Texas Bankruptcy Lawyer Finches $88k in Client Funds and Is Not in Jail nor Disbarred

On July 6, 2020, Richard Otto Habermann [#08665530], 74, of McAllen, agreed to a five-year partially probated suspension effective July 1, 2020, with the first six months actively served and the remainder probated.

An investigatory panel of the District 12 Grievance Committee found that Habermann failed to hold funds related to a representation separate from his own property and failed to deliver funds to parties entitled to receive the funds promptly.

Habermann violated Rules 1.14(a) and 1.14(b). He was ordered to pay $88,672 in restitution and $800 in attorneys’ fees and direct expenses.

FILE NO. 201905812

IN THE MATTER OF:

RICHARD OTTO HABERMANN,

§ BAR NO . 08665530 §

INVESTIGATORY PANEL 12-3

DISTRICT 12

GRIEVANCE COMMITTEE

AGREED JUDGMENT OF PARTIALLY PROBATED SUSPENSION

Agreement of Parties

Chief Disciplinary Counsel and Respondent, Richard Otto Habermann, Texas Bar Number 08665530, announce that an agreement has been reached on all matters including the imposition of a Partially Probated Suspension.

Jurisdiction and Venue

The Investigatory Panel 12-3, having conducted an Investigatory Hearing on June 4, 2020 on the Complaint filed by Jose Rodriguez, finds that it has jurisdiction over theparties and the subject matter of this action, and that venue is proper.

Professional Misconduct

The Investigatory Panel, having considered the admissions, stipulations and agreements of the parties, finds Respondent has committed Professional Misconduct as defined by Rule· j .06(CC ) of the Texas Rules of Disciplinary Procedure.

Findings of Fact

Chief Disciplinary Counsel and Respondent agree to the following findings of fact.

Accordingly, the Investigatory Panel finds:

1.     Respondent is an attorney licensed to practice law in Texas and is a member of the State Bar of Texas.

2. Respondent’s Professional Misconduct occurred, in whole or in part, in Hidalgo County, Texas.

3. Respondent failed to keep money belonging to Jose Rodriguez, Maria Felicitas Garcia and Juan Jesus Guerra separate from Respondent’s personal property.

4. Respondent failed to disburse money owed to Jose Rodriguez, Maria Felicitas Garcia and Juan Jesus Guerra.

5. 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 $800.00.

6. Respondent owes restitution in the amount of $88,672.00 payable to Jose Rodriguez, Maria Felicitas Garcia and Juan Jesus Guerra.

Conclusions of Law

Based on the agreed findings of fact, the Investigatory Panel finds that the following Texas Disciplinary Rules of Professional Conduct have been violated: 1.14(a), 1.14(b).

Sanction

It is AGREED and ORDERED that the sanction of a Partially Probated Suspension shall be imposed against Respondent and is in accordance with Part XV of the Texas Rules of Disciplinary Procedure.

Accordingly, it is ORDERED, ADJUDGED and DECREED that Respondent be suspended from the practice of law for a period of five years and six months, beginning July 1, 2020 and ending January 1 2026, provided Respondent complies with the following terms and conditions. Respondent shall be actively suspended from the practice of law for a period of six months beginning July 1, 2020 and ending January 1, 2021. If Respondent complies with all of the following terms and conditions timely, the five-year period of probated suspension shall begin on January 1, 2021, and shall end on January 1, 2026:

1. Respondent shall pay all reasonable and necessary attorney’s fees and direct expenses to the State Bar of Texas in the amount of $800.00. The payment shall be due and payable on or before August 1, 2020, and shall be made by certified or cashier’s check or money order. Respondent shall forward the funds, made payable to the State Bar of Texas, Chief Disciplinary Counsel ‘s Office, P.O. Box 12487, Austin, TX 78711-2487 (1414 Colorado St., Austin, TX 78701).
2. Respondent shall pay restitution on or before January 1, 2021, to Jose Rodriguez, Maria Felicitas  Garcia  and Juan Jesus Guerra in the amount of $88,672.00.  Respondent shall pay the restitution by certified or cashier’s check or money order made payable to Jose Rodriguez, Maria Felicitas Garcia and Juan Jesus Guerra and delivered to the State Bar of Texas, Chief Disciplinary Counsel’s Office, P.O. Box 12487, Austin, TX 78711-2487 (1414 Colorado St., Austin, TX 78701).
3. Respondent shall make contact with the Chief Disciplinary Counsel’s Offices’ Compliance Monitor at 877-953-5535, ext. 1334 and Special Programs Coordinator at 877-953-5535, ext. 1323, not later than seven (7) days after receipt of a copy of this judgment to coordinate Respondent’s compliance.

Should Respondent fail to comply with all of the above terms and conditions timely, Respondent shall remain actively suspended until the date of compliance or until January 1, 2026, whichever occurs first.

Terms of Active Suspension

It is further ORDERED that during the term of active suspension, or any period of active suspension that may be imposed upon Respondent by the Board of Disciplinary Appeals as a result of a probation revocation proceeding, Respondent shall be 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 counsel or in any representative capacity in any proceeding in any Texas or Federal court or before any administrative body; or holding himself out to others or using [his/her] name, in any manner, in conjunction with the words “attorney at law,” “attorney,” “counselor at law,” or “lawyer.”

It is further ORDERED that, on or before July 1, 2020, Respondent shall notify each of Respondent’s current clients and opposing counsel in writing of this suspension.

