The Desegregation of the Courthouse Cafeteria How a Houston Judge Saved the Alamo Responding to Disciplinary Actions Can the Undocumented Workerâ€™s Alien Status be Introduced at Trial? Ethical Witness Preparation An Interview with the New HBA President
Volume 48 â€“ Number 1
T. Mark Kelly 2010-2011 President Houston Bar Association
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contents Volume 48 Number 1
FEATURES 5¢, Cheeseburgers 25¢, 10 Coffee Human Dignity... Priceless.
The Desegregation of the Harris County Courthouse Cafeteria By Judge Mark Davidson
Ladies Who Brawl: 18 The How a Houston Judge Saved the Alamo
By Ann D. Zeigler
I Grow Up, I Want to 22 When be a Lawyer...
Not a Respondent in a Disciplinary Action By Jennifer A. Hasley
the Undocumented Worker’s 28 Can Alien Status be Introduced at Trial? By Benny Agosto, Jr., Professor Lupe Salinas and Eloisa Morales Arteaga
Witness Preparation: 34 Ethical Stepping Back from the Line for the Lecture
By Stan Perry and Teshia N. Judkins
Focus on Family and 38 AHelping Youth Takes Office as 42 Kelly HBA President
The Houston Lawyer
43 50-Year Lawyers Awards and 44 President’s Special Recognition
The Houston Lawyer (ISSN 0439-660X) is published bimonthly by The Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002-6715. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1300 First City Tower, 1001 Fannin, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehouston lawyer.com, e-mail: firstname.lastname@example.org Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. For article REPRINTS, please contact Wright’s Reprints: 1-877-652-5295. ©The Houston Bar Association, 2010. All rights reserved.
contents Volume 48 Number 1
departments Message 6 Presidentâ€™s By T. Mark Kelly the Editor 8 From By John S. Gray Reviews 46 Media Westlaw Practitioner Reviewed by Al Harrison
Asset Forfeiture Law in the United States Practitionert Reviewed by Don Rogers
Trends 47 Legal U.S. Supreme Court Rules
Noncitizens with Two or More Misdemeanor Possession Convictions are not Automatic Aggravated Felons By Joy Sanders
the Record 49 OffWinning Wine Advocate: Vianei
Lopez Robinson By Julie Barry
Profile in Professionalism: 50 ARobin C. Gibbs
Partner, Gibbs & Bruns LLP
The Houston Lawyer
51 Placement Service 52 Litigation MarketPlace
By T. Mark Kelly Vinson & Elkins LLP
Protecting Our Children, Our Future
The Houston Lawyer
ne of the challenges and privileges of being the president of the Houston Bar Association is to identify projects on which you want to focus during your Bar year. I recently was reminded of the great need in our community for volunteers to help those less fortunate when I had the pleasure of accomplishing what I call a “trifecta.” One Saturday morning I drove to Mason Park to assist in the cleaning of the park as part of the HBA’s Trash Bash. Shortly before noon, I drove to the Habitat House we were building for a single mom whose dream was to finally own her own home. I then finished the day by participating in the “Aids and the Law” seminar at the Montrose Counseling Center, where our volunteers were teaching a course on the legal rights of people with HIV and Aids. I am proud, as you should be, of the large number of HBA members who volunteer their time to serve. I have always been interested in exploring what we can do to reach out to children– who are our future–and especially at-risk children. The HBA has developed many fine programs over the years, including Adopt-A-School, Constitution Day Readings, and Children’s Clothing and Diaper Drives, to name just a few. This year, I read some startling statistics regarding children who have been in foster care programs. In a study conducted by Chapin Hall at the University of Chicago, they found: • Foster children are much more likely to be unemployed; • Almost 25 percent live on the street or in shelters; • More than 75 percent of young women have been pregnant; 6
• Nearly 60 percent of young men have been convicted of a crime, and more than 80 percent have been arrested; and • Even more startling, only six percent had an associate or bachelor’s degree. Nationwide, 513,000 young people live in foster care. The State of Texas ranks fourth highest, with 28,883 youth currently in foster care. In Houston alone, that number is 6,613 youth. Youths exiting the foster care system are twice as likely to drop out of high school and are at great risk of arrest and incarceration. The social and economic costs are too extreme to ignore. There is an organization in Houston called the Houston Alumni and Youth (or HAY) Center that is a one-stop center where foster youth and alumni (ages 16-25) can acquire a variety of transition resources, support and services. One of their programs – the PAL (Preparation for Adult Living) Program – was implemented in 1986. All told, almost 2,000 youths are either enrolled in the PAL Program or involved with the HAY Center. Children who meet the various requirements of the PAL Program are eligible for a waiver of their tuition at in-state schools if they can gain admission. Last year, the significant funding source of the HAY Center had a financial setback and had to decrease funding. As you might expect, a number of these youth that show up at the HAY Center have juvenile records that likely make it difficult to obtain jobs. This year, we have created a committee to assist this organization to train volunteer attorneys to help with expunging and sealing records, conducting training classes on legal topics for HAY Center staff, holding presentations on legal topics to educate youth on their rights
and responsibilities, and creating a “ready room” stocked with supplies and clothing to help them in their first independent living arrangements. We, and the staff at the HAY Center, are excited about the program and how we can hopefully be a positive influence on these youth. We live in a society that spends hours on the Internet. Unlike when I started the practice of law with mag cards and no cell phones, our kids have personal computers, Blackberries, iPhones and drones. Their ability to communicate to each other in real time is unparalleled. What some of us may not know, and what our children clearly may not appreciate, is the legal risk they may run in inappropriate use of such devices. This year the HBA will partner with the Houston Young Lawyers Association to distribute copies of a wonderful DVD, “R U Safe? Protecting Yourself in Cyberspace,” developed by the Texas Young Lawyers Association. The DVD provides information on topics such as cyberbullying, “sexting,” and Internet predators in four different videos that target elementary, middle and high school students, as well as parents. The HBA’s goal is to distribute the DVD to all schools in the 26 school districts that comprise Harris County, as well as private schools. Schools will be encouraged to contact the HBA or HYLA to schedule a volunteer attorney to speak on cyber safety to classrooms and parent groups, following their viewing of the video. In an effort to reach out to the law schools, the HBA will create a Web page called Law Student Center that includes information on HBA programs specifically for law students, continuing education programs open to law students, scholarships
available through HBA sections, volunteer opportunities, programs for newly licensed attorneys, photos and helpful links to additional resources. The HBA worked with the career services directors at all three Houston law schools to determine content, so the site meets the needs of students during law school and as they transition into practice. This bar year marks the beginning of the fifth year of our Equal Access Champions Initiative for the HBA’s Houston Volunteer Lawyers Program. Through this program initiated by Glenn Ballard, HVLP has increased the number of cases handled from 991 in 2005 to 2,280 in 2009, with 2010 projected to top 2,400. Law firms and corporate legal departments sign a commitment to handle a certain number of cases for HVLP each year, based on the number of attorneys in the firm or legal department. We have 104 law firms and corporations of all sizes, as well as individuals, who have stepped up to meet this commitment. This year we will urge our current champions to re-commit to this crucial program, as well as work to recruit new firms and corporations to step up to the challenge. During Travis Sales’ year, he focused on expanding our legal services provided to veterans. This year, this amazingly successful program that has received national attention is one of the featured initiatives of the State Bar. We will continue to expand our efforts locally and have agreed to partner with the State Bar to help educate and facilitate services provided to various counties across the State. Winston Churchill said, “We make a living by what we get, but we make a life by what we give.” My predecessors in this position have done an incredible amount of good work advancing the interests of our community through the work of the HBA. I hope to continue that legacy. I encourage you to get involved in one or more of the HBA’s 37 committees and one task force, and to give something back to the community in which we live. You won’t regret it! Thank you for allowing me the opportunity to serve as your president. I look forward to a busy and exciting year.
