NICK GUINN
The Curious Leader with a Bold Heart
Nick Guinn, San Antonio Bar Association President
Photos by Jessica Mewborne Photography on location at the Rhinory, a Fredericksburg winery that supports rhino conservation through education and a rhino sanctuary.
“His
“A real thinker and innovator”
“One
“Lots
“Works
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Lauren Miller
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Steve Peirce
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ileta! Sumner
Natalie Wilson
Ex Officio
Nick Guinn
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President Nick Guinn
President-Elect
Jaime Vasquez
Treasurer
Emma Cano
Secretary Elizabeth Provencio
Immediate Past President
Patricia "Patty"
Rouse Vargas
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Directors (2024–2026)
Jorge Herrera
Abel Martinez
Cynthia Orr
Kristal Thomson
Directors (2025–2027)
Krishna Reddy
Michael Ritter
Elena Villaseñor Sullivan
Collanne West
Executive Director
June Moynihan
State Bar of Texas Directors
Patricia "Patty" Rouse Vargas
Chiscano
Patricia "Patty" Rouse Vargas
Association of Corporate Counsel South/Central TX
Bexar County Women’s Bar Association
Christian Legal Society
Defense Counsel of San Antonio
Federal Bar Association—San Antonio
Mexican-American Bar Association—San Antonio
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San Antonio Criminal Defense Lawyers Association
San Antonio Trial Lawyers Association
San Antonio Young Lawyers Association
TEX-ABOTA, American Board of Trial Advocates—San Antonio
William S. Sessions Inn of Court
JULY–AUGUST 2025
The Odyssey of Luke Soules
Author:
Steve Peirce
CONGRATULATIONS!
RE: “The Odyssey of Luke Soules”
To [Sara Murray] and the staff of the San Antonio Lawyer for publishing in the July-August 2025 issue “The Odyssey of Luke Soules.”
To Steve Peirce for using his writing talents in unearthing hidden facts to produce another masterful biography about one of San Antonio’s truly outstanding lawyers.
To Luke Soules for proving, without any doubt, why my heroes have always been lawyers—especially like Luke.
Please allow me to thank all of you.
—Frank R. Southers
Steve,
I just finished your piece about Luke Soules in this edition of San Antonio Lawyer. Excellent prose, and what a topic!
I appreciate you and Luke carrying the torch of this profession and its purposeful contributions to clients and community.
I hope you’ll pass along my admiration to Luke, and I hope we get a chance to share a meal.
— Alexander D. Good, Senior Attorney, Dykema
Subject: San Antonio Lawyer Profile
Good afternoon, Luke,
Once again, our “biographer” has done a masterful job of telling a life story and of course Sara, the photographers, et al. produced a great edition.
It was good to visit at the Bar Gala!
Take care.
—The Honorable Fred Biery, United States District Court Judge
Steve and Sara. It was/is such a pleasure to work with you. I am getting nice reception of your great (except for the subject) article. Thank you and Sara so very much for so honoring me. Remarks from friends and family encourage me to hang around a while.
Best!
WE LOVE FEEDBACK!
Please send letters to the editor to Sara Murray, Editor in Chief, at smurray@langleybanack.com. The San Antonio Bar Association thanks our editors, board of editors, and contributing volunteer writers for bringing an unparalleled quality of editorial content to our valued readers.
Soules
The Odyssey of Luke Soules
Luke Soules
By June Moynihan
the Rhinory
by Jessica Mewborne on location at Rhinory, the Fredericksburg winery that supports rhino conservation through education and a rhino sanctuary.
A wine aficionado and member of the Rhinory wine club, Nick Guinn enjoys time with Rhinory's resident Southern White Rhino, Blake. For more details, visit rhinoryfoundation.org.
Nick Guinn
Photos
If there’s a drumbeat in San Antonio’s legal community that sounds a little different this year, it might just be Nick Guinn’s cadence. The incoming President of the San Antonio Bar Association does not merely walk to the beat of his own drum. He writes the score, and lucky for the bar, the music is both innovative and inclusive. Nick’s phone contact list is vast, and many on that list can do a spot-on imitation of Nick calling with his signature, buoyant greeting: “What’s up, player!” It’s pure Nick, equal parts charm, wit, and unexpected delight.
The Curious Leader with a Bold Heart
An Independent Spirit, Rooted in Legacy
Nick’s story is steeped in legacy but charged with originality. A multi-generation attorney with deep Texas roots, his path to leadership is a masterful remix of inheritance and reinvention. His paternal grandmother, Mary Vance Guinn, was a trailblazer long before the term became trendy. She earned an engineering degree from the Texas College of Mines and Metallurgy (now University of Texas at El Paso) and, as a mother of six, studied for the bar exam with her husband tutoring her. She became the second woman admitted to the bar in El Paso. The couple practiced law together. A rarity then and still rare now. Her husband, Ernest Allen Guinn, was appointed to the federal bench by President Johnson in 1966, where he served until his death in 1974 and was succeeded by William Sessions. Nick’s parents, Susan Davis Guinn and Gammon Guinn, met while Gammon was in law school, and Susan started law school a few years later. Susan finished her final year and prepared for the bar exam while pregnant with Nick. “Family joke is, Nick did 3L twice,” his father says with a grin.
Despite the dynastic credentials, though, Nick never coasted. From the start, he marched to his own beat. In second grade, just before picture day, Nick demanded a mohawk. His curls rebelled against punk gravity, but the smile on his face said it all: “They’re just jealous.” That fearlessness never mutated into arrogance. Nick is both confident and deeply attuned to others. He’s the kind of person who actively seeks feedback, genuinely listens, and frets if he thinks he has hurt someone’s feelings. His empathy is as sharp as his intellect—both qualities that have earned him enduring admiration.
Susan recalls that her father passed when Nick was just two. Her mother, Peggy Davis, offered to watch Nick during the work week. The arrangement quickly became more than childcare. Peggy credited toddler Nick as her emotional lifeline during her mourning. That closeness endured. Nick and his youngest sibling, Lindsay, often spent afternoons at Granny’s, bonding over Jeopardy reruns. “The
Ken Jennings run? Legendary,” Nick says. “He’s still a hero of mine.”
Nick’s oldest sister, Katie Cermin, says his sensitivity has always been baked in. “At church youth group, he made a point to talk to someone new each Sunday. He’s genuinely interested in people. It’s not a performance.” Nick’s been building community ever since. His friendships span decades and zip codes, from sports teammates to college dorm mates to bar association colleagues. He doesn’t collect contacts; he cultivates relationships.
Brains, Bread and Board Games
If you’re tempted to pin Nick as just another brilliant bar leader, don’t. He’s a joyful obsessive—the best kind. Each year, he sets a personal challenge and pursues it with unrelenting curiosity. One year, it was reading all eighty-eight Pulitzer Prizewinning novels in eleven months. The next, he became a puzzle savant, joining an online puzzlers’ guild and signing up for monthly challenges like completing a 500to 1,000-piece puzzle every day for thirty straight days. This year? Sourdough. His first attempt at cultivating a starter turned into a full-blown lab experiment—one that went sideways. “I definitely didn’t get the feeding schedule right,” he admits. “It was more science project than sourdough.” Eventually, the batch had to be declared a loss, with Nick conceding defeat only after it became clear that the microbial colony had veered into possible health hazard territory.
But Nick doesn’t give up. He decided the joy was in the treats he could bake—not in risking food poisoning from a contaminated starter—so he sourced a reputable starter culture from a professional supplier—and never looked back. These days, he’s a baking fiend, churning out golden loaves, pancakes, and muffins with both precision and pride.
