LIT COMMENTARY
Published; 17 Jan., 2020
The Secret Seven. The Private Reprimand of Select Attorneys continues into 2020 and the Texas Bar Journal lists all the violations for these seven nameless Texas lawyers. This is inconsistent with a Profession which claims to strive to serve Texans and ensure that they receive information on their website about potentially hazardous legal appointments, namely bad lawyers or those that have a tendency to put themselves before the public. Silent punishment is far from transparent and this legal disciplinary system needs to be changed.
Disciplinary Actions — January 2020 State Bar lists ( from the State Bar of Texas)
General questions regarding attorney discipline should be directed to the Chief Disciplinary Counsel’s Office, toll-free (877) 953-5535 or (512) 453-5535. The Board of Disciplinary Appeals may be reached at (512) 475-1578. Information and copies of actual orders are available at www.txboda.org. The State Commission on Judicial Conduct may be contacted toll-free, (877) 228-5750 or (512) 463-5533. Please note that persons disciplined by the Commission on Judicial Conduct are not necessarily licensed attorneys.
Houston area
JUDICIAL ACTIONS To read the entire public sanctions, go to scjc.texas.gov.
On November 12, 2019, the State Commission on Judicial Conduct issued an order of suspension without pay to Alexandra Smoots-Thomas, judge of the 164th Civil District Court, Houston, Harris County.
On November 12, 2019, the State Commission on Judicial Conduct issued a public warning to Michael McSpadden, former judge of the 209th Criminal District Court, Houston, Harris County.
RESIGNATION
On November 12, 2019, the Supreme Court of Texas accepted the resignation, in lieu of discipline, of James P. Brady [#02847400], 73, of Houston. At the time of Brady’s resignation, he had two pending grievances. In both matters, Brady neglected the legal matters entrusted to him, frequently failed to carry out completely the obligations he owed to his client, and failed to hold funds belonging to his clients that were in his possession in connection with the representation separate from his own property. Also, upon termination of representation, Brady failed to refund advance payments of fees that had not been earned and failed to timely furnish to the Office of Chief Disciplinary Counsel a response or other information as required by the Texas Rules of Disciplinary Procedure. In one of those two matters, Brady also failed to keep his client reasonably informed about the status of the legal matter and to promptly comply with reasonable requests for information and failed to explain a legal matter to the extent reasonably necessary to permit his client to make informed decisions regarding the representation. Brady violated Rules 1.01(b)(1), 1.01(b)(2), 1.03(a), 1.03(b), 1.14(a), 1.15(d), and 8.04(a)(8).
SUSPENSION
On November 4, 2019, William Kauper Cheadle [#04162950], 62, of Houston, received a 30-month fully probated suspension. An evidentiary panel of the District 4 Grievance Committee found that, while representing one client, Cheadle frequently failed to carry out completely the obligations he owed to his client, failed to keep his client reasonably informed about the status of the legal matter and to promptly comply with reasonable requests for information, and failed to explain a legal matter to the extent reasonably necessary to permit his client to make informed decisions regarding the representation. While representing another client, Cheadle failed to explain a legal matter to the extent reasonably necessary to permit his client to make informed decisions regarding the representation and failed to hold funds belonging in whole or in part to his client that was in his possession in connection with the representation separate from his own property. Also, upon termination of representation, Cheadle failed to refund advance payments of fees that had not been earned and he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. Cheadle violated Rules 1.01(b)(1), 1.03(a), 1.03(b), 1.14(a), 1.15(d), and 8.04(a)(3). He was ordered to pay $1,500 in attorneys’ fees and direct expenses.
Rest of Texas
JUDICIAL ACTIONS To read the entire public sanction, go to scjc.texas.gov
On November 12, 2019, the State Commission on Judicial Conduct issued a public warning to Dianne Hensley, justice of the peace Precinct 1, Place 1, Waco, McLennan County.
SUSPENSIONS
On October 17, 2019, Steven Wayne Brooks [#00793397], 52, of Dallas, received a two-year fully probated suspension effective October 15, 2019. An evidentiary panel of the District 6 Grievance Committee found that in May 2018 Brooks was retained by the complainant to handle a family law matter. Brooks failed to keep the client’s fee in a separate trust account. Upon termination of representation, Brooks failed to refund advance payments of fees that had not been earned. Brooks violated Rules 1.14(a) and 1.15(d). He was ordered to pay $766.25 in restitution and $747 in attorneys’ fees and direct expenses.
