2009 Houston Bar AssociationCivil District/Appellate Bench Bar

Conference

By Scott Rothenberg (scott@texascivilappeals.com)

Ethics Jeopardy – Where the only thing in jeopardy is your law license. And your reputation. And your

career. And, well, you get the picture.

• April 25, 2009• San Luis Resort and Conference Center

• Galveston, Texas

Truth in Advertising Notice

• My name is Ben Rothenberg. I am 17 years old. My dad is your presenter. He will probably give you some song and dance about “coming into the 21st Century” by using a PowerPoint presentation rather than those cheesy overhead transparencies. Don’t be fooled. *I* prepared the PowerPoint slides, not him.

Question No. 1 (10 points)Stealing from Clients

According to the Texas Disciplinary Rules of Professional Conduct, it is permissible for an attorney to steal from his or her client:

a. always;

b. never;

c. only with informed consent;

d. depends upon the client.

Question No. 2 (50 points)Compulsory Discipline

• Attorney accepts deferred adjudication for shoplifting a $0.75 pack of gum. According to the Supreme Court of Texas, when an attorney successfully obtains DEFERRED ADJUDICATION for a misdemeanor theft conviction, the punishment imposed by the Board of Disciplinary Appeals (BODA) is:

• A. Fully probated suspension for the duration of the probation only;

• B. Active suspension for the duration of the probation;

• C. Active suspension for the duration of the probation or disbarment at the discretion of BODA;

• D. Mandatory disbarment only.

Case Authority

In re: Roland Caballero, 272 S.W.3d 595 (Tex. 2008)

7-2 decision

December 19, 2008

Applies to any conviction for a “Serious Crime”

“Serious crime” includes misdemeanor theft.

Question No. 3 (30 points)Which controls, TRDP or TRCP?

Grievance is being prosecuted in state district court for conduct that occurred more than four years before the grievance was filed. Attorney is entitled to a mandatory 4-year limitation on prosecution under TRDP 15.06. On judgment for disbarment, CLD contends that attorney waived 4-year limitation by failing to plead it.

A. Reverse; TRDP controls procedures in grievance cases.

B. Reverse because TRDP provision is mandatory.

C. Affirm because TRCP controls procedure in trial court except where varied by the TRDP.

D. Affirm only if CLD fails to show surprise or prejudice.

Case Authority

• Beard v. Commission for Lawyer Discipline,

• 05-07-00428-CV (Tex. App.– Dallas March 17, 2009, no petition history).

Question No. 4 (30 points)Attorney Disqualification

TDRPC 1.09 states that “without prior consent, a lawyer who personally has formally represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client. . . .” John Jones seeks legal advice from Attorney to evaluate for representation in a divorce case but does not hire him. Jane Jones subsequently hires Attorney. Upon the filing of a timely motion to disqualify Attorney from representing Jane Jones:

A. Attorney should be disqualified because John Jones was “a client.”

B. Attorney should not be disqualified because John Jones never became “a client.”

C. Attorney should not be disqualified because he did not “formally represent” John Jones.

D. Attorney should not be disqualified if John Jones interviewed him with the specific intent of disqualifying Attorney from representing Jane Jones.

Case Authority

• In the Interest of Z.N.H.,

• No. 11-07-00232-CV (Tex. App.– Eastland

• February 26, 2009, no pet. history).

Question No. 5 (40 points)TRDP Time Deadlines

TRDP 3.07 states: "Disciplinary Actions shall be set for trial not later than 180 days after the date the answer is filed, except for good cause shown.” Grievance trial is set 243 days after answer is filed. CLD makes no showing of “good cause shown.” The grievance conviction should be:

• A. Reversed unless CLD met its burden to show “good cause shown.”

• B. Affirmed unless Attorney affirmatively negated any showing of “good cause shown.”

• C. Affirmed because TRDP 3.07 is advisory and not mandatory.

• D. Affirmed because TRDP time deadlines are trumped by TRCP deadlines for trial.

Case Authority

• Hudson v. Commission for Lawyer Discipline,

• No. 05-07-00775-CV (Tex. App.– Dallas February 2, 2009, no pet. history).