Kristen, his wife, jokes that Nick’s hobby of the year becomes a household vibe. “The October puzzle challenge was Halloweenthemed. We were knee-deep in orange and purple pieces. It was festive and very crowded.” And then there was the bassoon. “Nobody made him,” Lindsay says, deadpan.
“He picked it. The weirdest, most difficult woodwind. Classic Nick.” He played through high school before retiring the instrument with only slight regret. He’s also your dream Trivial Pursuit partner, a ruthless Scrabble strategist, and, thanks to Granny Peggy, a walking Neil Diamond jukebox.
Don’t think Nick doesn’t have a blind spot. That would be Leo. Leo is their Australian Labradoodle, a giant, bouncy toddler of a dog with the energy of five. Nick and Kristen both think Leo is the bee’s knees. Friends and family, however, will tell you: Leo is never going to sit down quietly, stop jumping, or ignore the Amazon delivery guy. But that’s okay, because that spoiled, apricot-colored demon dog is the joy of their lives, and Nick would not have it any other way.
A Professional Path with Purpose
Nick earned a chemical engineering degree in just three years before pivoting to law at St. Mary’s University. It was a calculated move because he knew he wanted to work in a field that fused invention with legal impact. Intellectual property was a natural fit. His work ethic and warmth caught the eye of United States District Court Judge Fred Biery, for whom he clerked before being snapped up by Ted Lee at Gunn Lee & Cave. He’s now a partner in their IP practice.
Nick does not just practice IP; he lives it. He is the author of several practical guides for IP enthusiasts and runs a YouTube channel that demystifies trademarks and copyrights for laypeople. “How can you relate to your clients if you don’t have your own copyright portfolio?” he says with a grin. His connections are never forced. One weekend, Judge Biery recommended him to a basketball buddy whose son needed IP help. As it turned out, the buddy was Nick’s middle school history teacher. “Full circle,” Nick said. The teacher remembered Nick from their school trip to D.C. Nick remembered the chaperone and the jokes. The legal matter was resolved swiftly and with grace.
Ted Lee remembers seeing Nick present a CLE alongside Judges Stryker and Price. “He’d already passed the patent bar. I joked that I stole him from Biery, but the truth is Biery spoke of him so fondly he practically delivered him with a bow.” Passing the patent bar is no small feat. The exam is notoriously difficult, so much so that eligibility alone requires a science or engineering degree. Most test-takers, including those with JDs or even advanced technical degrees, only pass about half the time. Historically, the overall pass
Top: Nick clerked for US District Judge Fred Biery. Bottom left to right: Nick’s famous 2nd grade mohawk; Nick’s graduation from UT-Austin; Nick and Leo
rate hovers below 60%, but Nick cleared it on his first try—a testament to his discipline, technical fluency, and legal dexterity. “It’s as much an exercise in logic and language as it is in engineering,” he says. “It’s often said, you have to think like a scientist and write like a lawyer.” Ted adds, “He’s got this attitude of excellence. He’s hungry to be great, but he’s also kind. Clients love him. Colleagues trust him. That’s a rare combination.”
From Law to Leadership
Nick’s leadership style is hospitable and hyper-observant. Whether he is hosting friends, mentoring interns, or running a meeting, he is always scanning the room for anyone who’s left out and pulling them in. Lindsay recalls a college tour of UT-Austin when she was weighing her options. Nick, then an RA in the Jester dorms, seemed to know everyone. “We couldn’t go ten feet without someone shouting, ‘Hey Nick!’ It was overwhelming. That’s when I knew UT wasn’t for me—but it made sense why it was perfect for him.”
Nick makes connections with grace and generosity. One of his most charming traits is how he boasts about his friends behind their backs. If someone’s name comes up, good, bad, or in between, he often responds with a disarming and kind anecdote. It’s not performative, and it’s not devil’s advocacy. He genuinely wants others to see people from a fuller, more generous perspective.
Once, a friend mentioned he had twice encountered someone at late-night social events and had written him off as a bit of a goofball. Nick gently offered another angle: “You know, in my professional work with him, he’s actually deeply philosophical and thoughtful. You should get to know him.” That small nudge changed everything. The friend eventually spent time with the guy (this time without beer) and came away with an entirely different impression. Try to connect Nick with someone new, and chances are he already knows him or his cousin.
He understands leadership is not about volume; it is about resonance. As SABA President, he plans to focus on the nuts and bolts of running a law practice: buying office space, succession planning, retirement transitions. The timing is crucial. The “silver tsunami” of Boomer retirements is cresting just as Gen Z attorneys, digitally fluent and disruption-minded, are arriving. “It’s not about abandoning tradition,” Nick says. “It’s about keeping what works and discarding what doesn’t. We can build bridges across generations. That benefits everyone.”
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Love, Family, and French Getaways
Nick met Kristen Carroll, a Georgia native and landscape architect, while studying for the bar. She had just moved to San Antonio the year before and did not know a soul. That changed quickly. Their shared interests quickly snowballed into shared adventures, including multiple trips to France. Before their first Paris visit, Nick took French lessons. A previous trip to Montreal had left a strong impression. He noticed that while most locals were bilingual, they always began interactions in French. “They were so gracious, switching to English when I hesitated,” he recalls. “But it hit me how rude it felt not to have tried, like I was asking them to meet me entirely on my terms in their own country.”
That moment stayed with him. In the six months leading up to their Paris trip, Nick dedicated himself to learning proper phrases, not just for transactions, but as a gesture of genuine respect. It wasn’t about fluency but about the effort, humility, and showing he cared enough to learn. He was visiting another country; the least he could do was meet the culture halfway. When the 2024 Paris Olympics were announced, the couple entered
the ticket lottery and got lucky. They cheered on Team USA in swimming and got drenched at the outdoor opening ceremonies. “We were soaked, but it was unforgettable,” Nick says. Their proposal story shows Nick at his most poetic: a Valentine’s Day walk along the beach on North Padre, lit with votive candles spelling out “Will You Marry Me?” followed by a surprise celebration with Nick’s family and Kristen’s family—flown in secretly from Atlanta—upon the couple’s arrival home to San Antonio. Gammon Guinn beams, “That’s Nick. Thoughtful to the core. He planned everything so Kristen could celebrate with the people she loves.” Susan adds, “Kristen lets Nick be Nick, and he lets her be herself. It works.” Kristen recalls that her friends thought she was truly blinded by love when she described Nick’s kindness, humor, and old-fashioned good manners. “Then they met him and instantly got it.” She got the nod of approval from her friends.
Big Brain, Bigger Heart
Nick’s siblings, Trey, Lindsay, and Katie, describe him as “quirky in all the right ways.” A Learn-It-All, not a Know-It-All. An academic who can chat wine varietals, SEC football, or
Top left to right: Nick’s sisters, Katie & Lindsay, wife Kristen, Nick, parents Susan & Gammon and brother Trey.
Gunn Lee Cave firm Holiday party
18th-century political theory with equal ease. Trey shares, “When we overlapped at UT, me in grad school, him in undergrad, he couldn’t fathom why I might consider any place but San Antonio for a career. ‘San Antonio has everything,’ he told me. That’s Nick. He doesn’t just live here, he loves it.”
As SABA president, Nick wants the bar to reflect the evolving profession. “We have a beautiful legacy,” he says, “but we should be the bar of today and tomorrow, not yesterday.” He believes benefits should be modernized regularly, with outdated offerings replaced by tools that lawyers actually need. He’s optimistic about where the profession is headed. “Soon, AI will handle the boring stuff—research, logistics. That will free lawyers to focus on strategy, storytelling, and nuance. The craft of lawyering will be about your ideas, your insights, and your ability to solve problems creatively. And I think that’s thrilling.”