On November 7, 2019, Kenavon Tramayne Carter [#24044913], 46, of Austin, accepted a 12-month fully probated suspension effective December 1, 2019. An investigatory panel of the District 9 Grievance Committee found that Carter failed to timely return an unearned fee in a criminal matter. Carter also failed to provide the Office of Chief Disciplinary Counsel with a response to the grievance as required by the Texas Rules of Disciplinary Procedure. Carter violated Rules 1.14(b) and 8.04(a)(8). He was ordered to pay $450.62 in attorneys’ fees and direct expenses.
On November 26, 2019, Beauregard Driller Fiegel [#24086782], 34, of San Antonio, accepted a three-year fully probated suspension effective January 1, 2020. An evidentiary panel of the District 9 Grievance Committee found that Fiegel neglected a client’s matter, failed to keep a client reasonably informed, and failed to respond to the grievance. Fiegel violated Rules 1.01(b)(1), 1.03(a), and 8.04(a)(8). He was ordered to pay $500 in attorneys’ fees and direct expenses.
On September 26, 2019, Arturo A. Guzman [#08654525], 55, of San Marcos, received a one-year fully probated suspension effective October 1, 2019. An evidentiary panel of the District 15 Grievance Committee found that Guzman neglected a client’s matter, failed to keep a client reasonably informed, failed to keep a client’s funds in a trust or escrow account, failed to respond to lawful demands for information from a disciplinary authority, failed to deliver a client’s funds, and upon termination, failed to refund unearned fees and engaged in conduct involving misrepresentation. Guzman violated Rules 1.01(b)(1), 1.03(a), 1.14(a), 1.14(b), 1.15(d), 8.01(b), and 8.04(a)(3). He was ordered to pay $753.37 in restitution and $7,140.57 in attorneys’ fees and direct expenses.
On November 19, 2019, Barata Roy Hollis [#24057584], 48, of Frisco, received a 12-month fully probated suspension effective December 1, 2019. An investigatory panel of the District 6 Grievance Committee found that Hollis neglected several legal matters entrusted to her by a client. Hollis failed to keep the client reasonably informed about the status of the legal matters, failed to promptly comply with reasonable requests for information from the client, and failed to explain the legal matters to the extent reasonably necessary to permit her client to make informed decisions regarding the representation. Hollis misrepresented the status and/or details of several legal matters to her client. Hollis violated Rules 1.01(b)(1), 1.03(a), 1.03(b), and 8.04(a)(3). She was ordered to pay $675 in attorneys’ fees and direct expenses.
On October 24, 2019, Jonathan Paul Mason [#24089842], 42, of San Antonio, accepted a 12-month fully probated suspension effective November 15, 2019. An evidentiary panel of the District 10 Grievance Committee found that Mason failed to hold a client’s funds in a trust account, failed to deliver a client’s funds, and failed to take reasonable remedial actions to mitigate the consequences of another lawyer’s misconduct. Mason violated Rules 1.14(a), 1.14(b), 5.01(a), and 5.01(b).
Currently Not Eligible to Practice
On November 18, 2019, Breccia M. McDermed [#24052206], 43, of Waco, accepted a two-year fully probated suspension effective December 1, 2019. An investigatory panel of the District 8 Grievance Committee found that while representing a client in a divorce matter, McDermed failed to timely provide documents to, and communicate with, her client. The panel also found that after McDermed was subsequently terminated by the client, McDermed failed to return the client’s file and billed for services after she was terminated. Additionally, in her response to the complainant’s grievance, McDermed provided the Office of Chief Disciplinary Counsel with an email purportedly sent to her client with a copy of a pleading in his case. The email was dated December 12, 2019. McDermed submitted her response to the grievance on April 17, 2019, eight months prior to the date of the email. McDermed violated Rules 1.03(a), 1.15(a)(3), 1.15(d), 8.01(a), and 8.04(a)(3).
A Foreclosure Creditor Rights Attorney for BDF Law Group in Addison is retained on a car accident case in JP Court for $1,500 fee. Times are Tough.
On October 29, 2019, John David Milks [#24045106], 41, of Irving, received a three-month fully probated suspension effective November 1, 2019. An investigatory panel of the District 7 Grievance Committee (Christopher Taylor) found that the complainant hired Milks to appeal a civil suit from a Justice of the Peace Court. During the representation, Milks neglected the legal matter and failed to explain the appeal process to the extent reasonably necessary to permit the complainant to make informed decisions regarding the representation. Milks violated Rules 1.01(b)(1) and 1.03(b). He was ordered to pay $1,500 in restitution and $500 in attorneys’ fees and direct expenses.
Texas Lawyer Jami Nance was in a Jam after dipping into the Clients Funds and writing her client a “Hot Check” for $78k.