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from the editor
By John S. Gray Gardere Wynne Sewell LLP
Keri Brown Baker Botts L.L.P.
Catherine Le Law Firm of Catherine Le
Robert W. Painter The Painter Law Firm
The Houston Lawyer
Don Rogers Harris County District Attorney’s Office
Tamara Stiner Toomer Attorney at Law
Is History Repeating Itself?
very summer begins with the Houston Bar Association welcoming a new president and with him or her a new cast of energetic and dynamic committee members and section chairs heading up the HBA’s 37 committees and 29 legal sections that serve Houston’s legal community. This summer is no exception as The Houston Lawyer welcomes a new editorial board comprising many familiar faces and several new ones. This bar year, T. Mark Kelly is the HBA’s new president, and I have the honor of leading an excellent team of talented volunteers as they prepare six new issues for you. I hope they will provide you with articles to help improve your practice and inform you about the lawyers we work with and the communities in which we live. As has become the custom, most issues will have a topical theme. This year’s themes include corporate and taxation law, legal issues affecting our children, the legislature, the environment, and the traditional issue that salutes our volunteers. If you have an idea for an article that you believe Houston lawyers would like to read, or need to read, please let us know. Even better, if you would like to write an article for one of these issues, we would love to hear from you–just drop us an email at email@example.com. We welcome your articles, your comments and your insight. After all this is your magazine. Our first issue for this bar year is one of general interest. We are pleased to have a mix of substantive legal articles on a range of topics that every lawyer should find of interest, including avoiding disciplinary actions, improper witness coaching and evidentiary issues regarding undocumented persons. In addition to these three substantive legal articles, our first issue also proudly revisits a favorite topic with two articles – stories devoted to Houston’s legal history. Judge Mark Davidson again honors us with a riveting tale about Houston’s own Civil Rights movement when a group of courageous young lawyers took on Houston’s established government in the 1950s in an effort to desegregate the Harris County Courthouse cafeteria. THL’s own outgoing editor, Ann Ziegler, then regales us with the true story of those fine upstanding ladies of the Daughters of the Rethehoustonlawyer.com
public of Texas (the “Daughters”), whose 1907 dispute over the Alamo resulted in a brawl in the Senate Chamber in the Texas State Capitol and ended with a lawsuit over the Alamo’s future being filed in Houston. It is the Alamo article that led to the title of this column. At one time or another, we have heard Winston Churchill’s famous quote: “Those that fail to learn from history, are doomed to repeat it.” Well, it seems that the Daughters need to read Ann Zeigler’s article because they appear to be fighting over finances again. But this time, instead of brawling in the Senate Chamber and involving Houston judges in their disputes, they involved the Texas Attorney General’s Office and Governor Perry has weighed in on the issue. According to a recent Wall Street Journal article (this new brawl is making national headlines), the AG’s office got involved after a member of the Daughters of the Republic filed a 65-page letter complaining that the Alamo was not being kept in “good order and repair,” as required by the 1905 state law that charged the group with the Alamo’s upkeep. This latest dispute is allegedly about a leaky roof, but it is clear that competing groups are again fighting over who can best maintain the Alamo as it welcomes 8,000 visitors each day. As the Attorney General’s office is conducting its investigation into the Daughters’ financial, engineering and personnel files, the Governor’s office has been busy reviewing structural reports on the Alamo’s buildings. It is reassuring that both Governor Perry and Attorney General Abbot take concerns over the Alamo’s safety seriously and that the leaking roof appears to pose no immediate threat. The same cannot be said about the threat this latest schism among the Daughters’ membership may pose. This whole brouhaha began last year when an ousted Daughter started a competing group called the Friends of the Alamo. This new group is claiming that the Daughters are not equipped to run the Alamo and should be stripped of their custodianship. They are seeking to have the Daughters officially disbanded in lieu of hiring a business manager. I cannot tell you how this latest saga will end, but I do ask the question: Is history repeating itself? You be the judge.
BOARD OF DIRECTORS President
T. Mark Kelly
David A. Chaumette
Brent A. Benoit
First Vice President
M. Carter Crow
Barrett H. Reasoner
Second Vice President
Alistair B. Dawson Jennifer A. Hasley
Benny Agosto, Jr. Warren W. Harris
Hon. David O. Fraga Daniella D. Landers
DIRECTORS (2010-2012) Todd M. Frankfort John Spiller
editorial staff Editor in Chief
John S. Gray Associate Editors
Keri D. Brown Robert W. Painter Tamara Stiner Toomer
Catherine Le Don Rogers
Julie Barry Angela Dixon Dori Kornfeld Goldman Farrah Martinez Caroline C. Pace Joy E. Sanders Hannah Sibiski Mark R. Trachtenberg N. Jill Yaziji
Sharon D. Cammack Don D. Ford III Al Harrison Judy L. Ney Maidie Ryan Mark Schuck Lisa Brindle Talbot Gary A. Wiener
HBA office staff Membership and Technology Services Director
Kay Sim Administrative Assistant
Ashley G. Steininger Administrative Assistant
Ronald Riojas Membership Assistant
Karen D. Ramsey
Committees & Events Director
Committees & Events Assistant
Director of Education
Lucy Fisher Communications Director
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By Judge Mark Davidson
Coffee 5¢, Cheeseburgers 25¢, Human Dignity... Priceless. The Desegregation of the Harris County Courthouse Cafeteria The history of the civil rights movement is usually told in stories from places such as Topeka, Little Rock, Selma, and the Lincoln Memorial in Washington D.C. These were places where persons seeking human dignity and equal rights marched, protested and spoke in support of a concept that had been declared self-evident two centuries before—that all men are created equal. Few lawyers entering our courthouse complex today know that it also was the site of a battle in the struggle for civil rights. Today, the basement of the Harris County Juvenile Justice Center houses a few offices and a small sandwich shop. Visitors see no trace of the Courthouse Cafeteria, which operated from the building’s opening until 2003, or of the dramatic confrontations that took place there. At issue was whether all citizens of Harris County had a right to eat there. The dispute involved a four-year court battle, two physical confrontations and a group of courageous young lawyers who took on the government for the right to be treated as equals within the walls of a courthouse where they would spend a career seeking justice for their clients.