Question No. 6 (20 points)Fee Sharing Agreements and Disbarred Lawyers

• Lawyer A enters into a legal fee sharing agreement with Lawyer O’Q, agreeing to accept joint responsibility for handling the file. 85% of the way through the handling of the lawsuit, Lawyer A is disbarred. Case is settled. Lawyer A sues Lawyer O’Q for his share of the fees.

• A. Lawyer A recovers nothing. FSA is void as against public policy under circumstances presented.

• B. Lawyer A recovers 85% of the fees owed under the FSA. Quantum meruit.

• C. Lawyer A recovers 100% of the fees owed under the FSA. Enforceable contract.

• D. Lawyer A recovers 85% of the fees owed under the FSA but only with fully informed consent of the client with full knowledge of Lawyer A’s disbarment.

Case Authority

• Cruse v. O’Quinn,

• 273 S.W.3d 766 (Tex. App.– Houston [14th Dist.] November 25, 2008, pet. filed).

Question No. 7 (40 points)Fee Sharing Agreements, Part Deux

• Attorney 1 hires Attorney 2 to help him prosecute Client’s lawsuit. FSA gives Attorney 2 10% of the total recovery for her assistance. Client fires Attorney 2 with just cause toward the end of the representation. In lawsuit to recover 10% fee interest:

• A. Attorney 2 receives nothing because client’s firing was done “with just cause.”

• B. Attorney 2 receives full 10% fee because client’s firing was meaningless– Attorney 2’s contract was with Attorney 1, not Client.

• C. Attorney 2 receives nothing because all Fee Sharing Agreements violate public policy as a matter of law.

• D. Attorney 2 receives a “reasonable percentage” of the agreed fee under the theory of quantum meruit.

Case Authority

• Wilson v. Dovalina,

• No. 04-07-00610-CV (Tex. App.– San Antonio July 16, 2008, no pet.).

Question No. 8 (30 points)Aggregate Settlements

• In a mass tort case, counsel for hundreds of plaintiffs negotiates a total settlement pot worth $45 million and recommends settlement to individual clients based upon a matrix of factors individual to each case. Clients challenge the settlement as void against public policy because it is an aggregate settlement. The clients should:

• A. Lose because apportionment of the settlement was based upon factors individual to each case;

• B. Lose because aggregate settlements are always an effective dispute resolution tool;

• C. Win because the clients were not told that their individual case was settled as a share of an overall global settlement;

• D. Win because an agreement between a plaintiff’s attorney and defense counsel not to inform the client about the overall value of the total settlement constitutes a civil conspiracy.

Case Authority• Authorlee v. Tuboscope Vetco Int’l, Inc.,

• 274 S.W.3d 111 (Tex. App.– Houston [1st Dist.] August 28, 2008, pet. filed).

• Deeply divided panel – strong dissenting opinion. Full briefing on the merits and transmission of the record requested by the Supreme Court of Texas.

Question No. 9 (50 points) MandatoryArbitration of Legal Malpractice Claims

• Which of the following is NOT a factor to be considered when determining the enforceability of a binding arbitration clause in a representation agreement between an attorney and a client:

• A. Sophistication of the client;• B. Full disclosure by the attorney of the advantages

and disadvantages of arbitration versus litigation;• C. Whether the client was represented by

independent counsel at the time the representation agreement was executed;

• D. Information to the client regarding appellate rights.

Legal Authority

• Ethics Opinion 586, Issued October of 2008 by the Professional Ethics Committee of the State Bar of Texas

• But – legality of arbitration clauses (split).• Godt (Corpus Christi 2000) versus Taylor (14th 2005),

Miller (Amarillo 2003), and Hartigan (San Antonio 2003).

• Cost and time savings, waiver of significant rights (jury), reduced discovery, relaxed rules of evidence, loss or limitation of right of judicial appeal, privacy, method of selection of arbitrators, payment of arbitrators and relative cost.

Question No. 10 (20 points)Appellate Sanctions – Standard to Apply

• The correct standard to be applied by appellate courts in granting appellate (not mandamus) sanctions is:

• A. no reasonable grounds to believe that an appellate court would reverse the trial court's judgment, objectively considering the record from the viewpoint of an attorney representing the appellant.

• B. The appeal be both objectively frivolous and subjectively brought in bad faith or for purposes of delay.

• C. The appeal is either objectively frivolous or brought in bad faith.

