2004.
2.08. Expenses
Members of Committees serve without COrnp€mSI~1 tion but. are entitled to reimbursement by the Bar for their rel!Sonable, actual, and necessary penses. Adopted by orders of Feb. 26,1991, and Oct. 9, 1991, eff. May
2.09. Notice to Parties
be disqualified or recused. If a member is disquali- A Every notice required by this Part to be fled orrecused,·another member shall be appointed by upon the Respondent may be served by U. S. t:t-:I'LUJI"U,
the Committee chair. No peremptory challenges of a mail, return receipt requested, or by any other Committee member are allowed. Any alleged of service permitted by the Texas Rules of grounds for disqualification or recusal of a panel mem- Procedure to the Respondent at the berare conclusively waived if not brought to the Address or to the Respondent's counsel. attention of the panel within ten days after receipt of B. Every notice :required by this Part to be notification of the names and addresses of: me.mbers of upon the Commission may be served by U. S. n",otitiIPfI,
the panel; however, grounds for disqualification or mail, return receipt requested, or by any other recusal not reasonably discoverable within the ten. day of service' permitted by the Texas Rules ·of period may be asserted within ten days after they Procedure, to the address of the Commission's
586
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) DISTRICT GRIEVANCE COMMITTEES 2.13
of record or, if none, to the address designated by the Commission.
C. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail or telephonic document transfer, three days shall be added to the prescribed period. Adopted by order of Dec. 29, 2003, eff. Jan. 1,2004.
2.10. Classification of Inquiries and· Complaints
The Chief Disciplinary Counsel shall within thirty days examine each Grievance received to determine whether it constitutes an Inquiry or a Complaint. If the Grievance is determined to constitute an Inquiry, the Chief Disciplinary Counsel shall notify the Complaint and Respondent of the dismissal. The Complainant may, within thirty days from notification of the dismissal, appeal the determination to the Board of Disciplinary Appeals. If the Board of Disciplinary Appeals affIrms the classification as an Inquiry, the Complainant will be so notified and may within twenty days amend the Grievance one time only by providing new or additional evidence. The Complainant may appeal a decision by the Chief Disciplinary Counsel to dismiss the amended Complaint as an Inquiry to the Board of Disciplinary Appeals. No further amendments or appeals will be accepted. In all instances where a Grievance is dismissed as an Inquiry other than where the attorney is deceased or is not licensed to practice law in the State of Texas, the Chief Disciplinary Counsel shall refer the Inquiry to a voluntary mediation and dispute resolution procedure. If the Grievance is determined to constitute a Complaint, the Respondent shall be provided a copy of the Complaint with notice to respond, in writing, to the allegations of the Complaint. The notice shall advise the Respondent that the Chief Disciplinary Counsel may provide appropriate information, including the Respondent's response, to law enforcement agencies as permitted by Rule 6.08. The Respondent shall deliver the response to both the Office of the Chief Disciplinary Counsel and the Complainant within thirty days after receipt of the notice. Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by order of June 15, 1994, eff. Oct. 1, 1994; renumbered from Rule 2.09 and amended by order of Dec. 29, 2003, eff. Jan. 1, 2004.
2.11. Venue Venue of District Grievance Committee proceedings
shall be in accordance with the following: 587
A Summary Disposition Panel. Proceedings. Proceedings of a Summary Disposition Panel shall be conducted by a Panel for the county where the alleged Professional Misconduct occurred, in whole or in part. If the acts or omissions complained of occurred wholly outside the State of Texas, proceedings shall be conducted by a Panel for the county of Respondent's residence and, if Respondent has no residence in Texas, by a Panel for Travis County, Texas.
B. Evidentiary Panel Proceedings. In an Evidentiary Panel proceeding, venue shall be in the county of Respondent's principal place of practice; or if the Respondent does not maintain a place of practice within the State of Texas, in the county of Respondent's residence; or if the Respondent maintains neither a residence nor a place of practice within the State of Texas, then in the county where the alleged Professional Misconduct occurred, in whole or in part. In all other instances, venue is in Travis County, Texas.
Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by order of June 15, 1994, eff. Oct. 1, 1994; renumbered from Rule 2.10 and amended by order of Dec. 29, 2003, eff. Jan. 1, 2004.