The “New” Criminal Building County Judge Bob Casey was a visionary public servant first elected to that office in 1950.1 Upon his swearing in, he took on the pressing need for a new criminal courts building. The “old” criminal courts building dated from the 1920s and contained only three courtrooms. Casey accurately predicted that the burgeoning growth of Harris County would prompt creation of additional courts. Before his election, Harris County voters had approved $6,000,000 worth of courthouse bonds to renovate the 1910 Courthouse and build a new Criminal Courts Building.2 Casey foresaw that the cafes surrounding the courthouse would give way to parking lots, and so early in the design process, the architect planned for a cafeteria in the basement of the building. When the building opened on July 6, 1953, the attorneys, courthouse employees, jurors and visitors were dazzled by the modern facilities in the building. For the first time, court proceedings could take place in air-conditioned comfort. Bathrooms and water fountains, which had been inadequate in the old building, were abundant. The courtrooms were spacious. The basement café was large, and its food was thought to be the equal of any dining establishment near the courthouse.3 W. F. “Dee” Derrington won the contract to operate the cafeteria. The terms of the lease were simple: Derrington was to pay the county five hundred dollars a month, plus twenty percent of the annual gross income. In the first year of operations, Derrington apparently grossed fourteen thousand dollars. There was one additional understanding with the county not set out explicitly in the lease –the cafeteria was not to serve AfricanAmericans. A Man of Character Matthew Wesley Plummer was a native of San Antonio whose father was born
into slavery. During World War II, he was a flight instructor at the Tuskegee Army Airfield. He trained the “ Tu s k e g e e Airmen” of the 99th Fighter Squadron, a group of pilots that gave lie to the segregationist myth that African-Americans lacked the ability to serve their country. After the war, Plummer finished his college degree at Tuskegee Institute and then graduated in the first class of the law school at the Texas College for Negro Students in 1952.4 According to anyone and everyone who ever knew him, he was a gentleman first, last and always. While waiting for his bar examination grades, Plummer accepted a position as an investigator for the Harris County District Attorney’s Office. He was the first African-American employee in the history of that office. A Lunchtime at the Courthouse On August 27, 1953, several weeks after the new courthouse opened, Plummer and three friends–George Nelson, Jim Roberts and Lillie Alonzo–went to the basement of the building and entered the cafeteria. Their wishes were simple: They wanted to eat lunch. No one had told them it was a “Whites only” business, and there was no sign to that effect on the door.5 They were allowed into the line and ordered lunch. When they reached the cashier Derrington, the owner/manager, approached them, and “forcibly removed their food from their trays, and informed said plaintiffs that...the restaurant did not, and would not serve colored people.”6 Following the mantra of Mahatma Gandhi, and the later teachings of Martin Luther King, Jr., Plummer and his guests peaceably left.
It is clear that Plummer immediately went to see some of his classmates who had already passed the bar. The next day, a lawsuit was filed in the Southern District of Texas seeking desegregation of the cafeteria. The petition shows the attorneys on the case were Henry Doyle and Francis Williams, great lawyers who would become legends of the bar as well as renowned judges. Along with Plummer, they were founders of the Houston Lawyers Association,7 which promoted professional and social interaction among African-American lawyers at a time when they were excluded from other bar organizations.8 Proceedings in Federal Court—Pleadings and Trial The lawsuit was filed against County Judge Casey, in his official capacity as the presiding officer over the Harris County Commissioners9 Court, and each of the commissioners. Derrington was also named as a party. The gravamen of the complaint was that the cafeteria was on public property in a building that had been built with tax dollars and that exclusion of a class of people on the grounds of race was in violation of federal constitutional and statutory p ro v i s i o n s . It is worth noting that the suit was filed the year before the United States Supreme Court announced its decision in Brown v. Topeka Board of Education.10 This is significant because the insidious “separate but equal” doctrine of Plessy v. Ferguson11 was
still viable when the suit began.12 Had the Plaintiffs sought a temporary injunction, or even an expedited trial, the applicable law might have been different. The case was assigned to the docket of Judge Ben Connally. In 1953, Judge Connally had served as a judge for four years. He came to the bench after an active career as an attorney. Judge Connally started his law career as an attorney at Sewell, Morris, Taylor and Garwood, becoming a name partner in the firm.13 After service in the U. S. Army Air Corps during the war, he resumed his practice as a partner at Butler, Binion, Cook and Knapp until becoming a judge. Judge Connally’s political and legal pedigree would lead one to conclude that he was a conservative, business-oriented judge. The Plaintiffs might have wished they had drawn another judge, although there were some judges who would have been perceived as more conservative. Judge Connally’s docket sheet indicates that no discovery, motion practice or other judicial activity took place thehoustonlawyer.com
between the time the case was filed in August 1953 and a pretrial conference he convened on May 17, 1955. No one present at that pretrial conference is alive today, but the judge’s docket sheet shows Judge Connally’s effective judicial presence. His notes reflect that: Parties to stipulate on all facts save as to whether County is responsible for operation of cafeteria (as Pf’s contend) or whether, under terms of lease, only lessee is responsible. Stipulation to be forthcoming by 5/23/55. On August 8, 1955, the case was tried
on those stipulations. Neither the records of the trial court nor of the Fifth Circuit reflect the filing of a statement of facts or other trial transcripts, so it is possible Judge Connally heard no evidence other than the stipulations. Whether he did or not, the issue of law before him was clear: May a governmental entity lease public property to someone who uses that facility to discriminate on the basis of race? By our standards today, this seems elementary. But at that time, it was seen as legal for private businesses to exclude any potential customer they wished. That did not change until the United States Congress used the Interstate Commerce 12
Clause to mandate the end to “private” discrimination in the Civil Rights Act of 1964.14 The Ruling On December 29, 1955, Judge Connally issued his ruling.15 It began with a recitation of the stipulated facts and initially gave no indication of the outcome of the case. He made it clear that the county leased the premises to Derrington, and thereafter claimed no right of control of the premises. The essence of the findings is contained in the following paragraph: The cafeteria is patronized principally by Courthouse employees, jurors, and others having business in the building. It has always been open to the general public as an eating place. On August 27, 1953, the plaintiffs undertook to purchase food in the cafeteria and were not permitted to do so by the lessee and manager, the Defendant Derrington. His action in this respect was due solely to the fact that the plaintiffs were members of the colored race. With limited and insignificant exceptions, Derrington has operated the cafeteria since the inception of his lease for patronage only by members of the white race. He expects to continue to do so unless and until restrained by Court action.16 Judge Connally then noted the recent cases that required public facilities to be available to all and concluded “(t)here can be little doubt but that plaintiffs are entitled to relief against Harris County.” Protecting his appellate record in the event a reviewing court could find any viability in Plessy v. Ferguson, Judge Connally wrote: “Having undertaken to furnish eating facilities to its citizens, the County, so far