Nick Guinn may be a product of legacy, but he’s the embodiment of momentum. His roots in the legal community run generations deep, yet he sees that heritage not as a resting place, but a launchpad. “It’s not about being a legacy,” he says. “It’s about creating one.” He wants to build something his grandparents would admire and something his successors can take further. That means asking hard questions, embracing better tools, and designing a bar that serves not just who lawyers used to be, but who they are now and who they’re becoming. It also means remembering that leadership is service. That community is not measured by committees or CLE hours, but by how seen and supported members feel.
As Nick takes the helm, he does so with the humility of someone who knows how lucky he is and the courage of someone ready to leave things better than he found them. And— luckily for the San Antonio Bar Association, its members, and the community at large— he’s just getting started.
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Nick and his wife Kristen
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bankruptcy trustees:
Who Are They and What Do They Do?
By Leslie Sara Hyman and Janell Thompson
If you have had any interaction with the bankruptcy courts, you probably heard reference to “the Trustee,” but may not know who that person is or what his or her role is in the bankruptcy system. In fact, there are many trustees, each with different roles. This article will introduce the United States Trustee Program and the lawyers who serve in the various roles in San Antonio.
The United States Trustee Program
The United States Trustee Program falls under the auspices of the U.S. Department of Justice. It was created as a pilot program by the 1978 Bankruptcy Reform Act and was expanded in the wake of further bankruptcy reform in the mid-1980s.1 Currently, all states are part of the U.S. Trustee Program except Alabama and North Carolina, which remain under the U.S. Bankruptcy Administration program.
Prior to the U.S. Trustee Program, “in addition to their traditional judicial function of ruling on disputed matters in adversarial proceedings, bankruptcy judges dealt with an array of administrative tasks, such as appointing private trustees where appropriate; organizing creditors’ committees; supervising the filing of required reports, schedules, and taxes; and monitoring cases for signs of abuse and fraud.”2 Congress became concerned that this was “creating an appearance of bias, particularly because judges were responsible for supervising trustees that they themselves had appointed.”3 Congress thus created the U.S. Trustee Program with the stated purpose to “[p]rotect the integrity and promote effectiveness and efficiency” of the American bankruptcy system.4 The U.S. Trustee Program functions as a disinterested monitor among debtors, creditors, and attorneys and has standing to participate in any bankruptcy case under the Program.5
The U.S. Trustee Program has an Executive Office in Washington, D.C., which oversees the Program’s operations and handles its administrative functions. Tara Twomey is the current Director of the Executive Office. The Program is subdivided into twenty-one regional offices, two of which are in Texas. Region 6 covers the Northern and
Eastern Districts of Texas, while Region 7 covers the Western and Southern Districts. Each regional office is headed by a United States Trustee and, depending on the size of the region, may have one or more Assistant United States Trustees. The offices also employ trial attorneys, paralegals, auditors, and legal assistants.
The duties of regional United States Trustees include:
• Appointing and supervising private trustees in bankruptcy cases under Chapters 7, 11, 12, and 13;
• “[A]ssuring compliance with the Bankruptcy Code with respect to information disseminated in cases through reports, schedules, disclosure statements, reorganization plans, and other filings”;
• Reviewing fee applications of attorneys, accountants, and other professionals in Chapter 11 cases; and
• Monitoring bankruptcy cases for fraud and abuse.6
The United States Trustee may refer criminal matters identified through exercising its duties to the U.S. Attorney for prosecution.
A San Antonio Native Sits as U.S. Trustee in Region 7.
The current U.S. Trustee for Region 7 is San Antonio native Kevin Epstein. Epstein graduated with honors from Duke University, where he received a B.A. in Political Science and History. He received his J.D. with honors from the University of Texas School of Law. After law school, Epstein clerked for Bankruptcy Judge James R. Grube in San Jose, California. He then worked for a law firm in San Francisco before joining the U.S. Trustee Program, where he spent his first twenty-one years as a trial attorney. He has been in San Antonio since 2003. During his tenure, he also has served as an Acting Assistant U.S. Trustee in charge of three different field offices. In 2020, thenAttorney General William P. Barr appointed Epstein as the U.S. Trustee for the Southern and Western Districts of Texas (Region 7), effective January 1, 2021. In addition, Epstein served as the interim U.S. Trustee for Region 6.7 The prior U.S. Trustee for Region 6 retired in 2023, and
Hipolito F. Garcia Federal Building and United States Courthouse
28 U.S.C. § 585(b) authorizes the United States Attorney General to fill U.S. Trustee vacancies by designating an incumbent U.S. Trustee to serve in a second region. Mr. Epstein served double duty until November 2024, when Lisa L. Lambert was appointed as the U.S. Trustee for Region 6.8 Supervising the bankruptcy cases for all of Texas left Epstein with no shortage of interesting cases to stay on top of and for which to provide input to the United States Bankruptcy Courts within Texas.
The San Antonio office of Region 7 is headed by Assistant U.S. Trustee Aubrey Thomas. Jim Rose, Erin Coughlin, Jessica Hanzlik, and Shane Flanery are the trial attorneys in Region 7.
The U.S. Trustee Program Provides Neutral Oversight of Private Trustees Throughout the Bankruptcy Process.
The role of appointing and supervising private trustees in bankruptcy cases under Chapters 7, 11, 12, and 13 leads to the next category of attorneys who may be referred to as “the Trustee” in a bankruptcy case. Due to the extensive scope of the Bankruptcy Code and the substantively different treatment of debts in various chapters of bankruptcy, the U.S. Trustee Program appoints private trustees to handle the span of Chapter 7, 12, and 13 bankruptcies.9 Private trustees are essential players in the American bankruptcy system.10 These non-government employees are independent contractors, serving under the appointment of the regional offices of the U.S. Trustee Program.
Chapter 7
Chapter 7 bankruptcies are commonly known as “liquidations.” The purpose of a Chapter 7 bankruptcy is to recoup money out of the debtor’s estate to pay out creditors.11 The U.S. Trustee Program manages a panel of private trustees who work to liquidate a debtor’s assets and reimburse a debtor’s creditors as quickly as possible. Whether the debtor is a consumer or a business, these private “panel” trustees are compensated through a percentage of the estate.12 In San Antonio, the Chapter 7 Panel Trustees are Pat Lowe, Randolph Osherow, and Jose Rodriguez.
Chapter 11 and SBRA
Chapter 11 bankruptcies are known as “reorganizations” and are most often filed by businesses, although individuals may file under this Chapter as well. Because the debtor continues to run the business as the “debtor in possession,” Chapter 11 bankruptcies typically do not require a private trustee. Instead, the U.S. Trustee supervises the administration of the case and monitors the debtor in possession’s compliance with the Bankruptcy Code and rules.13 In “small business” bankruptcies, the U.S. Trustee Program plays a greater role, including through conducting an interview with the debtor and evaluating the debtor’s business plan.14 In 2019, Subchapter V was added to Chapter 11. Subchapter V created an option designed to assist smaller businesses to navigate the business bankruptcy “reorganization” process more efficiently.15 A trustee is appointed in Subchapter V bankruptcies.16 The current “Sub V” standing trustees in San Antonio are Eric Terry, Michael Colvard, and Michael O’Connor.
Chapters 12 and 13
Chapter 13 bankruptcies are known as “restructuring” or “wageearner” bankruptcies.17 These bankruptcies assist debtors with holding onto certain property, usually a house or car, by setting up a three-to-fiveyear repayment plan to creditors.18 The U.S. Trustee Program appoints one or more private trustees as “standing” trustees for a geographic region and sets compensation for their services.19 These Chapter 13 standing trustees evaluate the feasibility and the likelihood of success for an individual Chapter 13 debtor, an important function given the long-term nature of these bankruptcies.20 Chapter 12 cases address the unique challenges of family farmer or fisherman bankruptcies and closely resemble Chapter 13 bankruptcy cases.21 In San Antonio, the standing Chapter 13 trustee is Mary Kathryn Viegelahn.