2.12. Investigation and Determination of Just Cause
No more than sixty days after the date by which the Respondent must file a written response to the Complaint as set forth in Rule 2.10, the Chief Disciplinary Counsel shall investigate the Complaint and determine whether there is Just Cause. Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by order of June 15, 1994, eff. Oct. 1, 1994; renumbered from Rule 2.11 and amended by order of Dec. 29, 2003, eff. Jan. 1, 2004.
2.13. Summary Disposition Setting Upon investigation, if the Chief Disciplinary Coun
sel determines that Just Cause does not exist to proceed . on the Compiaint, the Chief Disciplinary Counsel shall place the Complaint on a Summary Disposition Panel docket. At the Summary Disposition Panel docket, the Chief Disciplinary Counsel will present the Complaint together with any information, documents, evidence, and argument deemed necessary and appropriate by the Chief Disciplinary Counsel, without the presence of the Complainant or Respondent. The Summary Disposition Panel shall determine whether the Complaint should be dismissed or should proceed. If the Summary Disposition Panel dismisses the Complaint, both the Complainant and Respondent will be ·so notified. There is no appeal from a determination by the Summary Disposition
2.13 RULES OF DISCIPLINARY PROCEDURE
Panel that the Complaint should be dismissed or should proceed. All Complaints presented to the Summary Disposition Panel and not dismissed shall be placed on the Hearing Docket. The fact that a Complaint was placed 'on the Summary Disposition Panel Docket and not dismissed is wholly inadmissible for any purpose in the instant or any subsequent Disciplinary Proceeding or Disciplinary Action. Files of dismissed Disciplinary Proceedings will be retained for one hundred eighty days, after which time the files may be destroyed. No permanent record will be kept of, Complaints dismissed except to the extent necessary fOf statistical reporting purposes. In all instances where a Complaint is dismissed by a Summary Disposition Panel other than where the attorney is deceased or is not licensed to practice law in the State of Texas, the Chief Disciplinary Counsel shall refer the Inquiry to a voluntary mediation and dispute resolution procedure. ' Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1,1992. Renumbered from Rule 2.12 and amended by order of Dec. 29, 2003, eff. Jan. 1,2004.' ' ,
2.14. Proceeding Upon a Determination of Just Cause
All rights characteristically reposed in a client by the common law of this State as to every Complaint not dismissed by the Summary Disposition Panel are vested in the Commission.
A. Client of Chief Disciplinary Counsel: The Commission is the client of the Chief Disciplinary Counsel for every Complaint not dismissed by the Summary Disposition Panel.
B. Interim Suspension: In any instance in which the Chief Disciplinary Counsel reasonably believes based upon investigation of the Complaint that the Respondent poses a substantial threat of irreparable harm to clients or prospective clients, the Chief Disciplinary Counsel may seek and obtain authority from the Commission to pursue interim suspension of the Respondent's license in accordance with Part XIV of these rules.
C. Disability: In any instance in which the Chief Disciplinary Counsel reasonably believes based upon investigation of the Complaint that the Respondent is suffering from' a Disability to such an extent that either (a) the Respondent's continued practice of law poses a substantial threat of irreparable harm to client or prospective clients; or (b) the Respondent is so impaired as to be unable to meaningfully participate in the preparation of a defense, the Chief Disciplinary Counsel shall seek and obtain client authority to refer the Complaint to
588
the Board of Disciplinary Appeals pursuant to XII of these rules.
D. Notification of Complaint: For each Complaint not dismissed by a' Summary unmosition< Panel, the Chief Disciplinary Counsel, shall give Respondent written notice of the acts and/or sions engaged in by the Respondent and of, Texas Disciplinary Rules of Professional that the Chief Disciplinary Counsel contends violated by the alleged acts and/or omissions. notice shall be given by certified mail, return ceipt requested, sent to the Respondent at Address.
Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended py order of Dec. 23, 1992; renumbered from Rule 2.13 and amended by order of Dec. 29, 2003, eff. Jan. 1, 2004. ,",
2.15. Election
A Respondent given written notice of the allegation~ '. and rule violations complained of, in accordance with Rule 2.14, shall notify the Chief Disciplinary whether the Respondent seeks to have the COlmpllaitrt. heard in a district court of proper venue, with without a jury, or by an Evidentiary Panel of Committee. The election must be in writing and, served upon the Chief Disciplinary Counsel no later than twenty days after the Respondent's receipt of written notification pursuant to Rule 2.14. If , Respondent timely elects to have the Complaint heard' in a district court, the matter will proceed in accordance with Part III hereof. If the Respondent timely , elects to have the Complaint heard by an Evidentiary ,,' Panel, the' matter will proceed in accordance With " Rules 2.17 and 2.18. A Respondent's failure to timely' file an election shall conclusively be deemed as ali.' affirmative election to proceed in accordance with Rules 2.17 and 2.18.; Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Renumbered from Rule 2.14 and amended by order of Dec. 29, 2()()!fi ~~~~ .
2.16. Confidentiality
A. All members and staff of the Office of Chief , Disciplinary Counsel, Board of Disciplinary Appeals;' Committees, and Commission shall maintain as confie: dential all Disciplinary Proceedings and associated, records, except that:
1. the pendency, subject matter, status of an investigation, and final dispositioh, if any, may' disclosed by the Office of Chief Disciplinary Counse~ or Board of Disciplinary Appeals if the Respondent has waived confidentiality, the Disciplinary Proceed~ ing is based on conviction of a serious crime, or
DISTRICT GRIEVANCE COMMITTEES 2.17
disclosure is ordered by a court of competent jurisdiction;
2. if the Evidentiary Panel finds that professional misconduct occurred and imposes any sanction other than a private reprimand.
a. the Evidentiary Panel's final judgment is a public record from the date the judgment is signed; and
b. once all appeals, if any, have been exhausted and the judgment is final, the Office of Chief Disciplinary Counsel shall, upon request, disclose all documents, statements, and other information relating to the Disciplinary Proceeding that came to the attention of the Evidentiary Panel durmg the Disciplinary Proceeding; 3. the record in any appeal to the Board of
Disciplinary Appeals from an Evidentiary Panel's fmal judgment, other than an appeal from a judgment of private reprimand, is a public record; and
4. facts and evidence that are discoverable elsewhere are not made confidential merely because they are discussed or introduced in the course of a Disciplinary Proceeding. B. The deliberations and voting of an Evidentiary
Panel are strictly confidential and not subject to discovery. No person is competent to testify as to such deliberations and voting.
C. Rule 6.08 governs the provision of confidential information to authorized agencies investigating qualifications for admission to practice, attorney discipline enforcement agencies, law enforcement agencies, the State Bar's Client Security Fund, the State Bar's Lawyer Assistance Program, the Supreme Court's Unauthorized Practice of Law Committee and its subcommittees, and the Commission on Judicial Conduct. Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Renumbered from Rule 2.15 and amended by orders of Dec. 29, 2003, eff. Jan. 1, 2004. Amended by orders of Sept. 9, 2009, and Dec. 7, 2009, eff. Jan. 1, 2010.
2.17. Evidentiary Hearings
Within fifteen days of the earlier of the date of Chief Disciplinary Counsel's receipt of Respondent's election or the day following the expiration of Respondent's right to elect, the chair of a Committee having proper venue shall appoint an Evidentiary Panel to hear the Complaint. The Evidentiary Panel may not include any person who served on a Summary Disposition Docket panel that heard the Complaint and must have at least three members but must have no more than one-half as many members as on the Committee. Each Evidentiary Panel must have a ratio of two attorney members for every public member. Pro-
589
ceedings before an Evidentiary Panel of the Committee include:
A. Evidentiary Petition and Service: Not more than sixty days from the earlier of receipt of Respondent's election or Respondent's deadline to elect to proceed before an Evidentiary Panel, the Chief Disciplinary Counsel shall file with the Evidentiary Panel an Evidentiary Petition in the name of the Commission. The Evidentiary Petition shall be served upon the Respondent in accordance with Rule 2.09 and must contain:
1. Notice that the action is brought by the Commission for Lawyer Discipline, a committee of the State Bar.
2. The name of the Respondent and the fact that he or she is an attorney licensed to practice law in the State of Texas.
3. Allegations necessary to establish proper venue.
4. A description of the acts and conduct that gave rise to the alleged Professional Misconduct in detail sufficient to give fair notice to the Respondent of the claims made, which factual allegations may be grouped in one or more counts based upon one or more Complaints.