as it is able, must afford comparable and substantially equal treatment to all, without regard to color. The County has not established, nor is there maintained, any comparable eating facility in the Courthouse available to Negroes.” Brushing aside Derrington’s argument that he was a private vendor, Judge Connally concluded that “(t)he operation of the cafeteria here is too close, in origin and purpose, to the functions of the County government to allow the concessionaire the right to refuse service without good cause.” Accordingly, the opinion said that an injunction would issue against Derrington and the Harris County defendants. Judge Connally’s ruling was met with a plethora of post-trial motions. Motions for new trial (by the Defendants) and for monetary damages (by the Plaintiffs) were denied. The Defendants gave notice of appeal a month before the final judgment was signed, and it is possible the appeal that would follow was without legal effect. In hindsight, the Plaintiffs would eventually be glad they did not raise any procedural defense. Mob Rule at the Courthouse The Plaintiffs understandably thought they had won a great legal victory. A group of young lawyers had taken on the government of the largest county in Texas and won before a judge who was thought to be conservative. Now they assumed they could enjoy the fruits of four years’ labor. According to an interview with Matthew Plummer, “We were counting the days after the denial of the rehearing to go in and have a cup of coffee.” They even took the precaution of going back to Judge Connally to get a new order compelling their right to enter effective immediately. They quickly learned that the forces of hate had not yet played their last card. On April 10, 1956, Matthew Plummer again entered the cafeteria, along with the original plaintiffs and his attorneys. They were met by a number of segregationists, led by a man identified in the next
day’s Houston Chronicle as J. M. Wren. As Plummer entered, Wren shouted out: “We don’t want them in the cafeteria. If we’ve got to have a riot, let’s have it. I’m not going to have Negroes here.” He then reportedly aimed several punches at Plummer, apparently making contact at least once. Plummer did not fight back. He simply proceeded to the Justice of the Peace Court on the third floor and filed assault charges against Wren.17 Even though he had been a party to litigation for four years, Derrington chose to close the cafeteria rather than serve the Plaintiffs. He was quoted as saying he would close the cafeteria to everyone rather than serve Negroes.18 Henry Doyle asked Derrington, “Would you have served Negroes if there had been no disturbance?” Derrington’s reply: “No. I’m closing to everyone.” Doyle responded, “We anticipated this! The petition has already been prepared.” The petition charged Derrington with contempt of court. Facing motions for contempt brought against Derrington by
the Plaintiffs as well as additional motions to reconsider his rulings, Judge Connally stayed enforcement of his order pending appeal to the Fifth Circuit, upon the posting of a $500.00 supercedeas bond. The Appeal All Defendants appealed to the Fifth Circuit Court of Appeals. The case was assigned to a panel of Chief Judge Joseph Chappell Hutcheson of Houston, Judge Richard Rives of Alabama, and Judge Elbert Tuttle of Georgia. Justices Rives and Tuttle were later known as two members of the “Fifth Circuit Four,” a group of judges who made progressive rulings on civil rights throughout their tenure.19 The Fifth Circuit quickly took up the case and issued an opinion on December 29, 1956, only seven months after Judge Connally signed the final judgment.20 Writing for the Court, Judge Rives praised Connally, calling his opinion “thoughtfully considered.” Reiterating the legal point analyzed by the trial court, the Fifth Circuit wrote:
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“[T]he decisive question is whether the action of the lessee, Derrington, is merely private conduct or may fairly be said to be conduct of the County and thus State action within the inhibition of the Fourteenth Amendment.” Since all agreed that if the county ran the cafeteria, it could not discriminate, the justices wrote that “in rendering such service, the lessee stands in the place of the county.” The Plaintiffs had won again. Derrington was unbowed. He told a reporter for the Houston Post, “I’m going to appeal it to the Supreme Court and the United Nations.” All four county commissioners backed Derrington. One said integration of the cafeteria would cause it to “cease to be of any benefit to employees or the public.” Another said, “The only Negroes who would use the cafeteria would be those interested in winning the argument.” Only Judge Casey appeared reluctant to carry on the fight. He opposed renewing Derrington’s lease during any further appeal.21 Nonetheless, an appeal was taken to the United States Supreme Court, perhaps only to delay enforcement of the order. The appeal was short lived. The high court denied the application for a writ of certiorari on April 1, 1957. “The Private Club” Derrington, having lost in every court in the land, did not give up. Rather than serve the Plaintiffs, he announced on April 1, 1957 that he was closing the restaurant. That same day, he went to commissioners court and got permission to amend his lease, converting the cafeteria into “a private club.” Membership was limited to county employees and their guests. The Harris County Employees’ Credit Union agreed to issue its members cards that would allow a person to enter and bring guests. According to a later article in the Houston Chronicle, the effect was that the cafeteria remained segregated. Although there were African-American employees working for Harris County in the late 1950s, none ever attempted to enter. According to a prominent assistant county attorney
at the time, “It was well known among the Black employees that they could go in and eat there, but they would have been fired before the day was over if they had.” Meantime, the rule that admission was
limited to cardholders was honored (for White patrons) more in breach than in observance. The Fight Shifts to Commissioners Court Derrington’s lease came up for renewal by the Harris County Commissioners Court every two years. After his original lease in 1953, there was never a competitive bid for the right to run the business. Starting in 1959, a motion was made every two years to amend the lease to require integration. Derrington apparently warned individual commissioners that he would refuse to operate the cafeteria before he would desegregate. His public position was that he would lose money if required
to serve all, because many whites would refuse to patronize the cafe. In the 1959 renewal, only newly elected County Judge Bill Elliott supported service for all, and his motion died for lack of a second. In 1961, Commissioner V. V. “Red” Ramsey joined Elliott. It is unclear the extent to which the fights over lease renewals were because of the absence of a competitive bid process or a desire to require that all the citizens of the county could be served. It is clear that Derrington had three allies on the Commissioners Court who would vote to allow him to continue to operate the cafeteria as he wished. Preparing for another lease renewal in 1963, Derrington and the Commissioners Court were met with a renewal of the suit in August 1962. George Washington, an attorney with the firm Washington, King and King,22 filed a motion for further relief that included a request for contempt of court proceedings against all Defendants. By now, it was clear that the trend of the law was toward equal rights for all, and no one could mistake Judge Connally