The Western District’s Influence on Supreme Court Decisions
In the last decade, two bankruptcy court cases originating in San Antonio addressing aspects of the U.S. Trustee Program have garnered the United States Supreme Court's attention. A dispute over the disbursement of a debtor’s funds brought a San Antonio-based case squarely in front of the Supreme Court in 2015.22 Consumer bankruptcies frequently convert from Chapter 13 restructuring bankruptcies to Chapter 7 liquidation bankruptcies. Courts had disagreed over how and to whom monies from the estate are paid in such circumstances.23 In Harris v. Viegelahn, the Supreme Court decided that any accumulated funds from a Chapter 13 case would be returned to the debtor post-Chapter 7 conversion, rather than remaining with the original Chapter 13 standing trustee.24
More recently, the San Antonio-based case In re Buffets dealt with the constitutionality of fee differences between the U.S. Trustee Program and the Bankruptcy Administrator Programs. In 2017, Congress imposed a temporary but significant increase in the quarterly fees paid by large Chapter 11 debtors. The law went into effect only in judicial districts covered by the U.S. Trustee Program.25 Buffets, L.L.C. and its affiliates had filed for Chapter 11 protection in 2016 and was arguably subject to these increased fees. Buffets challenged the fee and Judge Ronald B.
King held that the fee was unconstitutional, in part because it did not apply the same way in the judicial districts not covered by the U.S. Trustee Program.26 The Fifth Circuit reversed.27 The Supreme Court took up the question in Siegel v. Fitzgerald, to resolve a circuit split.28 The Supreme Court agreed with Judge King, unanimously holding that the law was unconstitutional as violative of the United States Constitution provision that Congress establish “uniform Laws on the subject of Bankruptcies throughout the United States.”29
Conclusion
The locally headquartered Region 7 U.S. Trustee Program office provides guidance and neutrality to the bankruptcy system across the state of Texas. The local standing and panel trustees likewise promote efficiency and consistency. Alongside these valuable resources, the local San Antonio bankruptcy bar stands ready to further interesting debate and scholarship regarding the role of bankruptcy trustees in the coming years.
Leslie Sara Hyman is a Shareholder in the San Antonio Office of Roberts Markel Weinberg Butler Hailey PC. She guides clients through complex legal issues in business disputes and bankruptcy matters from pre-dispute, to setting strategy, discovery, alternative dispute resolution, trial, and appeal. Among her many contributions to the community, Leslie has served as the Departments Editor for San Antonio Lawyer for many years.
ENDNOTES
Janell Thompson graduated from St. Mary’s University School of Law in December 2024. She is an associate at Vanhemelrijck Law Offices, PC.
2Siegel v. Fitzgerald, 596 U.S. 464, 468 (2022).
3Id.
4U.S. Trustee Program, Overview of the U.S. Trustee Program 14 (2015), https://www.justice.gov/d9/pages/ attachments/2015/07/28/volume_1_overview.pdf.
5Id.
6Overview of the United States Trustee Program, available at https://www.justice.gov/ust/bankruptcy-factsheets/overview-united-states-trustee-program.
7Press Release, U.S. Trustee Program, Kevin M. Epstein to Serve as the U.S. Trustee for the Northern and Eastern Districts of Texas for Interim Period (June 13, 2023), https://www.justice.gov/opa/pr/kevin-m-epstein-serve-us-trustee-northern-and-eastern-districtstexas-interim-period.
8Press Release, U.S. Trustee Program, Lisa L. Lambert Appointed as U.S. Trustee for the Northern and Eastern Districts of Texas (November 18, 2024), https://www. justice.gov/archives/opa/pr/lisa-l-lambert-appointedus-trustee-northern-and-eastern-districts-texas.
9U.S. Trustee Program, Overview of the U.S. Trustee Program 14 (2015) https://www.justice.gov/d9/pages/ attachments/2015/07/28/volume_1_overview.pdf. 10U.S. Trustee Program, Private Trustee Information, https://www.justice.gov/ust/private-trustee-information.
11U.S. Courts, Chapter 7- Bankruptcy Basics, https:// www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-7-bankruptcy-basics.
1See Eric A. Posner, The Political Economy of the Bankruptcy Reform Act of 1978, 96 Mich. L. Rev. 47, 94 (1997); Overview of the United States Trustee Program, https://www.justice.gov/ust/bankruptcy-factsheets/overview-united-states-trustee-program.
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12See 11 U.S.C. §§ 326 and 330.
13U.S. Courts, Chapter 11- Bankruptcy Basics https:// uscourts.gov/services-forms/bankruptcy/bankruptcybasics/chapter-11-bankruptcy-basics. On occasion, generally where there is some reason to believe that the debtor’s control persons cannot operate the business, a Chapter 11 trustee will be appointed by the bankruptcy court. Id.
14See 11 U.S.C. § 101(51C) for the definition of a small business. See also U.S. Courts, Chapter 11- Bankruptcy Basics https://uscourts.gov/services-forms/bankruptcy/ bankruptcy-basics/chapter-11-bankruptcy-basics.
15U.S. Courts, Chapter 11- Bankruptcy Basics https:// uscourts.gov/services-forms/bankruptcy/bankruptcybasics/chapter-11-bankruptcy-basics.
1611 U.S.C. § 1183.
17U.S. Courts, Chapter 13- Bankruptcy Basics https:// www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-13-bankruptcy-basics.
18Id.
19U.S. Department of Justice Executive Office for United States Trustees, Handbook for Chapter 13 Standing Trustees, 7, 13 https://www.justice.gov/ ust/page/file/1442271/dl.
20Id.
21U.S. Courts, Chapter 12- Bankruptcy Basics, https:// www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-12-bankruptcy-basics.
22See Harris v. Viegelahn, 575 U.S. 510 (2015).
23Id. at 514.
24Id. at 521.
25Matter of Buffets, L.L.C., 979 F.3d 366, 370 (5th Cir. 2020), abrogated by Siegel v. Fitzgerald, 596 U.S. 464 (2022).
26In re Buffets, LLC, 597 B.R. 588 (Bankr. W.D. Tex. 2019), rev’d and remanded sub nom. Matter of Buffets, L.L.C., 979 F.3d 366 (5th Cir. 2020).
27Matter of Buffets, L.L.C., 979 F.3d 366 (5th Cir. 2020).
28Siegel, 596 U.S. at 473.
29Id. (quoting U. S. Const., Art. I, § 8, cl. 4).
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The Media and America’s Fascination with Crime
By Mark J. Phillips and Aryn Z. Phillips
Americans are addicted to violent crime. Not to committing it, particularly— notwithstanding a history of nineteenthcentury gunslingers, twentieth-century gangsters, and the wide prevalence of handguns, which outnumber citizens. Rather, Americans love to talk about crime, to read about it, relive it, and revel in it.
