At trial, however, it is the judge who decides the appropriate sanction and, in this case, despite not being requested by the State Bar, the judge presiding over the trial, ordered that Mr. Bennett be disbarred.
The details in my post came from a story in Texas Lawyer and from Mr. Bennett's Avvo listing and website. To be fair, after the judge disbarred him, Mr. Bennett contact Avvo and requested that any reference to him being a licensed attorney be removed.
I received an e-mail from Mr. Bennett over the weekend that presents his side of the dispute. In order to prevent anything from being "lost in the translation," here is Mr. Bennett's 17-point refutation of the charges brought against him and the finding of the court.
Mr. Bennett has filed a motion for new trial he hopes to have heard before May 15.
- In forty years of practicing law I have never received a public or private reprimand;
- The OCDC Attorney Tim Bersch did not call a single Testimonial witness in either the trial phase or Sanctions phase of the case;
- The Only evidence the OCDC presented was the original contract that required the client to have a third party attorney approve and advise regarding the engagement along with motions and documents pertaining to District Court Hearing and appeal to the court of Appeals;
- The Court refused to allow my experts to testify about why there were no rule violations committed;
- Please review the letters attached to our MNT from Lillian Hardwick, the co-author of the Handbook of Texas Lawyer and Judicial Ethics and former Chairman of the Bar Ethics Committee; Dan Naranjo, former United States Magistrate and former member of the Commission for Lawyer Discipline ( the Plaintiff in the lawsuit), and Board Certified Attorney Don Karotkin, who served as a Chairman of a Grievance Committee in Houston, and Anthony Griffin who is one of the leading civil rights attorneys in the state and has been the subject of bar matters;
- The letters show that the Bar has presented experts in their cases previously and with the Court stating it had never tried a disbarment case previously, we certainly thought it would be helpful for the Court to hear from ethics experts;
- No one on the Arbitration panel, at the district court , or on the appellate court considered that I had violated any rules in handling the case ( in fact the Court of Appeals found my brief to be reasonable);
- I would also call your attention to the Court of Appeals decision that found that it disagreed with our view of the Arbitration but found that the appeal was reasonable. The complainant did seek sanctions against me before the Court of Appeals but that was denied because the appeal was a reasonable appeal;
- We have not received the transcript from the Trial, but Mr. Bersch stated that no Rule violations occurred with the writing of the Contract, the handling of the case, the arbitration, the objections and hearing in the district court. It was only after I believed the Arbitration Panel had exceed its authority and other issues required the arbitration to be vacated that I committed misconduct when I gave notice to appeal instead of paying the money to Mr. Land. In other words, when I decided in August of 20 2012 to appeal to the Court of appeals, I had not right to do that and that violated 3.02. I had no right to challenge the district court decision.
- Although a supersedes bond was posted, protecting the client if I should lose the appeal, Mr. Bersch citing no case authority and with no expert presented, decided that the appeal was a violation of Disciplinary Rule 3.02. If you will read the rule, the first comment makes reference to what the Attorney who is representing the client does. You can’t grieve a client, so the rule is aimed at the attorney who is representing a client and engages in delay. Comment 2 states that the attorney who complies with Rules 3.01,and 3.02, and 3.03 complies with 3.02. The Bar made no allegation that I had violated any other rules. Additionally, if you will read the letters attached to the MNT, you will see that Ms. Hardwick, and experts Judge Naranjo, Don Kartokin and Anthony Griffin all agreed that I did not violate Rule 3.02.
- The other violation involved the failure to return an unearned fee at the time of the termination. The Rule states: “Upon Termination of representation”. At the time Mr. Land and I parted ways, the fee he had paid had been used and he was in arrears on his account. All of this was documented and he was billed monthly. So when I was “ terminated” in June of 2011, there was no unearned fee, there was a fee dispute that took us to arbitration and a year later a decision by the District Court. No case has ever been found, no expert has ever opinioned that you can have a “ relation-back” theory of termination. That is why all my experts said that there was no violation of Rule 1.15(d).
- Moving on to the Sanctions part of the case. Again, Mr. Bersch did not offer a single witness on any of the items contained in Rule 3.10 – Disciplinary Procedure Rules. He did not call the complainant, the complaint’s attorney, nor did he call himself to prove up attorneys’ fees – very unusual, unless you don’t want to be cross examined. ( as an aside, the billing statement that Mr. Bersch wanted to be admitted into evidence did not contain any time for meeting with or talking to any fact or expert witness).
- Under the Terms of the Contract with the Complainant Land, the governing rules required adherence to the Rules of the HBA FDRC. Under the FDR ( Rule 8.02 (a)), any “decision may be reviewed by petition to a court having jurisdiction in accordance with the provisions of the Texas Arbitration Act.” (“TAA”). The decision from the Arbitration Panel is governed by the Rule of the Houston Bar Fee Dispute Resolution Committee subject to the TTA. Under the TTA, regarding the right of appeal, the TTA states: under Texas Civil Practice & Remedies Code Section 171.098 - Appeal : a party may appeal and “ The appeal shall be taken in the manner and to the same extent as an appeal from an order or judgment in a civil action.” Thus, if I had a right to appeal, there could be no violation of DR 3.02. What about the right of any litigant to appeal?
- We placed on the stand 8 witnesses who showed there was no basis for a disbarment. Those included;
- Ethics Expert Lilliana Hardwick: 512-xxx-xxxx;
- Judge Dan Naranjo: 210-xxx-xxxx;
- Attorney Don Karotkin: 713-xxx-xxxx
- Attorney Anthony Griffin: 713-xxx-xxxx;
- Client Anthony Graves: 713-xxx-xxxx;
- Attorney and Client Peyman Momeni: 713-xxx-xxxx;
- Attorney Jeff Wagnon: 979-xxx-xxxx.
- Attorney Jorge Lopez: 281-xxx-xxxx
- It was also interesting that none of the 9 witnesses (I also testified) were crossed examined or impeached in any way. Mr. Bersch passed on the opportunity to ask any questions of any of the defense witnesses or experts. Any of my witnesses would welcome a call if you would like to know more about the case.
- After we exhausted our appellate remedies, we did not oppose Mr. Land getting paid, and it is my understanding that he had been paid.
- The Bar was asked by the Court what its recommendation was and it was the same recommendation at the Sanctions phase as it was prior to the trial: One year probated up to two year probated with a three month active suspension. The Court asked Mr. Bersch about a disbarment and he stated that he was not authorized to request that. Again, when we get the transcript, you can verify that.
In an e-mail to me, Mr. Bennett raised some very good points regarding the State Bar's Office of Chief Disciplinary Counsel. I do agree with him that something seems to be out of whack when an attorney with no disciplinary blemish on his record after 38 years of practice is disbarred over one fee dispute. It is also troubling that a judge would order disbarment when that particular remedy was never asked for by the State Bar.