as a judge who would fail to enforce those rights.23 On the day he was served with the contempt citation, Derrington announced that he was “tired of fighting” and that the cafeteria would be open to all, effective immediately.24 An alternative, and probably more realistic, explanation for the change of heart was given by former County Building Superintendent Mac McCain. In an oral interview he gave several years before his death, he said: “’Squatty’ Lyons25 went to the cafeteria in the basement of the Criminal Courts Building and Dee Derrington had the attitude he wasn’t going to serve. Squatty walked down there, and they were good buddies and all, but he walked down and told him, ‘Dee, I’m giving you an order. You better knock it off or we are going to kick you out of here. Because we are not going for that any more. You take everybody that comes in here.’”26 The next day, August 16, 1962, the cafeteria was open to all. The Plaintiffs had won their nine-year effort to eat lunch in a building whose very purpose was to
further justice for all. What Happened to Everyone? Matthew Plummer enjoyed a long and successful career as an attorney. Among the many cases he handled was Muhammad Ali’s draft evasion case in federal court during the Vietnam War. In 1986, Governor Mark White appointed him to serve as Judge of the 133rd District Court. Near the end of his life, he and other surviving Tuskegee Airmen received the Congressional Gold Medal in recognition of their service to our country. He died in October 2007. The attorneys who brought the suit for Plummer also went on to illustrious careers. Henry Doyle served as a municipal court judge for the City of Houston. In 1978, Governor Dolph Briscoe appointed him to the First Court of Appeals. He was elected to that position in 1980 and retired in 1982. Francis Williams became judge of County Criminal Court at Law Number Four in 1985. Among the cases he handled as an attorney was the Hous-
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ton Independent School District discrimination case before Judge Connally. Judge Ben Connally became a beloved and revered jurist in his 25 years on the bench. In 1962, he became the Chief Judge for the Southern District of Texas and continued in that position until he assumed senior status in December 1974. Sadly, he died less than a year later after suffering a heart attack during a hunting trip near Falfurrias, Texas. Dee Derrington’s claim that the cafeteria could not make money if all were treated with respect and dignity apparently turned out to be untrue. He continued to seek biennial renewals of his lease and ran the cafeteria at a profit until his death in 1966. After he died, his wife continued to operate the cafeteria until 1971. The cafeteria continued in operation until the building was renovated in 2003. In its later years, it became almost exclusively a place where the criminal defense bar hung out to tell stories of great trials they had, or might have, tried. Judge Jimmie Duncan was known to send his bailiff to the cafeteria looking for any lawyer foolish enough to be late for his docket call. Judge Duncan was well known for his desire to incarcerate tardy lawyers, regardless of their race, creed or color. In Europe, the buildings used to house the judiciary are called “Palaces of Justice.” This term dates back to a time and a system in which justice was something only the self-appointed lordly class could seek. In America, where our foundations are much more egalitarian, we call the buildings “Courthouses,” reflecting a belief that it is a place where anyone can seek justice. It is inconceivable that a building whose reason for being is fairness could have an area in which many of its citizens were not allowed to enter. It is up to today’s and tomorrow’s lawyers to make sure that our courthouses are always kept open to all to seek justice. Mark Davidson is a retired judge. He is currently assigned to hear all asbestos cases in the state as Multi-District Litigation Judge. In 2008, he was awarded the Robeson
L. King Excellence in Education award by the Houston Lawyers Association. Author’s Note The full story of the desegregation of the courthouse cafeteria would fill a book. Many details and characters were left out of this article. Many other facts cannot today be determined with any degree of accuracy. My goal in writing this article is not to condemn any individual, but to honor the nobility of those that fought for equal rights for all. Thanks are due to those who helped make this article possible. James Plummer gave me many insights into his father’s life and character. Judge David Hittner made it possible for me to have access to the court records from Plummer v. Casey. Elaina Butel and Gabriela Henriquez, law students at South Texas College of Law, found dozens of details in this article and assisted in its editing. Endnotes 1. Casey had previously served in the Texas House of Representatives from 1949-1950. After serving as County Judge for eight years, he was elected to the United States Congress, where he served until 1976. 2. An additional
bond issue of $1,500,000 would ultimately be necessary to complete the building. 3. The cafeteria was covered in sea green ceramic tile. While it may or may not have been appetizing, it made the mold on the food less noticeable. 4. The school is now Texas Southern University’s Thurgood Marshall School of Law. 5. I have vague memories of signs of this nature in Houston at a prominent retail store as late as the early 1960s. 6. Plaintiff’s Original Petition, Plummer, et al v. Casey et al; Civil Action 7662; In the Southern District of Texas. 7. The other founders of the Houston Lawyers Association were Robeson L. King, Weldon Berry, Robert Hainsworth and A. M. Wickliff. 8. The Houston Bar Association was integrated in 1965 because of the efforts of its President, W. James Kronzer, Jr. 9. The commissioners were Phillip E. Sayers, V. V. “Red” Ramsey, W. Kyle Chapman and E. A. “Squatty” Lyons. 10. Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954). 11. Plessy v. Ferguson, 163 U.S. 537 (1896). 12. Even if “separate but equal” were still viable, it might have been a stretch to use it as a defense, because the county did not build a “separate” cafeteria in the building or anywhere else. 13. The firm would eventually become Sewell, Junell and Riggs and then Sewell and Riggs before merging with Gardere Wynne in 1995. 14. 42 U.S.C. §1981. 15. Plummer v. Casey, 148 F. Supp 326 (S.D. Tex 1955). 16. Id, at p. 328. 17. Following a jury trial before an all-white jury, the charges were dismissed. 18. Houston Chronicle, April 11, 1956. 19. The other two judges were Judge John Minor Wisdom and Judge John R. Brown. Rives and Wisdom were appointed by Democratic Presidents. Brown and Tuttle were appointed by Republican Presidents. All deserve to be in the panoply of American heroes. 20. Derrington v. Plummer, 240 F. 2d 922 (5th Cir. Tx. 1956). 21. Houston Post, December 30, 1956. 22. Washington would later join a law firm with Andrew Jefferson, to form the well-named firm Washington and Jefferson. 23. Judge Connally had also presided over the desegregation case involving the Houston Independent School District. It is said that he was prouder of his decision in that case than any other. 24. Houston Chronicle; August 17, 1962. 25. Harris County Commissioner, Precinct 4, 19441990. 26. From oral interview with J. M. “Mac” McCain, page 75. http://www.hctx.net/CmpDocuments/20/Oral%20 History/OH02McCainFinalpdf.pdf; Harris County Archives.