In some respects, Americans, like citizens of all ages and nations, are simply drawn to bloodshed by their nature. When Vespasian constructed the Coliseum in Imperial Rome nearly two thousand years ago, an arena intended purposely for the staging of blood sports, he built a structure designed for as many as 50,000 spectators. The Coliseum hosted gladiatorial contests of warrior pairs, even entire groups of warriors. Residents of Rome came to witness the slaughter of armed combatants, unarmed prisoners, wild animals of every stripe and feature, even elaborately staged executions of prisoners killed in various gruesome but mythologically authentic ways, such as being mauled by beasts or burned to death. On occasion, the exits were stopped up, and the Coliseum was flooded for naval battles.1
Over time, gladiatorial exhibitions have given way to medieval jousts, to public burnings at the stake, to stocks and pillories, and to the guillotine. Between 1792 and
1794, thousands of Frenchmen went to their public deaths at the Place de la Revolution in Paris, now the Place de la Concorde, victims of a revolution gone mad. Dangerous as Paris was in those years, the Place overflowed with spectators. Vendors sold programs listing the daily victims; women sat knitting, and children variously cried and cheered.2
While it is increasingly evident that the modern fascination for violent crime in American culture is slaked by the media, that influence itself is not modern. Sensationalized stories of crime in print date back at least to the eighteenth century with England’s Newgate Calendar. Subtitled the Malefactors’ Bloody Register, it was a monthly collection of executions at London’s Newgate Prison, complete with lurid and highly inaccurate descriptions of the criminals and their murderous acts, illustrated with pen-and-ink drawings of stabbings, shootings, and poisonings. By 1774, the Calendar was published in bound volumes and commonly found in English homes for at least the next century.3
The Calendar crossed the Atlantic as the American Bloody Register, which collected and published accounts of America’s misdeeds until the 1860s, when such tales were picked up and published in novel form by brothers Erastus and Erwin Beadle. These were sold for ten cents and became known, of course, as “dime
novels,” instantly popular and avidly consumed by young, working-class readers, reflecting a boom in literacy following the Civil War. Scandalous and excessive, the Beadles’ dime novels and similar outpourings by numerous competitors became a mainstay of American literature and culture for the second half of the nineteenth century. By 1900, advances in printing and cheap pulp paper, coupled with increased demand for these stories, caused the novels to evolve into serialized magazines, beginning in 1896 with Frank Munsey’s Argosy, followed by Street & Smith’s Popular Magazine in 1903.4 As the pulps transitioned to fiction, reporting of true crime was picked up by the nation’s newspapers.
In 1880 there were 850 newspapers published in America with a total daily newspaper circulation of 3,100,00. By 1900, the number of newspapers had increased to 1,967 and circulation to 15,100,000. And by 1910, the number of newspapers had increased to 2,200 and circulation to 22,400,000. Over a span of only thirty years, circulation had increased seven-fold.5
Much of that explosive growth in newspaper readership can be traced to the sensational “yellow journalism” of ambitious publishers such as William Randolph Hearst and Joseph Pulitzer. In 1887, Hearst, the Harvard-educated son of wealthy mining
magnate and U.S. senator George Hearst, took over his father’s San Francisco Examiner. Hiring the most-talented writers of the age, and showing little regard for truth or balance in reporting, he built an empire of newspapers across the country that informed, shaped, influenced, and entertained the public.
Pulitzer, by contrast, was an impoverished Hungarian immigrant, who through hard work and a flair for reporting turned the failing New York World of the 1880s into the spokesperson for the working-class readers in the East. The World was filled with advertising, illustrations, and entertaining news, and was soon in a circulation war with Hearst’s New York Journal
And newspaper circulation required grist for the mill. Sales depended upon lurid headlines and articles that caught the reader’s eye and caused him or her to reach into a pocket or purse for change. As any watcher of nightly news knows, local violent crime and attendant trials lead the newscast, followed only distantly by sports, traffic, weather, and the political events of a wide world forever teetering on the edge of famine, war, and mutually assured destruction. But real trials bring these dramas to greater life, and Americans revel in them when they contain additional intrigue or a twist: love, money, celebrity, sex, race, betrayal, or scandal. Each trial becomes theatre, with the courtroom as stage, the participants as actors, and enraptured Americans as audience.
At the 1906 trial of Harry Thaw for the murder of New York architect and socialite Stanford White, news reporters swamped the courtroom and crowds of spectators daily impeded access to the courthouse. The twentieth century was only six years old, and no one could have predicted the coming media frenzy that would surround the trial of Roscoe “Fatty” Arbuckle, the kidnapping of the Lindbergh baby, the Tate/LaBianca killings, or the murders of Nicole Brown Simpson and Ron Goldman. And yet the trial of Harry K. Thaw for White’s murder was promptly and confidently pronounced in newspapers to be the trial of the century.
By the end of the 1913 trial in Atlanta of Jewish factory manager Leo Frank for the murder of thirteen-year-old factory worker Mary Phagan, the judge, attorneys and witnesses knew he was likely not guilty. But by then the local newspapers, the Constitution, Hearst’s Georgian, and particularly the populist Jeffersonian, had whipped the populace into a frenzy of antisemitism. By the time the jury began deliberations on the afternoon of August 25th, a crowd of 5,000 prowled the
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streets outside. Calls to lynch Frank could be heard through the open windows. In the air of hostility against the defendant, Judge Leonard Roan and the attorneys agreed that Frank and his lead attorneys should not be present when the verdict was read, as their safety could not be assured. The jurors took just four hours to come back with a verdict of guilty. The press condemnation of Frank continued unrelenting, and when his sentence was commuted by Governor Slaton two years later, a posse of prominent Atlanta citizens broke Frank out of Milledgeville prison and lynched him in nearby Marietta, one of the few white men ever lynched in America.
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Reporters will swamp the proceedings at a high profile trial. At the 1925 trial of John Scopes for teaching evolution in a Tennessee school, proceedings had to be moved outdoors because the sheer number of those attending threatened the actual physical stability of the courthouse. Thereafter, five thousand observers watched from makeshift bleachers, and partisan banners hung in full view of the jurors.6 Conviction unsurprisingly followed in an environment of a Bible revival meeting. At the 1934 trial of Bruno Hauptmann for the kidnapping and murder of Charles Lindbergh’s baby, the reporters numbered 350, and the world came to witness what H.L. Mencken called “the greatest story since the Resurrection.” And in the 1954 trial of Sam Sheppard for the murder of his wife, Marilyn, reporters inundated the trial, occupying every inch of the courtroom, sitting mere feet from the jury, listening in on the private conversations of lawyers, and handling the evidence. And in 1992, when news reports hit the Los Angeles streets of the acquittal of four police officers on state charges for the beating of Rodney King, so did protestors. In the subsequent riots fifty-three people died, and more than three thousand buildings were torched, assuring the officers’ conviction in their subsequent federal trial.7 The result of unrestrained media coverage is a justice system trajectory pushed from its necessary arc of fairness.
In 1995, O.J. Simpson was tried for the murder of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman, and the trial was carried live from gavel to gavel. The live broadcast of criminal trials was then, and remains today, controversial. Judges, lawyers, and witnesses cannot resist performing for a television audience, and the interests of the criminal defendant suffer. The number of objections by attorneys multiply exponentially as they perform for the cameras—in the Simpson trial an astonishing 16,000 times— and juries grow weary as trials lengthen.
Measured against these disadvantages are the rights of citizens to witness a free and open courtroom dispensing justice in the manner the law requires.
On October 2, 1995, the twelve members of the O.J. Simpson jury retired to consider the evidence, but in only four hours they notified Judge Lance Ito that they had reached a verdict. The entire country came to a halt to hear the verdict the next morning. Ninetyone percent of all televisions in operation in America were turned to the coverage, only the first U.S. moon landing and the funeral of John F. Kennedy attracting a larger share of the audience. The LAPD went to full alert, arrayed against a repeat of the Rodney
King riots. President Clinton was briefed on national security measures, then left the Oval Office to watch with staffers, one of an estimated 140,000,000 Americans tuned in.
Larry King, host of CNN’s Larry King Live, told his viewers “If we had God booked, and O.J. was available, we’d move God.”
Of course the Founding Fathers understood the necessity of a free press, and the First Amendment assures Americans among other rights the presence of independent inquiry into the operation of the government and its component parts. Without a curious press free of influence, courts cannot be relied upon to operate in a fair and even-handed manner. Thus, the
public press is essential in keeping the judicial branch open and honest. Our forefathers had experience with dependent courts of an autocratic government and knew that democracy would not thrive in the vacuum of a society without a public press.