On November 2, 2019, Jami Kay Shrader Nance [#24069057], 42, of El Paso, accepted a one-year fully probated suspension effective November 15, 2019. An evidentiary panel of the District 10 Grievance Committee found that Nance failed to hold a client’s funds in a trust account, failed to deliver client’s funds, and failed to take reasonable remedial actions to mitigate the consequences of another lawyer’s misconduct. Nance violated Rules 1.14(a), 1.14(b), 5.01(a), and 5.01(b).
At least 5 client complaints against this personal injury focused lawyer who was helping himself to the injury settlements receives a partial suspension from Richard Rogers, Chair.
That’s Corpus Christi for y’all, especially if you take on your old boss, Thomas J. Henry.
On October 31, 2019, Greggory Allen Teeter [#24033264], 50, of Corpus Christi, agreed to a five-year partially probated suspension effective November 1, 2019, with the first 30 months actively served and the remainder probated. An evidentiary panel of the District 11 Grievance Committee found that Teeter neglected a client’s matter, failed to keep clients reasonably informed, failed to return a client’s file, failed to hold funds in trust and separate from his own property, failed to promptly notify and deliver funds to parties entitled to receive funds, failed to abide by a client’s decisions, and failed to respond to four grievances. Teeter violated Rules 1.01(b)(1), 1.02(a)(2), 1.03(a), 1.14(a), 1.14(b), 1.14(c), 1.15(d), 8.04(a)(3), and 8.04(a)(8). He was ordered to pay $4,000 in attorneys’ fees and direct expenses.
UPDATE: Resigned in Lieu of Discipline
On August 16, 2019, Brigida Rodriguez [#24046743], 64, of Dallas, received a 24-month partially probated suspension, with the first nine months actively served and the remainder probated. An evidentiary panel of the District 6 Grievance Committee found that Rodriguez frequently failed to carry out completely the obligations she owed to her client, failed to keep her client reasonably informed about the status of her case, and failed to promptly comply with reasonable requests for information from her client. Rodriguez failed to respond to the grievance. Rodriguez violated Rule 1.01(b)(2), 1.03(a), and 8.04(a)(8). She was ordered to pay $1,780 in attorneys’ fees and $645 in direct expenses.
On October 28, 2019, Shanon Keith Stanfield [#24056738], 36, of Austin, accepted a three-month fully probated suspension effective November 1, 2019. An evidentiary panel of the District 9 Grievance Committee found that while representing a client in a civil litigation matter, Stanfield failed to communicate with his client and failed to provide his client with any updates concerning the matter. Stanfield violated Rule 1.03(a). He was ordered to pay $587.50 in attorneys’ fees and direct expenses.
On October 16, 2019, Curtis Lilly [#24030063], 47, of Fort Worth, received a nine-month fully probated suspension effective October 15, 2019. An evidentiary panel of the District 6 Grievance Committee found that in representing the complainant, Lilly neglected the legal matter entrusted to him by failing to appear at numerous court hearings. Lilly knowingly disobeyed an obligation under a ruling by a tribunal by failing to appear at an October 27, 2017, hearing for which Lilly had been ordered to appear by the presiding judge. On November 2, 2017, Lilly filed a motion to recuse the presiding judge in the complainant’s legal matter in which Lilly knowingly made several false statements of material fact to the tribunal. Lilly engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. Lilly violated Rules 1.01(b)(1), 3.03(a)(1), 3.04(d), and 8.04(a)(3). He was ordered to pay $1,192.50 in attorneys’ fees and $474 in direct expenses.
PUBLIC REPRIMANDS
On November 7, 2019, Kenavon Tramayne Carter [#24044913], 46, of Austin, accepted a public reprimand. An investigatory panel of the District 9 Grievance Committee found that while representing a client in a criminal matter, Carter failed to explain the matter to the extent reasonably necessary to permit his client to make informed decisions. Carter also failed to provide the Office of Chief Disciplinary Counsel with a response to the grievance as required by the Texas Rules of Disciplinary Procedure. Carter violated Rules 1.03(b) and 8.04(a)(8). He was ordered to pay $653.52 in attorneys’ fees and direct expenses.
On November 4, 2019, Jeffery Charles King [#24038039], 43, of Dallas, entered into an agreed judgment of public reprimand. An evidentiary panel of the District 6 Grievance Committee found that in December 2014, the complainant hired King to file an administrative appeal on his behalf. In representing the complainant, King neglected the legal matter entrusted to him by failing to file the administrative appeal. King violated Rule 1.01(b)(1).