The Texas Lawyers’ Assistance Program (TLAP) is a confidential crisis counseling and referral program that helps Texas lawyers, law students and judges who are challenged by substance use and other mental health disorders, including clinical depression, anxiety, and stress related concerns. TLAP has teamed up with Houston Lawyers Concerned for Lawyers (LCL) to offer a support group for lawyers with substance use issues that meets Tuesday at noon at 303 Jackson Hill Street, Houston, Texas. TLAP and local volunteers have also joined together to form the Houston Lawyers’ Forum on Depression, which meets on the first Monday of every month from 6-8 pm. This group provides participants with a light dinner, presentations by local mental health professionals and peer support. For more information, please call TLAP at
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By Ann D. Zeigler
The P Ladies Who Brawl: How a Houston Judge Saved the Alamo
erhaps you remember the headline: “Brawl in Senate Chamber, Members Walk Out.” Or this one: “Alamo Guardians Enjoin Each Other.” There was even a pointed statement printed in newspapers statewide about the matter by an extremely proper lady, disclaiming that she was the president of the Daughters of the Republic of Texas. The headlines didn’t make it into print in that exact form, since the activities happened in 1907, when headlines (and many other things) were more genteel. That was a time when the names of women whose forbearers were among the founders of the Republic of Texas made it into newspapers only when they were christened, married and buried, or when they hosted noteworthy social gatherings. However, when their beloved Alamo Shrine was the subject, propriety be damned. The brawl occurred on April 19, 1907, in the Texas Senate Chamber of the Capitol building, in Austin, during the sixteenth annual convention of the Daughters of the Republic of Texas (the “Daughters”). Having “heard that there was going to be a row between the [competing] factions, and never having seen a ladies convention in a muss” several senators, joined by a group of news reporters and businessmen, later testified that they “decided to remain when the senate adjourned, and see how it came out.” While a screaming brawl certainly wasn’t what anyone would have expected from looking at the convention program, that appears to be what occurred. The ruckus began shortly after the meeting was called to order when Miss Adina De Zavala (president of the De Zavala Chapter No. 7 of San Antonio) and Mrs. Looscan objected to the current leadership’s efforts to appoint a new slate of officers claiming that parliamentary procedure and the organization’s
bylaws required them to be elected. After their objection was overruled, Governor Thomas M. Campbell gave a short welcoming speech urging the Daughters to observe the “cooperation and harmonious actions” by which the pioneers of Texas independence succeeded in their glorious quest to establish the Republic. Austin Mayor Frank Maddox also welcomed them. During the program portion of the convention speeches were given and poems read, welcoming the groups assembled and calling for heroic and selfless action in preserving the memory of the sacrifices of the founders of the Republic. Some remarks even foreshadowed the upcoming brawl. For example, one speaker took the opportunity to remark that the “apple of discord entered our ranks in an effort for supreme control of the Alamo property,” which others should take care to avoid in their great devotion to the work of honoring and preserving their sacred history. After the planned program concluded, First Vice President Rebecca J. Fisher of Austin opened the meeting up to business by appointing Mrs. I.B. Alford of San Antonio to preside over the meeting. Miss De Zavala and Mrs. Looscan again objected from the floor, arguing that the appointment was inappropriate, but their objection was ruled out of order after Miss Fisher said that she could choose whoever she wished to conduct the parliamentary portion of the meeting. Supported by some of the men observing the meeting, Miss De Zavala and her supporters continued objecting to efforts to move forward with the group’s business. Their efforts created considerable disorder and the meeting adjourned for lunch. Things did not improve after lunch when Mrs. Fisher informed the members that she had conferred with several excellent parliamentarians, who agreed that she could appoint anyone she chose to conduct the meeting. Mrs. Alford thereupon resumed officiating. In an effort to regain control of the meeting, an elected officer read a list of restrictions on who could speak, when they could speak, how
long they could speak, and on what topics they could speak. Suffice it to say, the list could barely be heard over the screaming pandemonium in the chamber. The numerous parliamentary objections of the De Zavala faction were summarily ruled out of order. The minutes of the meeting note the active and vigorous participation of various men, identified to the chair as senators and senate pages, who were adding to the general noise and confusion, apparently annoying the Fisher faction by urging on the De Zavala faction. A scuffle ensued over the gavel. After Mrs. Fisher regained control over the gavel, but not the meeting, she crashed the gavel onto the rostrum and declared the convention adjourned sine die and walked out with 46 of the 68 members present. Asserting that the meeting was not properly adjourned, the De Zavala faction decided to continue the meeting and attend to business. This included electing a new slate of officers, including electing the ailing Mrs. Anson Jones (widow of the President of the Republic) as president of the De Zavala group. Upon hearing that she was elected as president of Adina De Zavala’s group, Mrs. Jones took the unusual step on June 15, 1907, of sending a letter to newspapers around Texas, disclaiming the position. So what was that wild, undignified shrieking melee about? What was behind all the calls for sweetness and harmony? Why were the senators encouraging the Daughters to riot in the senate chamber? Was this a power grab? More to the point, what happened next? The story picks up in early July 1907 when the Fisher faction, represented by the Houston firm of Lane, Jackson, Kelley & Wolters, appeared before the Honorable Norman Kittrell in the 61st District Court in Houston to file a petition for a permanent injunction. They sought to prevent Adina De Zavala and other leaders of the De Zavala faction, by name, from holding themselves out as officers of the Daughters of the Republic of Texas, or in any other way asserting that they
were entitled to control the property, accounts, rental income, and relics of the slain heroes given in sacred trust to the Daughters by the State of Texas. You may ask, “Why Houston, when the Alamo, as even non-Texans know, is in San Antonio?” It was because Mrs. Fisher and her supporters wanted the case heard before Judge Kittrell. Although he declined to enjoin the De Zavala fraction, he immediately issued a “temporary stay” of any action by the De Zavala group to assert control over the Alamo-related property and relics (including a gold snuff box which had belonged to General Santa Ana). Adina De Zavala did not take kindly to Judge Kittrell’s actions, nor to the contents of the Petition for Injunction in which the Daughters referred at length to the Hugo-Schmeltzer property operating in the Alamo shrine precincts, describing it as a run-down and disgusting wholesale whiskey warehouse on the inside and a bill-posting site on the outside, which deserved no better than to be ripped down to provide space for a park to surround the Shrine. The answer and crossclaim by Miss De Zavala and her comrades in arms reveals that the whiskey warehouse was not in fact attached to the Alamo mission church, but shared a common wall with one of the other historic buildings on the Alamo property. Since the Daughters lacked funds to maintain the Alamo buildings, the one adjoining the HugoSchmeltzer warehouse was slowly decaying, except to the extent that the HugoSchmeltzer management made repairs at their own expense to maintain their portion of the structure. Judge Kittrell knew far more about this than he let on in issuing the stay order against Adina De Zavala and the other defendants. At an executive committee meeting held before the annual meeting, Judge Kittrell presented to the leadership of the Daughters a business proposal from a close friend of his who represented the Vandeventer Hotel Company of St. Louis. The hotel company proposed to remove thehoustonlawyer.com