But an unrestrained press driven to sell newspapers and radio and television ads will inevitably intrude on courts not equipped to insulate themselves from excess. Unrestrained, the press will threaten and cajole investigators, influence the courtroom behavior and tactics of lawyers and judges, and frighten jurors. Unrestrained, the press will so inflame a community that the environment becomes toxic, inhospitable to a fair judicial process.
Mark J. Phillips is a shareholder at the law offices of Lewitt Hackman in Encino, California. Aryn Z. Phillips is an Assistant Professor at the University of Illinois. They are the coauthors of Trials of the Century (Prometheus, 2016), from which this article is excerpted.
ENDNOTES
1Keith Hopkins, The Colosseum: Emblem of Rome, http://www.bbc.co.uk/history/ancient/romans/colosseum_01.shtml (for coliseum capacity)(accessed April 6, 2016); Water Battles at the Colosseum, http://www. tribunesandtriumphs.org/colosseum/water-battles-atthe-colosseum.htm (for naval battles)(accessed April 6, 2016); Wild Animals at the Colosseum, http://www.tribunesandtriumphs.org/colosseum/wild-animals-at-thecolosseum.htm (for animals)(accessed April 6, 2016). 2Marisa Linton, “The Terror in the French Revolution” (PDF). Kingston University. (for the number of victims); http://www.theguillotine.info/articles/reignofterror.php, (for vendors selling programs and spectators bringing children) (accessed April 6, 2016)
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3Facts About the Newgate Calendar, http://www. bl.uk/learning/histcitizen/21cc/crime/media1/calendar1/facts1/facts.html (for the Newgate Calendar) (accessed April 6, 2016); Catherine Curzon, The Newgate Calendar, or, Malefactor’s Bloody Register, http:// englishhistoryauthors.blogspot.com/2014/09/thenewgate-calendar-or-malefactors.html (for Malefactors’ Bloody Register)(accessed April 6, 2016).
4Paper for the People, Dime Novels and Early Mass Market Publishing, https://exhibits.library.villanova.edu/dime-novels/the-basics (for Beadle, dime novels)(accessed April 6, 2016); Dime Novel, https:// en.wikipedia.org/wiki/Dime_novel(accessed April 6, 2016); David E. Sumner, The Magazine Century: American Magazines Since 1900, p. 23. Peter Lang Publishing, Inc. (for Argosy magazine)(accessed April 6, 2016).
5Newspaper Circulation Figures 1880 – 1910, Coursehero.com, https://www.coursehero.com/ file/p5rnbr/Newspaper-Circulation-Figures1880-1910-1880-850-pubs-circ-31-mill1900-1967/ (accessed April 6, 2016).
6Douglas O. Linder, State v. John Scopes (“The Monkey Trial”), http://law2.umkc.edu/faculty/projects/ ftrials/scopes/evolut.htm (accessed April 6, 2016)
7Jim Crogan, The LA 53, http://www.lafire.com/ famous_fires/1992-0429_LA-Riots/LAWEEKLY-2002-0426/2002-0426_laweekly_The LA 53_Crogan.htm (for number of deaths)(accessed April 6, 2016); Robert Reinhold, “Riots in Los Angeles: The Overview; Cleanup Begins in Los Angeles; Troops Enforce Surreal Calm” New York Times, May 3, 1992 (for buildings burned).
When Spit Hits the Fan in Court Proceedings!1
By Simon Azar-Farr2
Some clients lie, or may want to lie, for all kinds of reasons. Lying, of course, is not limited to clients. Some politicians lie; some law enforcement officers lie; some prosecutors lie; some lawyers lie; some doctors lie; and on and on. There are probably as many reasons for lying as there are different kinds of liars: the notorious liar, the consummate liar, the incorrigible liar, the inveterate liar, the congenital liar, the chronic liar, the pathological liar, the unconscionable liar, the glib liar, the egregious liar.
Of the myriad personalities of the last 600 years, I doubt anyone understood lying more than Shakespeare. Sigmund Freud came very close. But Shakespeare’s characters are the best of the classic liars. Think of Lady Macbeth, Falstaff, Iago, or Tamora and Aaron.
Lady Macbeth for example instructs us on how to attempt to deceive: “To beguile the time / look like the time.”3 She also tells us “look like th’ innocent flower / but be the serpent under’t.”4 Although Lady Macbeth lies left and right and ultimately enables the murder of King Duncan, she also deftly claims the mantle of victimhood. So it is sometimes nowadays.
Unlike tragic literary heroes with grand ambitions, one practicing law before a court or an administrative tribunal simply cannot engage in lying or deception or permit his client to do so because some end justifies it. There are rules against suborning perjury or deception that a lawyer must follow or risk reprimand, censure, or, in the most severe case, the loss of one’s law license. Discussing these rules in the narrow context of court proceedings is the topic of this article. Primarily by posing three distinct scenarios (we can call them the before, the during, and the after scenarios), my aim is to guide you as to what steps to take when your client wants to lie or has lied to a court or an administrative tribunal.
Issue: What are a lawyer’s ethical obligations in the following scenarios?
1. A client tells his attorney that he intends to lie on the stand. The attorney advises him not to, but client insists on doing so. May the attorney call him to the stand to testify? What if he insists that he wants to testify?
2. An attorney discovers after a case has concluded that the client lied under oath before the court. What is the attorney’s obligation to the court and to the opposing counsel? What are the attorney’s continuing obligations to the client?
3. A client, while testifying in court, lies under oath and the attorney immediately recognizes it. What should the attorney do? What are the attorney’s obligations to the court, to opposing counsel, and to the client?
The brief and broad answer to the above scenarios is that while a lawyer generally must preserve confidential client information, he has a corresponding and a superseding obligation to the court to provide truthful information. Accordingly, a lawyer may not make use of or elicit false testimony. He should attempt to persuade his client not to perjure himself. If client insists on perjuring himself, the lawyer cannot call him to testify regarding that matter. If the perjury has already happened, the lawyer should urge his client to withdraw the false information and, if that is unsuccessful, the lawyer is obliged to disclose the truth to the court himself.
Competing ethics principles
A lawyer has several competing ethical obligations in the scenarios I have listed. First, a lawyer has sacred duties of confidentiality and loyalty to the client. The Texas Disciplinary Rules of Professional Conduct provide that:
(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e) and (f), a lawyer shall not knowingly:
(1) Reveal confidential information of a client or a former client to:
(i) a person that the client has instructed is not to receive the information; or
(ii) anyone else, other than the client, the client’s representatives, or the members, associates, or employees of the lawyer’s law firm.
(2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultation.
(3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.
(4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation.5
Further, a lawyer owes a duty of loyalty toward a client,6 and must abide by the client’s decisions “concerning the objectives and general methods of representation,” and in a criminal matter, as to “whether the client will testify.”7
But these duties of confidentiality and loyalty and consultation do not allow the lawyer to act as a party to falsification of evidence or other fraud.8 Candor toward the tribunal and protection of a trial as a truth-seeking mechanism in our system of justice outweigh even the profound interests of loyalty to one’s client and protection of privileged disclosures.9
The U.S. Supreme Court has endorsed this balancing of the interests at play in a 1986 criminal case. The defendant, accused of shooting his drug dealer, consistently told his attorney that he believed the victim had held a gun but that he had not actually seen the gun. Shortly before trial, however, he changed his story, telling the attorney, “If I don’t say I saw a gun, I’m dead.”10 His defense team told him at the time:
[We] could not allow him to [testify falsely] because that would be perjury, and as officers of the court we would be suborning perjury if we allowed him to do it; . . . I advised him that if he did do that it would be my duty to advise the Court of what he was doing and that I felt he was committing perjury; also, that I probably would be allowed to attempt to impeach that particular testimony.11
The defendant, following his attorney’s advice, did not testify that he had seen a gun in the victim’s hand. After the defendant was convicted, he petitioned for a writ of habeas corpus, arguing “that he had been denied effective assistance of counsel and of his right to present a defense by [the attorney’s] refusal to allow him to testify as he had proposed.”12
The Supreme Court disagreed.