Ethics Question of the Month – January 2020
Lawyer Andrew and Lawyer Beatrice are involved in contentious litigation on behalf of their clients. During a heated argument in court over a pretrial motion, Andrew says “Well, judge, you know how emotional women lawyers get sometimes.” Beatrice decides to let this comment go, not wanting to create a distraction or run the risk of annoying the judge while she is trying to be persuasive on what she considers to be an important matter for her client. Over the next few minutes, things deteriorate and Andrew again disparages Beatrice, saying things like “Your Honor, I think my opponent’s behavior in this case demonstrates conclusively why women attorneys are not cut out to be litigators.”
Finally, Beatrice has had enough and asks the judge to put a stop to Andrew’s comments regarding her and her gender. The judge says “well, let’s see if we can keep this on topic” and then asks a specific question about the merits. The judge does not address Beatrice’s complaints during the rest of the hearing.
Which of the following is most accurate?
A. Both Andrew and the judge violated their ethical obligations under the applicable rules
B. Lawyer Andrew violated the Disciplinary Rules of Professional Conduct, but the judge did not violate the Code of Judicial Conduct.
C. The judge violated the Code of Judicial Conduct, but Andrew did not violate the Disciplinary Rules of Professional Conduct.
D. Neither violated any enforceable ethical rules because the behavior in question, at worst, violated the Texas Lawyer’s Creed, which is, by its terms, merely “aspirational.”
Answer: A.
Texas Lawyers are bound by the Texas Disciplinary Rules of Professional Conduct (TDRPC), while Texas judges are bound by the Texas Code of Judicial Conduct. Both have provisions dealing with bias.
Rule 5.08 of the TDRPC reads:
Prohibited Discriminatory Activities
(a) A lawyer shall not willfully, in connection with an adjudicatory proceeding, except as provided in paragraph (b), manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity.
(b) Paragraph (a) does not apply to a lawyer’s decision whether to represent a particular person in connection with an adjudicatory proceeding, nor to the process of jury selection, nor to communications protected as confidential information under these Rules. See Rule 1.05(a),(b). It also does not preclude advocacy in connection with an adjudicatory proceeding involving any of the factors set out in paragraph (a) if that advocacy:
(i) is necessary in order to address any substantive or procedural issues raised by the proceeding; and
(ii) is conducted in conformity with applicable rulings and orders of a tribunal and applicable rules of practice and procedure.
Lawyer Andrew clearly is exhibiting “bias or prejudice” on the basis of sex by “words or conduct” toward Lawyer Beatrice simply because she is a woman. The various exceptions outlined in Rule 5.08(b) do not appear to apply here.
The only question is whether Andrew was acting “willfully” when he made his remarks. It appears that he was – his comments were made more than once, and were made with the obvious intention of criticizing Beatrice based on her gender in an attempt to prejudice the judge against her apart from any substantive argument. Andrew’s behavior is a clear violation of Rule 5.08.
The judge is bound by Canon 3 of the Texas Code of Judicial Conduct, which reads in part:
B. Adjudicative Responsibilities
(6) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not knowingly permit staff, court officials and others subject to the judge’s direction and control to do so.
(7) A judge shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status against parties, witnesses, counsel or others. This requirement does not preclude legitimate advocacy when any of these factors is an issue in the proceeding.
The judge did not say anything that could be construed as biased, so he (or she) did not violate Canon (3)(B)(6). However, the judge failed to require that Andrew refrain from making his biased and prejudiced remarks, even after being asked to do so by Beatrice. The judge’s failure to respond to this direct request to prevent Lawyer Andrew from making statements manifesting clear bias and prejudice did violate Canon (3)(B)(7).
The Texas Rule pertaining to bias or prejudice by lawyers is in accordance with the ABA Model Rules. Rule 8.4 states in part:
It is professional misconduct for a lawyer to:
g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.
Comment 3 to Rule 8.4 states that:
Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct.
Finally, the Texas Lawyer’s Creed does address this issue, stating in Section III(10) that “l will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses.” As noted, however, the Creed is “aspirational” in nature because it is a statement of professionalism and civility and not a set of mandatory rules on par with the TDRPC:
These rules are primarily aspirational. Compliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon re-enforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts through their inherent powers and rules already in existence. These standards are not a set of rules that lawyers can use and abuse to incite ancillary litigation or arguments over whether or not they have been observed.
While the judge clearly could have used inherent contempt powers to address Andrew’s behavior in the courtroom, Texas lawyers are disciplined only for violations of the TDRPC. A is the correct response.
Posted: 12/27/2019 12:00:00 PM by TCLE Editor