the buildings occupied by the HugoSchmeltzer whiskey warehouse, and to create and maintain for a period of years a park around the Alamo mission. It also agreed to pay the salary of a custodian for the Alamo mission church for five years. They would use the cleared site, exclusive of the park area, for a very nice hotel. Claiming they lacked authority until after the deal was raised as an item of new business at the annual convention, the executive committee chair made a counterproposal, demanding major funding for renovations to the mission along with payment of all costs for removal of the Hugo-Schmeltzer business premises and other “new” construction “attached” to the mission. The counterproposal went so far as to describe the decorative vines to be planted against the walls and the content of a brass plaque to be erected at the shrine. Apparently, the St. Louis group was not eager to get into the sort of transaction the Daughters’ executive committee contemplated and withdrew its offer. Adina De Zavala found out about the efforts to evict the Hugo-Schmeltzer Co. from the Alamo ground from Mrs. Looscan, who was at the meeting with Judge Kittrell. Determined to thwart these efforts, she then instructed the Hugo-Schmeltzer Co. to send the monthly rent to the San Antonio De Zavala Chapter instead of the statewide organization. She also instructed the Daughters’ bank not to issue any checks unless authorized by her. Although the executive committee was aware of De Zavala’s actions, it met again before the convention to consider a new proposal from a group of San Antonio businessmen. This group proposed to remove the offending Hugo-Schmeltzer building and other barns, warehouses and galleries that had been built up around the old mission church, and to build a park around the original buildings. Noting that Hugo-Schmeltzer was now approximately four months behind in paying its rent to them, the executive committee voted to increase their rent. 20
Back at the 61st Court in Houston, the De Zavala group, represented by Houston attorneys W.G. Love, J.T. Guinn and Donald A. Bliss, filed their answer and counterclaim against the Fisher faction. In their pleadings, they pointed out in detail that Judge Kitrell–the judge presiding over the injunction hearing–was a direct participant in the attempts by the executive committee to exclude the De Zavala group from discussions of a potential business deal directly affecting the integrity of the Alamo buildings. In their counterclaim, they cited specific provisions of the organization’s constitution and bylaws (as amended) that provided for the vice presidents to preside over the meetings of the membership in their numerical order. They also stated that the organization’s constitution was amended at the 1905 convention to give direct management of historic sites to the local chapters. It was amended in contemplation of the possible purchase and preservation of the San Jacinto battleground and other smaller historic sites by their respective local chapters, since those could not be funded by the statewide organization. The De Zavala group also complained that the negotiations by the Fisher group’s executive committee directly thwarted their control over the Alamo and its income-producing whiskey warehouse, the Hugo-Schmeltzer property. The Fisher group was forced to amend their petition and answer, acknowledging Judge Kittrell’s participation in their business dealings, but praised his lifelong patriotism and support for the Daughters in their sacred mission to protect the shrine of Texas heroes. Their amended petition delicately dances around the dispute and the actions of both sides in protecting the Alamo. Ultimately, the groups narrowed their factual disputes to the question of what was meant by the term “Alamo.” Did it mean the central structure—the mission church? Or did it mean the entire group of buildings associated with the church building at the time of the war for independence, one of which had a “new”
addition, the whiskey warehouse? In response to discovery, copies of the program booklet that were produced after the convention, which included the minutes of the various executive committee meetings prior to the convention— including at least one in which Judge Kittrell attended to present his friend’s business proposal—became a part of the case file. In addition, witnesses who were deposed on written interrogatories and cross-interrogatories described the convention in colorful terms. Senator E.I. Kellie, in responding to interrogatories about whether there was an actual motion and vote to adjourn, said, “I could not say positively, the confusion about this time was getting so great, and looked very much like there was going to be a scrap, and I being of small stature, weighing 114 pounds, I left my seat and went to the rear of the chamber near the door, so that I could run if necessary.” Several of the senators and businessmen admitted to coaching the De Zavala group in parliamentary procedure from the sidelines, and joining in the general uproar. None could say with certainty whether there was an actual motion and properly conducted vote to adjourn sine die prior to the Fisher group walk-out, due to the volume of the shouting and the fact that most of the women were on their feet. Indeed, the mere physical possession of the gavel was a matter of some sport among the women, according to the senators’ depositions. The case file does not reflect an additional interesting piece of information. At one point, Adina De Zavala was reported to have barricaded herself in the disputed building, although it was not clear which side of the common wall she was on—the whiskey warehouse side or the original Alamo building side. The injunction suit finally went to trial in the 61st District court in Houston on June 1, 1908. A handwritten Motion for New Trial by the defendants is dated that day. Findings of Fact and Conclusions of Law were issued on June 9. That document is signed by Judge Leo W. Moore; Judge
Kittrell, having read the handwriting on the wall, had recused himself pretrial. Judge Moore’s Findings of Fact and Conclusions of Law had very carefully recited the fewest possible facts to dispose of the suit, displaying a delicate balance between the feuding groups of prominent ladies. He found that the Daughters had indeed amended their constitution at the annual convention held at Goliad in 1905, to give responsibility for the Alamo property to the De Zavala chapter. He found that Adina De Zavala notified the tenant of the whiskey warehouse in November 1906 to pay the rent to the De Zavala Chapter, and that she notified the Daughters’ bank at that time to honor checks on the Alamo account only if written by the treasurer of the De Zavala Chapter. He concluded as a matter of law, however, that the organization could not amend its constitution to change the terms of the legislation giving both the property and the responsibility to maintain it to the Daughters of the Republic of Texas’ statewide organization.
Judge Moore found that the organization’s constitution required that in the absence of the president, the vice presidents should preside in numerical order. He concluded that the adjournment sine die was effective and that any action taken by the remaining members after the Fisher faction departed was null and void. (This included two subsequent separate annual conventions at which officers were elected by the De Zavala faction.) The judge found that in compliance with the Daughter’s constitution, the officers were elected to serve two-year terms and that the Fisher faction had been elected in 1906. As a result, no election of officers by the De Zavala group was proper in 1907, and the group’s subsequently elected officers were without authority. Judge Moore also concluded that Mrs. Fisher’s appointment of Mrs. Alford to preside at the 1907 convention was not just irregular but null and void, and any action taken and business transacted after that appointment were also null and void. Finally, Judge Moore found that by the
time of the trial both factions intended to demolish the whiskey warehouse portion of the building that caused the rift, and replace it with a park. A petition for writ of error was filed in September 1908. The Court of Civil Appeals at Galveston returned its mandate in due course on May 21, 1910, finding no error. By the time of the mandate, there had been two annual meetings of the respective factions, and the illustrious Mrs. Anson Jones, the president of both factions, had passed to her eternal reward. You can read more of case file #43344 or other equally interesting bits of Houston’s history. Check the link to the historical records project on the Harris County District Clerk’s Web site, www.hcdistrictclerk.com. Many historical cases have been digitized as part of the county’s historical documents preservation project. Ann D. Zeigler is a senior consultant with Third Coast Consultants, specializing in electronic document discovery issues, and a former editor in chief of The Houston Lawyer.