In Strickland, we recognized counsel’s duty of loyalty and his ‘overarching duty to advocate the defendant’s cause.’ Plainly, that duty is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth. Although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law. This principle has consistently been recognized in most unequivocal terms by expositors of the norms of professional conduct since the first Canons of Professional Ethics were adopted by the American Bar Association in 1908.13
The Supreme Court noted that the Model Rules (on which the Texas Rules are based) “do not merely authorize disclosure by counsel of client perjury; they require such disclosure.”14 It went on to say that “the legal profession has accepted that an attorney’s ethical duty to advance the
interests of his client is limited by an equally solemn duty to comply with the law and standards of professional conduct” and “that perjury is as much a crime as tampering with witnesses or jurors by way of promises and threats, and undermines the administration of justice.”15
Therefore, for the lawyer in that case to set the record straight carried no constitutional infirmities. “For defense counsel to take steps to persuade a criminal defendant to testify truthfully, or to withdraw, deprives the defendant of neither his right to counsel nor the right to testify truthfully.”16
In keeping with these principles, the Texas Rules of Disciplinary Conduct dictate:
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;
… or
(5) offer or use evidence that the lawyer knows to be false.
(b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.
(c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible.17
Other parts of the rules echo these requirements.18 Let’s consider the three scenarios I listed earlier.
Scenario 1: Client tells his lawyer he intends to lie on the stand
If a lawyer knows that a client intends to perjure himself, he must first try to talk him out of it.19 He should also warn the client of the further corrective action the lawyer will take if the client does in fact commit perjury.20 If the client insists on testifying falsely, the lawyer can and in fact is obligated to refuse to offer the perjured testimony, though she may still put the client on the stand to testify as to other matters the lawyer does not believe will be perjured.21 The lawyer may also ask to withdraw from the case—though generally he may not tell the tribunal why he wants to withdraw.22
Scenario 2: The lawyer discovers later that the client lied during direct examination
If the lawyer discovers after the fact that his client perjured himself during the testimony the lawyer elicited, similar duties apply.23 The lawyer must first try to convince the client to correct the record himself, even though this may open the client to adverse consequences.24 Second, if the client fails to correct the record, the lawyer must disclose the truth to the court.25 “[A]n attorney’s revelation of his client’s perjury to the court is a professionally responsible and acceptable response to the conduct of a client who has actually given perjured testimony.”26
Conversely, a lawyer who assists the client in concealing the truth through false testimony can face disbarment.27 As made clear in paragraph (c) above, the lawyer’s duty to set the record straight “continues as long as there is a reasonable possibility of taking corrective legal actions before a tribunal.”28
The controlling rules of ethics do not explicitly address the question of what to do in the moment the false testimony unexpectedly appears during direct examination. Because of the Texas rules requiring that a lawyer first consult with a client and give the client the opportunity to retract the false statement, I believe it would be best to ask the court for a short recess so the lawyer could speak to the client and urge him to testify truthfully. However, it is incumbent upon the lawyer to not let the false testimony stand regardless of whether that conference occurs.
Caveats
There are a few important caveats to these principles. First, the lawyer must know the information is false. If he simply disbelieves the information but does not have proof that the information is false, the disclosure obligations I cited earlier do not apply.29
Likewise, while a lawyer does not have to introduce evidence he thinks is “untrustworthy,” this “discretion should be exercised cautiously … in order not to impair the legitimate interests of the client. Where a client wishes to have such suspect evidence introduced, generally the lawyer should do so and allow the finder of fact to assess its probative value.”30
Another caveat to bear in mind is that it must be reasonably clear that the client will actually go forward with the false testimony. If the client just threatens to lie at some time in the future, it is necessary to wait until the threat becomes more concrete before making actual disclosures.31
Finally, at least under the Texas rules, the lawyer is only obligated not to elicit false testimony or make use of it during direct examination. The lawyer is not obligated to correct the record if someone else elicits the false testimony. For instance, if the client lies under cross examination conducted by opposing counsel, the lawyer does not need to advise the court of this fact. However, the lawyer cannot make use of the false testimony in redirect or in briefs or other statements to the court, he should still advise the client to correct the record, and the lawyer is permitted to move to withdraw.32
In this same vein, if the opposing counsel (or an officer of the court or another third party) has given false information to the court about a material issue, the lawyer is not compelled to correct the record so long as neither the lawyer nor his client contributed to the misinformation.33 But again, the lawyer may not make use of the false information and, if he or his client is asked directly to confirm it, he must either set the record straight or ask to be excused from answering.34
• Orthopedic Surgery • Spine Surgery • Medical Malpractice • Personal Injury • Sports Medicine • Independent Medical Examinations (214) 414-9447 | www.orthoexpertservices.com neal@orthoexpertservices.com Scenario 3: A lawyer immediately recognizes that his client lied during direct examination
This came up in a criminal case in which the court asked the prosecution about the defendant’s prior criminal record, and the
prosecutor erroneously said the defendant had none. When the court followed up with defense counsel and the defendant, they neither confirmed nor denied the prosecution’s statement. The ethics panel determined that this was the correct response, and that the defense attorney might in fact have violated his professional obligations by divulging the true facts—though he would also have committed an ethical violation by confirming the prosecutor’s statement.35
To be a lawyer is to be a part of a noble profession. The practice of law requires a lawyer to balance his responsibilities to his clients, the legal system in which he operates and his own personal values and duties. No rules or comments “exhaust the moral and ethical considerations that should guide a lawyer, for no worthwhile human activity can be completely defined by legal rules.”36 However, when it comes to your own client’s candor before a court, I believe you may be able to sleep in peace at night if you are able to advise your client “to thine own self be
Dr. Neal Small is a board certified orthopedic surgeon with over 30 years of clinical practice. Dr. Small has performed over 15,000 orthopedic procedures. He has extensive nationwide experience as an orthopedic expert, having prepared over 1,000 reports pertaining to Standards of Care, Causation, Usual and Customary Medical and/or Surgical Treatment. He has performed hundreds of Independent Medical Exams and served as an expert witness in depositions and at trial. Dr. Small is experienced in all aspects of orthopedic care including trauma, sports medicine, arthroscopic surgery, total joint replacement and spine.
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true/and it must follow, as the night the day/ thou canst not then be false to any man.”37
Simon Azar-Farr has been practicing law for more than thirty years. He worked at the U.S. Department of Justice for two years before entering private practice. He is a graduate of the University of Utah S.J. Quinney School of Law where he served as editorin-chief of the Law Journal. His practice has focused on complex immigration matters and defense work in federal criminal cases. He has litigated more than 150 federal lawsuits against the DHS or other federal agencies and more than 20 of these cases have led to precedent decisions. His articles have been published widely in national journals covering various aspects of immigration and federal criminal law. The articles can be found on his firm’s website, www.simonazarfarr.com. He is an avid hiker, photographer, and backcountry skier.
ENDNOTES
1This paper was delivered as part of a lecture at a University of Texas School of Law CLE program in October 2024.
2All copyrights reserved.
3William Shakespeare, Macbeth, act I, sc. 5, l.64-65 (The Yale Shakespeare, 1918, rev. ed. 1954).