• D. There is no one recognized standard for the imposition of appellate sanctions.

Case Authority

• Mallios v. Standard Insurance Co., 237 S.W.3d 778 (Tex. App.– Houston [14th Dist.] August 30 2007, pet. den.).

• In her dissenting opinion, Justice Kem Thompson Frost correctly notes: “The Supreme Court of Texas has not yet addressed the appropriate legal standard appellate courts should use to determine whether to assess appellate sanctions.”

Question No. 11 (40 points)Punishment for Knowing Misrepresentations

• An attorney knowingly making a false statement of fact in a pleading, motion or brief that is filed with the clerk of a court can result in which of the following:

A. The filing of a grievance;B. Probated suspension from the practice of law;C. Active suspension from the practice of law;D. Disbarment;E. Felony conviction;F. A through D only;G. All of the above.

Case Authority

• State of Texas v. Vasilas,

• 253 S.W.3d 268

• (Tex. Crim. App. May 7, 2008).

• TPC 37.10 Tampering with a Government Record.

Question No. 12 (30 points)Necessity of Expert Testimony in Grievance

• Attorney offers expert testimony that his conduct did not breach the disciplinary rule at issue. CLD fails to offer any rebuttal expert testimony and did not offer any expert testimony during its case in chief. A motion for directed verdict by the attorney should be:

• a. Granted if his expert testimony was clear, positive, direct and could have been readily controverted, but was not.

• b. Granted because expert testimony establishing a violation of the applicable disciplinary rule is an essential part of any disciplinary prosecution as a matter of law.

• c. Denied because expert testimony is not necessary to establish a violation of the disciplinary rule in question.

• d. Denied because an attorney facing disciplinary charges is not a competent witness in his own disciplinary trial.

Case Authority

• McIntyre v. Commission for Lawyer Discipline, 247 S.W.3d 434 (Tex. App.– Dallas March 6, 2008, pet. denied 4-17-09).

Question No. 13 (50 points)Recoverability of Appellate Atty’s Fees

• Lawyer represents Client, but loses at the jury verdict stage due to acts of legal malpractice. Client fires Lawyer and hires Second Lawyer to handle post-judgment and appeal, which end up adverse to Client. Client sues Lawyer for legal malpractice. In the legal malpractice lawsuit, may Client seek to recover from Lawyer attorney’s fees Client paid to Second Lawyer in an effort to mitigate damages caused by Lawyer’s legal malpractice?

• a. Yes.

• b. Yes in Dallas, but no in San Antonio.

• c. No in Dallas, but yes in San Antonio.

• d. No.

Case Authority

• Compare:

• Akin, Gump, Strauss, Hauer & Feld, L.L.P., v. National Dev. & Research Corp., 232 S.W.3d 883 (Tex. App.– Dallas August 29, 2007, pet. granted, argued 12-08) with:

• Parenti v. Moberg, No. 04-06-00497-CV (Tex. App.– San Antonio May 30, 2007, pet. denied 4-8-08).

Question No. 14 (30 points)Atty Fee Contract Language

• Attorney and Client both sign Representation Agreement with the following essential terms:

– You have requested that I assist with the writing of the Appellant's Brief and any reply. My rate for this particular matter will be $200.00 per hour. Paralegals are $75.00 per hour. You are responsible for all costs and expenses in the case as incurred.

• Client refuses to pay Attorney’s $30,000+ invoice. Attorney sues and files summary judgment seeking payment. Client responds that Attorney never told him he would have to pay over $30,000. Summary judgment granted for attorney.

Question No. 14 cont’d• On appeal:

– A. affirm because Client was responsible for inquiring how much the maximum fee might be;

– B. affirm because in the absence of a stated maximum, attorney’s fees contracts are open accounts to bill and collect for the stated number of hours of work times the stated rate;

– c. reverse because the language in question is ambiguous since it does not state that the contract is an “open account”;

– d. reverse because the contract must state a reasonable good faith estimate of total fees and expenses and this contract fails to do so.

Case Authority

• Sacks v. Haden, 266 S.W.3d 447 (Tex. September 26, 2008).