By Jennifer A. Hasley
When I F Grow Up, I Want to be a Lawyer...
or those individuals who dream of joining the noble legal profession and becoming an attorney, it is almost unimaginable to consider that at some point after completing four years of college, three years of law school, taking and passing a bar examination, and actually representing clients, there could be an allegation of professional misconduct—or worse, a finding of professional misconduct. While certain risk factors may increase the likelihood of an attorney being the subject of a grievance,1 these are not necessarily synonymous with the type of conduct that results in the imposition of a disciplinary sanction. This article provides an overview of the Texas attorney disciplinary system, identifies conduct that may result in disciplinary action, and provides practical ideas for improving the quality of the legal services rendered and job satisfaction.
Not a Respondent in a Disciplinary Action
Overview of the Texas Attorney Disciplinary System The conduct of attorneys practicing law in the state of Texas is governed by the Texas Disciplinary Rules of Professional Conduct (TDRPC). With authority from the Supreme Court of Texas and the Texas Legislature, the State Bar of Texas Office of the Chief Disciplinary Counsel (CDC) administers a disciplinary system for those whose conduct does not comply with the TDRPC.2 The disciplinary system is a complaint driven process. Any person or entity including, for example, a current or former client, employee, spouse, witness, opposing counsel, judge, etc., may file a grievance against an attorney.3 Within 30 days after a grievance has been filed, the CDC makes an initial classification decision.4 The CDC will either dismiss the grievance as an “inquiry”5 or upgrade the grievance to a “complaint”6 which requires a formal written response.7 At this point, the attorney becomes the
“Respondent.”8 For complaints, the CDC is obligated to investigate the allegation(s) and make a “just cause”9 determination within 60 days.10 Recommendations for dismissal are referred to a summary disposition panel for approval.11 If the CDC determines that “just cause” exists to proceed forward, the Respondent is given the opportunity to elect a proceeding before an Evidentiary Panel comprised of volunteer attorneys and public members or a trial in district court.12 Evidentiary Panel proceedings are generally confidential until a public sanction is imposed.13 These proceedings provide for the possibility of a private reprimand as a potential disciplinary sanction.14 Evi-
dentiary proceedings are less formal than traditional court trials and may not comply with the rules of civil procedure or evidence.15 Evidentiary judgments may be appealed to the Board of Disciplinary Appeals, a 12-attorney tribunal, appointed by the Supreme Court of Texas.16 District court actions require the appointment by the Supreme Court of Texas of an active district judge who does not reside in the Administrative Judicial District in which the Respondent resides.17 The district court action offers the option of either a bench or jury trial and adheres to traditional rules of civil procedure and evidence. Generally, a private reprimand is not an available disciplinary sanction.18 A district court judgment may be ap-
pealed to the state appellate court.19 Upon the finding of just cause and the filing of the Evidentiary or District Court petition, the CDC represents the Commission for Lawyer Discipline (CFLD), referred to as the “Petitioner.” The CFLD is a standing committee of the State Bar of Texas composed of twelve volunteer, nonpaid members (six attorneys appointed by the President of the State Bar of Texas and six non-attorney members appointed by the Supreme Court of Texas).20 The CFLD has the burden of proving a Respondent’s violation of the disciplinary rule(s) at issue by a preponderance of the evidence.21 If no professional misconduct is found, the case is dismissed. If there is a finding of professional misconduct, disciplinary sanctions that may be imposed range from a private reprimand,22 public reprimand,23 fully probated suspension,24 partially probated suspension,25 active suspension,26 to disbarment.27, 28 The CDC, as the prevailing party, routinely seeks attorney’s fees and costs; however, these are discretionary to the panel or court.29 Avoiding the Top Five Alleged Disciplinary Rule Violations
The five most frequently cited rule violations alleged against Texas attorneys involve (1) neglect, (2) failure to communicate, (3) integrity issues, (4) circumstances surrounding the termination of representation; and (5) failure to safe-
guard client funds and property.30 Neglect Neglect by attorneys is the most frequently alleged disciplinary rule violation, prompting 25 percent of all grievances. According to TDRPC 1.01(b): In representing a client, a lawyer shall not: (1) neglect a legal matter entrusted to the lawyer; or (2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients.31 Neglect is further defined as “inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients.”32 From a client’s perspective, “neglect” may be something very different from the standard set forth under the TDRPC. Any perceived inattentiveness by the attorney may be viewed as neglect. Regardless of whether the impression is justified, the following actions, or inactions, by the attorney may lead to client dissatisfaction: • Unavailability and unresponsiveness to client-initiated communications. • Late arrival to appointments and court appearances. • Perceived lack of case-specific knowledge or limited expertise. • Apparent lack of commitment. • Failure to listen carefully and explain clearly. • Inattentiveness during client meetings. • Procrastination. An attorney can be proactive in warding off unnecessary grievances by: • Regularly communicating with clients by promptly returning phone calls, responding to emails, providing status reports, sending detailed bills, etc. • Using and maintaining a reliable calendaring/docketing system. • Keeping detailed records of time spent on a case (regardless of whether it is an hourly, flat, or contingency fee case). thehoustonlawyer.com
â€˘ During periods of inactivity, maintaining contact with clients and explaining how the inactivity benefits their case. â€˘ Training attorneys and staff on professionalism, ethics, organization, and confidentiality. Communication Good client relationships begin with good communication. Attorneysâ€™ failure to communicate is the second most frequently alleged disciplinary rule violation, prompting 22 percent of all grievances. According to TDRPC 1.03: (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Client complaints that fall into this
category focus on a complete lack of or lapses in communication, inadequate information, dissatisfaction with the representation, and/or a disappointing case outcome. Communication is the cornerstone for being an effective advocate for the client. At the inception of the attorney-client relationship, it is important for the attorney to establish a clear and mutual understanding of the level of communication that is expected and will be maintained throughout the representation. It is often insufficient to rely solely on oral communications with a client. Documenting the conversation in a follow-up letter or email not only gives the client a chance to review and reflect upon the information conveyed, but also establishes a solid record of compliance with the attorneyâ€™s obligations under TDRPC 1.03. Lack of adequate communication often stems from several root causes: (1) inattentiveness to cases perceived by the attorney as less important; (2) difficult or demanding clients; and (3) deficient of-
fice policies and staff training. Before undertaking the representation, a critical assessment of both the prospective client and the legal issues can help identify and circumvent potential problems. Clients will generally be at their best during the initial meeting. If presented with a difficult or needy client, the attorney should consider either passing on the representation or establishing clear boundaries and reasonable expectations. Clients who demand the most time from their attorneys are often the first to file grievances when they do not receive the attention they feel they deserve. Similarly, if a legal matter is not going to generate the fees to warrant the attorneyâ€™s full interest and commitment, the attorney should not accept the representation. Disciplinary cases citing failure to communicate frequently result from undertaking a case at a discounted rate or as a â€œfavorâ€? to a friend, family member or colleague. Under these circumstances, an attorney may not follow customary formalities, feel less obliged to the client, and be less attentive, all
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