5. A listing of the specific rules of the Texas Disciplinary Rules of Professional Conduct allegedly violated by the acts or conduct, or other grounds for seeking Sanctions.
6. A demand for judgment that the Respondent be disciplined as warranted by the facts and for any other appropriate relief.
7. Any other matter that is required or may be permitted by law or by these rules. B. Answer: A responsive pleading either admit
ting or denying each specific allegation of Professional Misconduct must be filed by or on behalf of the Respondent no later than 5:00 p.m. on the first Monday following the expiration of twenty days after service of the Evidentiary Petition.
C. Default: A failure to file an answer within the- time permitted· constitutes a default, and all facts alleged in the Evidentiary Petition shall be taken as true for the purposes of the Disciplinary Proceeding. Upon a showing of default, the Evidentiary Panel shall enter an order of default with a finding of Professional Misconduct and shall conduct a hearing to determine the Sanctions to be imposed.
D. Request for Disclosure: The Commission or Respondent may obtain disclosure from the other party of the information or material listed below by serving the other party, no later than thirty days before the fIrst setting of the hearing. The re-
2.17 RULES OF DISCIPLINARY PROCEDURE
sponding party ,must serve a written response on the requesting party within thirty days after service of the request, except that a Respondent served with a request before the answer is due need not respond until fifty days after service of the request. A party who fails to make, amend, or supplement a disclosure in a timely manner may not introduce in evidence the material or. information that. was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the panel finds that there was good cause for the failure to timely make, amend, or supplement the disclosure response; or the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other party. No objection or assertion of work product is permitted to a request under this Rule. A party may request disclosure of any or all of the following: -
1. The correct names of. the parties to the Disciplinary Proceeding.
2. In general, the factual bases of the responding party's claims or defenses (the responding party need not marshal all evidence that may be offered at trial).
3. The name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the disciplinary matter.
4. For any testifying expert, - the expert's name, address, and telephone number; the subject matter on which the expert will testify, and the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them.
5. Any witness statements. E. Limited Discovery: In addition to the Re
quest for Disclosure, the Commission and the Respondent may conduct further discovery with the following limitations:
1. All discovery must be conducted during the discovery period, which begins when the Evidentiary Petition is filed and continues until thirty days before the date set for hearing.
2. Each party may have no more than six hours in total to examine and cross-examine all witnesses in oral depositions.
3. Any party may serve on the other party no more than twenty-five written interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. Each discrete subpart of an interrogatory is considered a separate interrogatory.
590
4. Any party may serve on the other party requests for production and inspection of documents and tangible things.
5. Any party may serve on the other party requests for admission. F. Modification of Discovery Limitations:
Upon a showing of reasonable need, the Evidentiary Panel chair may modify the discovery limitations set forth in Rule 2.17E. The parties may by agreement modify the discovery limitations set forth in Rule 2.17E.
G. Discovery Dispute Resolution: Except where modified by these rules, all discovery disputes shall be ruled upon by the Evidentiary Panel chair generally in accord with the Texas Rules of Civil Procedure; provided, however, that no ruling upon a discovery dispute shall be a basis for reversal solely because it fails to strictly comply with the Texas Rules of Civil Procedure.
H. Subpoena Power: Commission or Respondent may compel the attendance of witnesses, including the Respondent,. and the production of books, documents, papers, banking records, and other things by subpoena. The subpoena must notify the witness of the time, date, and place of appearance and must contain a description of the materials to be produced. Subpoenas must be in writing and signed and issued by the Evidentiary Panel chair. The party seeking the subpoena shall submit it in a proper form and is responsible for securing service. Any contest between the Commission and the Respondent about the materiality of the testimony or production sought by a subpoena shall be determined by the Evidentiary Panel chair, and is subject to review. Subpoenas must be served on witnesses personally or in accordance with Rule 21a of the Texas Rules of Civil Procedure. Proof of service shall be' by certification of the server or by the return receipt. The subpoena is enforceable by the district court of the county in which the attendance or production is required. Witnesses shall be paid witness fees and mileage the same as for a district court.