In addition to such notification, it is further ORDERED that, on or before July 1, 2020, Respondent shall return any files, papers, unearned monies and other property belonging to current clients in Respondent’s possession to the respective clients or to another attorney at the client’s request.

It is further ORDERED Respondent shall, on or before July 1, 2020, 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 number of the client(s} Respondent is representing.

It is further ORDERED Respondent shall file with the State Bar of Texas, Chief Disciplinary Counsel’s Office, P.O. Box 12487, Austin, TX 78711-2487 (1414 Colorado St., Austin, TX 78701), on or before July 1, 2020, an affidavit affirming:

1. all current clients and opposing counsel have been notified of Respondent’s suspension;

2. all files, papers, monies and other property belonging to all current clients have been returned; and

3. Respondent has notified in writing each and every justice of the peace, judge, magistrate, and chief justice of each and every court 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 number of the client(s} Respondent is representing in Court.

If it is Respondent’s assertion that at the time of suspension he possessed no current clients and/or Respondent was not in possession of any files, papers, monies or other property belonging to clients, Respondent shall submit an affidavit attesting that, at the time of suspension, Respondent had no current clients and did not possess any files, papers, monies and other property belonging to clients.

It is further ORDERED that, on or before July 1, 2020, Respondent shall surrender his law license and permanent State Bar Card to the State Bar of Texas, Chief Disciplinary Counsel’s Office, P.O. Box 12487, Austin, TX 78711-2487 (1414 Colorado St., Austin, TX 78701), to be forwarded to the Supreme Court of Texas.

Terms of Probation

It is further ORDERED that during all periods of suspension, Respondent shall be under the following terms and conditions:

4. Respondent shall not violate any term of this judgment.
5. Respondent shall not engage in professional misconduct as defined by Rule 1.06(CC) of the Texas Rules of Disciplinary Procedure.
6. Respondent shall not violate any state or federal criminal statutes.
7. Respondent shalt keep State Bar of Texas membership department notified of current mailing, residence and business addresses, email addresses and telephone numbers.
8. Respondent shall comply with Minimum Continuing Legal Education requirements.
9. Respondent shall comply with Interest on Lawyers Trust Account (IOLTA) requirements.
10. Respondent shall promptly respond to any request for information from the Chief Disciplinary Counsel in connection with any investigation of any allegations of professional misconduct.
11. Respondent shall make contact with the Chief Disc[plinary Counsel’s Offices’ Compliance Monitor at 877-953-5535, 1334 and Special Programs Coordinator at 877-953-5535, ext. 1323, not later than seven (7) days after receipt of a copy of this judgment to coordinate Respondent’s compliance.

Probation Revocation

Upon information that Respondent has violated a term of this judgment, the Chief Disciplinary Counsel may, in addition to all other remedies available, file a motion to revoke probation pursuant to the Texas Rules of Disciplinary Procedure with the Board of Disciplinary Appeals (“BODA”) and serve a copy of the motion on Respondent pursuant to Tex.R.Civ.P.21a.

BODA shall conduct an evidentiary hearing. At the hearing, BODA shall determine by a preponderance of the evidence whether Respondent has violated any term of this Judgment. If BODA finds grounds for revocation, BODA shall enter an order revoking probation and placing Respondent on active suspension from the date of such revocation order. Respondent shall not be given credit for any term of probation served prior to revocation.

It is further ORDERED that any conduct on the part of Respondent which serves as the basis for a motion to revoke probation may also be brought as independent grounds for discipline as allowed under the Texas Disciplinary Rules of Professional Conduct and Texas Rules of Disciplinary Procedure.

Restitution, Attorney’s Fees and Expenses

It is further ORDERED Respondent shall pay restitution, on or before January 1, 2021, to Jose Rodriguez, Maria Felicitas Garcia and Juan Jesus Guerra in the amount of $88,672.00.

Respondent shall pay the restitution by certified or cashier’s check or money order made payable to Jose Rodriguez, Maria Felicitas Garcia and Juan Jesus Guerra and delivered to the State Bar of Texas, Chief Disciplinary Counsel’s Office, P.O. Box 12487, Austin, TX 78711-2487 (1414 Colorado St., Austin, TX 78701).

It is further ORDERED Respondent shall pay all reasonable and necessary attorney’s fees and direct expenses, on or before August 1, 2020, to the State Bar of Texas in the amount of $800.00. The payment shall be made by certified or cashier’s check or money order, made payable to the State Bar of Texas and delivered to the State Bar of Texas, Chief Disciplinary Counsel’s Office, P.O. Box 12487, Austin, TX 78711-2487 (1414 Colorado St., Austin, TX 78701).

It is further ORDERED that all amounts ordered herein are due to the misconduct of Respondent, are assessed as a part of the sanction in accordance with Rule 1.06(FF)of the Texas Rules of Disciplinary Procedure. Any amount 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 collect all unpaid amounts.

Agreed Judgment of Partially Probated Suspension

It is further ORDERED that Respondent shall remain actively suspended from the practice of law until such time as Respondent has completely paid attorney fees and direct expenses in the amount of $800.00 to the State Bar of Texas and restitution in the amount of $88,672.00 to Jose Rodriguez, Maria Felicitas Garcia and Juan Jesus Guerra.

Publication

This suspension shall be made a matter of public record and appropriately published in accordance with the Texas Rules of Disciplinary Procedure.

Other Relief

All requested relief not expressly granted herein is expressly DENIED.