Question No. 15 (20 points)

• Lawyer represents Client in a contingent fee lawsuit in which Lawyer accepts a 1/3 attorney’s fee. Case results in a take-nothing judgment. Client sues Lawyer for legal malpractice claiming Lawyer should have recovered $3 million in damages. Lawyer contends Client is limited to recovering $2 million because Client would have had to pay Lawyer a 1/3 contingent fee:

• a. Client may only recover $2 million because Client would only have had a net recovery of $2 million in the underlying litigation;

• b. Client may recover $3 million from Lawyer’s insurer, but must pay Lawyer $1 million pursuant to the contingent fee contract;

• c. Client may recover the full $3 million, because Lawyer failed in the attempt to obtain a favorable result for the Client;

• d. Client may recover the full $3 million and also recover the Client’s attorney’s fees in the legal malpractice lawsuit.

Case Authority

• Akin, Gump, Strauss, Hauer & Feld, L.L.P., v. National Dev. & Research Corp., 232 S.W.3d 883 (Tex. App.– Dallas August 29, 2007, pet. granted, argued 12-08).

Question No. 16

• Client hires attorney to sue a Ferrari dealership for damages caused by a defective vehicle. The final judgment awards the client $900,000 in damages, but provides the dealership with a $300,000 offset for past due car payments that Client refused to make. Attorney’s fee contract states that attorney recovers “one-third of any amount received by settlement or recovery.” Attorney charges client a fee of $300,000. That fee should be:

• a. reduced to $200,000 because the client only “received” $600,000 “by settlement or recovery”;

• b. subject the attorney to possible discipline and fee forfeiture because the attorney charged an illegal or unconscionable fee;

• c. a. and b;

• d. paid because it accurately reflects the terms of the contract.

Case Authority

• Levine v. Bayne, Snell & Krause, Ltd., 40 S.W.3d 92, 95 (Tex. 2001).

Question No. 17 (10 points)Legal Malpractice Statute of Limitations

• Client files suit against attorney for legal malpractice two years and two months after the conclusion of all litigation and all appeals that are the subject of the representation. Which of the following is false:

• a. cause of action for legal malpractice should be dismissed because the statute of limitations is two years for legal malpractice;

• b. cause of action for legal malpractice may be considered under four year statute of limitations for breach of contract if the attorney and client have entered into a written contract;

• c. cause of action for legal malpractice should be dismissed, cause of action for breach of contract should be subject to dismissal on special exceptions, but a fraud claim arising out of the representation would be subject to a four year statute of limitations;

• d. a. and c.

Question No. 18 (30 points)Attorney-client confidentiality

• Client requests that the attorney turn over his/her written notes to the client. Which of the following is true?

• a. the attorney may withhold the notes or portions thereof when required by court order;

• b. the attorney may never withhold the notes from the client;

• c. the attorney may withhold the notes or portions thereof when failing to do so would risk causing serious harm to the client;

• d. a. and c.

• Ethics Opinion No. 570

Question No. 19 (40 points)Insurance Companies

• May a lawyer, who is retained by an insurance company to defend its insured, ethically comply with litigation/billing guidelines which place certain restrictions on how the lawyer should conduct the defense of the insured?

• a. yes, because the insurance company is paying for the representation;

• b. yes, with prior informed consent of the client (the insured);

• c. no;

• d. yes, because the standard insurance policy gives the insurance company the right to control the manner of the defense.

• Ethics Opinion 533•

Question No. 20 (100 points) Non-Refundable Retainers

• In Texas, a non-refundable retainer:

– a. falls in the same category as Santa Claus, the Easter Bunny, and snowy days in August in Houston, Texas– there is no such thing;

– b. can be accepted from a client and is fully earned when received, provided it is expressly intended to remunerate the attorney for the loss of the opportunity to accept other employment that will probably be lost;

– c. can be used as a prepayment for professional legal services rendered by an attorney;

– d. is fully earned a the moment it is received if accepted by the attorney as a prepayment for professional legal services rendered by the attorney.

Case Authority

• Cluck v. Commission for Lawyer Discipline, 214 S.W.2d 736 (Tex. App.– Austin 2007, no. pet.).

Answer Key

1(b) 2(c) 3(c) 4(a) 5(c)

6(a) 7(b) 8(a) 9(c)10(d)

11(g) 12(c) 13(c) 14(b) 15(c)

16(c) 17(d) 18(b) 19(c) 20(d)