L Enforcement of Subpoenas and Examination Before a District Judge: If any witness, including the Respondent, fails or refuses to appear or to produce the things named in the subpoena, or refuses to be sworn or to affirm or to testify, the witness may be compelled to appear and produce tangible evidence and to testifY at a hearing before a district judge of the county in which the subpoena was served. The application for such a hearing is to be styled "In re: Hearing Before The District ____ Grievance Committee." The court shall
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DISTRICT GRIEVANCE COMMITTEES 2.18
order a time, date, and place for the hearing and shall notify the Commission, the Respondent, and the witness. Unless the Respondent requests a public hearing, the proceedings before the court shall be closed and all records relating to the hearing shall be sealed and made available only to the Commission, the Respondent, or the witness. If the witness fails or refuses to appear, testify, or produce such tangible evidence, he or she shall be punished for civil contempt.
J. Right to Counsel: The Respondent and the Complainant may, if they so choose, have counsel present during any evidentiary hearing.
K. Alternative Dispute Resolution: -Upon motion made or otherwise, the Evidentiary Panel Chair may order the Commission and the Respondent to participate in mandatory alternative dispute resolution as provided by Chapter 154 of the Civil Practice and Remedies Code or as otherwise provided by law when deemed appropriate.
L. Evidence: The Respondent, individually or through his or her counsel if represented, and the Commission, through the Chief Disciplinary Counsel, . may, if they so choose, offer evidence, examine witnesses and present argument 1 Witness examination may be conducted only by the Commission, the Respondent, and the panel members. The inability or failure to exercise this opportunity does not abate or preclude further proceedings. The Evi~ dentiary Panel chair shall admit all such probative and relevant evidence as he or she deems necessary for a fair and complete hearing, generally in accord with the Texas Rules of Evidence; provided, however, that admission or exclusion of evidence shall be in the discretion of the Evidentiary Panel chair and no ruling upon the evidence shall be a basis for reversal solely because it fails to strictly comply with the Texas Rules of Evidence.
M. Burden of Proof: The burden of proof is upon the Commission for Lawyer Discipline to prove the material allegations of the Evidentiary Petition by a preponderance of the evidence.
N. Record of the HeaTing: A verbatim record of the proceedings will be made by a certified shorthand reporter in a manner prescribed by the Board of Disciplinary Appeals. In the event of an appeal from the Evidentiary Panel to the Board of Disciplinary Appeals, the party initiating the appeal shall pay the costs of preparation of the transcript. Such costs shall be taxed at the conclusion of the appeal by the Board of Disciplinary Appeals.
O. Setting: Evidentiary Panel proceedings must be set for hearing with a minimum of forty-five days' notice to all parties unless waived by all
591
parties. Evidentiary Panel proceedings shall be set for hearing on the merits on a date not later than 180 days after the date the answer is filed, except for good cause shown. If the Respondent fails to answer, a hearing for default may be set at any time not less than ten days after the answer date without further notice to the Respondent. No continuance' may be granted unlflSS required by the interests of justice.
P. Decision: Mter conducting the Evidentiary Hearing, the Evidentiary Panel shall issue a judgment within thirty days. In any Evidentiary Panel proceeding where Professional Misconduct is found to have occurred, such judgment shall include findings of fact, conclusions of law and the Sanctions to be imposed. The Evidentiary Panel may:
1. dismiss the Disciplinary Proceeding and refer it to the voluntary mediation and dispute resolution procedure;
2. find that the Respondent suffers from a disability and forward that finding to the Board of Disciplinary Appeals for referral to a district disability committee pursuant to Part XII; or
3. find that Professional Misconduct occurred and impose Sanctions.
Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by order of June 15, 1994, eff. Oct. 1, 1994; renumbered from Rule 2.16 and amended by order of Dec. 29, 2003, eff. Jan. 1, 2004. 1
So in order.
2.18. Imposition of Sanctions
The Evidentiary Panel may, in its discretion, conduct a separate hearing and receive evidence as to the appropriate Sanctions to be imposed. Indefinite Disability sanction is not an available Sanction in a hearing before an Evidentiary Panel. In determining the appropriate Sanctions, the Evidentiary Panel shall consider:
A The nature and degree of the Professional Misconduct for which the Respondent is being sanctioned;
B. The seriousness of and circumstances sur-rounding the Professional Misconduct;
C. The loss or damage to clients; D. The damage to the profession; E. The assurance that those who seek legal
services in the future will be insulated from the type of Professional Misconduct found;
F. The profit to the attorney; G. The avoidance of repetition; H. The deterrent effect on others;
2.18 RULES OF DISCIPLINARY PROCEDURE
I. The maintenance of respect for the legal profession;
J. The conduct of the Respondent during the course of the Disciplinary Proceeding; In addition, the Respondent's disciplinary record,
including any private reprimands, is admissible on the appropriate Sanction to be imposed. Respondent's Disability may not be considered in mitigation, unless Respondent demonstrates that he or she is successfully pursuing in good faith a program of recovery or appropriate course of treatment. Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Renumbered from Rule 2.17 and amended by order of Dec. 29, 2003, eff. Jan. 1, 2004.
2.19. Terms of Judgment In any judgment of disbarment or suspension that
is not stayed, the Evidentiary Panel shall order the Respondent to surrender his or her law license and permanent State Bar card to Chief Disciplinary Counsel for transmittal to the Clerk of the Supreme Court. In all judgments imposing disbarment or. suspension, the Evidentiary Panel shall enjoin the Respondent from practicing law or from holding himself or herself out as an attorney eligible to practice law during the period of disbarment or suspension. In all judgments of disbarment, suspension, or reprimand, the Evidentiary Panel shall make all other orders as it finds appropriate, including probation of all or any portion of suspension. Adopted by order of Dec. 29, 2003, eff. Jan. 1, 2004.
2.20. Restitution In all cases in which the proof establishes that the
Respondent's misconduct involved the misappropriation of funds and the Respondent is disbarred or suspended, the panel's judgment must require the Respondent to make restitution during the period of suspension, or before any consideration of reinstatement from disbarment, and must further provide that its judgment of suspension shall remain in effect until evidence of satisfactory restitution is made by Respondent and verified by Chief Disciplinary Counsel. Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Renumbered from Rule 2.18 and amended by order of Dec. 29, 2003, eff. Jan. 1, 2004.
2.21. Notice of Decision
the date of the notice. If the Evidentiary Panel finds that the Respondent committed professional misconduct, a copy of the Evidentiary Petition and the judgment shall be transmitted by the Office of the Chief Disciplinary Counsel to the Clerk of the Supreme Court. The Clerk of the Supreme Court shall make an appropriate notation on the Respondent's permanent record. Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by order of June 15, 1994, eff. Oct. 1, 1994. Renumbered from Rule 2.19 and amended by order of Dec. 29, 2003, eff. Jan. 1, 2004.
2.22. Post Judgment Motions Any motion for new hearing or motion to modify the
judgment must comport with the provisions of the applicable Texas Rules of Civil Procedure pertaining to motions for new trial or to motions to modify judgments. Adopted by order of Dec. 29, 2003, eff. Jan. 1, 2004.
2.23. Probated Suspension-Revocation Procedure
If all or any part of a suspension from the practice of law is probated under this Part II, the Board of Disciplinary Appeals is hereby granted jurisdiction for the full term of suspension, including any probationary period, to hear a motion to revoke probation. If the Chief Disciplinary Counsel files a motion to revoke probation, it shall be set for hearing within thirty days of service of the motion upon the Respondent. Service upon the Respondent shall be sufficient if made in accordance with Rule 21a of the Texas Rules of Civil Procedure. Upon proof, by a preponderance of the evidence, of a violation of probation, the same shall be revoked and the attorney suspended from the practice of law for the full term of suspension without credit for ,any probationary time served. The Board of Disciplinary Appeals' Order revoking a probated suspension cannot be superseded or stayed. Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by order of June 15, 1994, eff. Oct. 1, 1994; renumbered from Rule 2.20 and amended by order of Dec. 29, 2003, eff. Jan. 1, 2004.
2.24. Appeals by Respondent or Commission: The Respondent or Commission may appeal the
judgment to the Board of Disciplinary Appeals. Such appeals must be on the record, determined under the
The Complainant, the Respondent, and the Com- standard of substantial evidence. Briefs may be filed mission must be notified in writing of the judgment of as a matter of right. The time deadlines for such the Evidentiary Panel. The notice sent to the Re- briefs shall be promulgated by the Board of Disciplin-spondent and the Commission must clearly state that ary Appeals. An appeal, if taken, is perfected when a any appeal of the judgment must be filed with the written notice of appeal is filed with the Board of Board of Disciplinary Appeals within thirty days of Disciplinary Appeals. The notice of appeal must re-
592
1 l~"'~ ::'? TRIAL IN UlSTKlt.:'l' t.:UUKT t .... U..l.
flect the intention of the Respondent or the Commission to appeal and identify the decision from which appeal is perfected. The notice of appeal must be filed within thirty days after the date of judgment, except that the notice of appeal must be filed within ninety days after the date of judgment if any party timely files a motion for new trial or a motion to modify the judgment. Adopted by orders of Feb. 26, 1991, ancl Oct. 9, 1991, eff. May 1, 1992. Renumbered in part from Rule 2.21 and amended by order of Dec. 29, 2003, eff .• Jan. I, 2004.
2.25. No Supersedeas
An Evidentiary Panel's order of disbarment cannot be superseded or stayed. The Respondent may within thirty days from entry of judgment petition the Evidentiary Panel to stay a judgment of suspension. The Respondent carries the burden of proof by preponderance of the evidence to establish by competent evidence that the Respondent's continued practice of law does not pose a continuing threat to the welfare of Respondent's clients or to the public. An order of suspension must be stayed during the pendency of any appeals therefrom if the Evidentiary Panel finds that the Respondent has met that burden of proof. An Evidentiary Panel may condition its stay upon reasonable terms, which may include, but are not limited to, the cessation of any practice found to constitute Professional Misconduct, or it may impose a requirement of an affirmative act such as an audit of a Respondent's client trust account. Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May I, 1992. Renumbered in pmt from Rule 2.21 and amended by order of Dec. 29, 2003, eff. Jan. I, 2004.
2.26. Disposition on Appeal
The Board of Disciplinary Appeals may, in any appeal of the judgment of an Evidentiary Panel within its jurisdiction:
A. Mfirm the decision of the Evidentiary Panel, in whole or in part;
B. Modify the Evidentiary Panel's judgment and affirm it as modified;
C. Reverse the decision of the Evidentiary Panel, in whole or in part, and render the judgment that the Evidentiary Panel should have rendered;
D. Reverse the Evidentiary Panel's judgment and remand the Disciplinary Proceeding for further proceeding by either the Evidentiary Panel or a statewide grievance committee panel composed of members selected from state bar districts other than the district from which the appeal was taken;
E. Vacate the Evidentiary Panel's judgment and dismiss the case; or
F. Dismiss the appeal.
Adopted by order of Dec. 29, 2003, eff. Jan. I, 2004.
2.27. Remand to Statewide Grievance Committee Panel
In determining whether a remand is heard by a statewide grievance committee panel, the Board of Disciplinary Appeals must find that good cause was shown in the record on appeal. The Board of Disciplinary Appeals shall randomly select the members of the statewide grievance committee panel from grievance committees other than the district from which the appeal was taken. Six such members shall be selected, four of whom are attorneys and two of whom are public members. The statewide grievance committee panel, once selected, shall have all duties and responsibilities of the Evidentiary Panel for purposes of the remand. Adopted by order of Dec. 29, 2003, eff. Jan. I, 2004.
2.28. Appeal to Supreme Court of Texas
An appeal from the decision of the Board of Disciplinary Appeals on an Evidentiary Proceeding is to the Supreme Court of Texas in accordance with Rule 7.11. Adopted by order of Dec. 29, 2003, eff. Jan. I, 2004.
PART III. TRIAL IN DISTRICT COURT
3.01. Disciplinary Petition If the Respondent timely elects to have the Com
plaint heard by a district court, with or without a jury, in accordance with Rule 2.15, the Chief Disciplinary Counsel shall file not more than sixty days after receipt of Respondent's election to proceed in district court a Disciplinary Petition in the name of the Commission with the Clerk of the Supreme Court of Texas. The petition must contain:
593
A. Notice that the action is brought by the Commission for Lawyer Discipline, a committee of the State Bar.
B. The name of the Respondent and the fact that he or she is an attorney licensed to practice law in the State of Texas.
C. Allegations necessary to establish proper venue.