4Id., l.66-68.
stexas.com/resources/rules/texas-disciplinary-rules-ofprofessional-conduct/candor-toward-the-tribunal/.
6Comment 1 to Tex. Disciplinary R. Prof. Conduct 1.06.
7Tex. Disciplinary R. Prof. Conduct 1.02(a)(1), (3).
8Tex. Disciplinary R. Prof. Conduct 1.02(c).
9Comment 10 to Tex. Disciplinary R. Prof. Conduct 1.05 (noting that “Rule 503(d)(1), Texas Rules of Civil Evidence (Tex. R. Civ. Evid.), and Rule 503(d) (1), Texas Rules of Criminal Evidence (Tex. R. Crim. Evid.), indicate the underlying public policy of furnishing no protection to client information where the client seeks or uses the services of the lawyer to aid in the commission of a crime or fraud.”); Comment 11 to Tex. Disciplinary R. Prof. Conduct 1.05 (“A lawyer’s duty under Rule 3.03(a) not to use false or fabricated evidence is a special instance of the duty prescribed in Rule 1.02(c) to avoid assisting a client in criminal or fraudulent conduct, and sub-paragraph (c)(4) permits revealing information necessary to comply with Rule 3.03(a) or (b). The same is true of compliance with Rule 4.01.”).
10Nix v. Whiteside, 475 U.S. 157, 160-61 (1986)
11Id. at 161.
12Id. at 162.
13Id. at 166 (internal citation omitted).
14Id. at 168
15Id. at 169.
16Id. at 173-74; see also United States v. Garza, 429 F.3d 165, 172 n.4 (5th Cir. 2005)(finding that a client had no right to testify untruthfully); United States v. Thompson, 130 F.3d 676, 686-87 (5th Cir. 1997) (stating that a “defense lawyer already had an ethical obligation to the court not to elicit” false testimony).
17Tex. Disciplinary R. Prof. Conduct 3.03.
18Tex. Disciplinary R. Prof. Conduct 1.05(c)(4),
(7), (8) (allowing a lawyer to disclose confidential information, among other situations, “When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rules of Professional Conduct, or other law,” or “When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act” or “To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.”); Tex. Disciplinary R. Prof. Conduct 1.05(f) (requiring an attorney to “reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b).”); Rule 4.01 (“In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client.”).
19Comment 5 to Tex. Disciplinary R. Prof. Conduct 3.03.
20Comment 6 to Tex. Disciplinary R. Prof. Conduct 3.03.
21Comments 5-6 to Tex. Disciplinary R. Prof. Conduct 3.03.
22Comment 6 to Tex. Disciplinary R. Prof. Conduct 3.03.
23Comment 12 to Tex. Disciplinary R. Prof. Conduct 1.05 (if the lawyer was “innocently involved in past conduct by the client that was criminal or fraudulent . . . the lawyer has a legitimate interest both in rectifying the consequences of such conduct and in avoiding charges that the lawyer’s participation was culpable. Sub-paragraph (c)(6) and (8) give the lawyer professional
5Tex. Disciplinary R. Prof. Conduct, Rule 1.05(b) (Texas Center for Legal Ethics, 2024) from legalethicP: 210-469-4611 F: 210-404-2402 info@rbm-inc.com www.rbm-inc.com
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discretion to reveal both unprivileged and privileged information in order to serve those interests.”).
24Tex. Disciplinary R. Prof. Conduct 1.02(e) (“When a lawyer has confidential information clearly establishing that the lawyer’s client has committed a criminal or fraudulent act in the commission of which the lawyer’s services have been used, the lawyer shall make reasonable efforts under the circumstances to persuade the client to take corrective action.”); Comment 4 to Tex. Disciplinary R. Prof. Conduct 4.01 (“When a lawyer discovers that a client has committed a criminal or fraudulent act in the course of which the lawyer’s services have been used, or that the client is committing or intends to commit any criminal or fraudulent act, other of these Rules require the lawyer to urge the client to take appropriate action. See Tex. Disciplinary R. Prof. Conduct 1.02(d), (e), (f); Tex. Disciplinary R. Prof. Conduct 3.03(b). Since the disclosures called for by paragraph (b) of this Rule will be “necessary” only if the lawyer’s attempts to counsel his client not to commit the crime or fraud are unsuccessful, a lawyer is not authorized to make them without having first undertaken those other remedial actions. See also Tex. Disciplinary R. Prof. Conduct 1.05.”).
25Tex. Disciplinary R. Prof. Conduct 3.03(a)(2), (b); see also Tex. Disciplinary R. Prof. Conduct 4.01(b) (“In the course of representing a client a lawyer shall not knowingly . . . fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client.”); Tex. Disciplinary R. Prof. Conduct 1.05(c)(4) and (8), 1.05(f)(stating a lawyer may disclose a client’s confidential information “When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplin-
ary Rules of Professional Conduct, or other law,” and “To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used,” but saying the lawyer “shall reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b)”) (emphasis added).
26Nix v. Whiteside, 475 U.S. at 170.
27In re Ray, 951 F.3d 650, 653 (5th Cir. 2020) (upholding a district court’s disbarment of an attorney who assisted his client in “engag[ing] in fraud, misrepresentation, and misconduct in his presentations, verbally and in writing, to the court in pretrial matters, during the trial, and in his presentations to the Fifth Circuit in support of his appeal from the district court’s dismissal of his claims.”)(citation modified).
28Comment 14 to Tex. Disciplinary R. Prof. Conduct 3.03.
29Comment 15 to Tex. Disciplinary R. Prof. Conduct 3.03; see also Comment 2 to Tex. Disciplinary R. Prof. Conduct 4.01 (“A lawyer violates paragraph (a) of this Rule either by making a false statement of law or material fact or by incorporating or affirming such a statement made by another person. Such statements will violate this Rule, however, only if the lawyer knows they are false and intends thereby to mislead.”).
30Id.; see also McCoy v. Louisiana, 584 U.S. 414, 425 (2018) (finding that an attorney could not admit guilt over his client’s objection when the attorney “harbored no doubt that [the client] believed what he was saying,” but the attorney “simply disbelieved [the client’s] account in view of the prosecution’s evidence,” and when the attorney’s “express motivation for conceding guilt was not to avoid suborning perjury, but to try to build credibility with the jury, and thus obtain
a sentence lesser than death.”).
31Tex. Comm. on Professional Ethics, Op. 482 (1994) (finding, when a client “suggested [in a taped interview] that his recollection of facts might change in the absence of some type of ‘financial reward,’” that “[i]f the client perjures himself in open court, the firm may reveal the contents of the transcript to the court in order to avoid assisting the client’s commission of a criminal or fraudulent act. Until the ex-employee definitely manifests an intention to commit perjury, however, the firm cannot disclose the confidential information.”).
32Comment 13 to Tex. Disciplinary R. Prof. Conduct 3.03; see also Tex. Comm. on Professional Ethics, Op. 692 (2021) (“Under the Texas Disciplinary Rules of Professional Conduct, a lawyer does not have a duty to correct intentionally false statements made by the client while being cross-examined by the opposing party’s counsel during a deposition. Nevertheless, the lawyer should urge the client to correct the false statements, including by explaining the potential civil and criminal ramifications of false testimony. If the client refuses, the lawyer may (but is not required to) withdraw from the client representation if permitted by the Rules. If the lawyer does not withdraw, the lawyer is not required to disclose the true facts but may not use the false deposition testimony in any way to advance the client’s case.”).
33Tex. Comm. on Professional Ethics, Op. 504 (1994).
34Id.; see also Comment 13 to Tex. Disciplinary R. Prof. Conduct 3.03.
35Tex. Comm. on Professional Ethics, Op. 504 (1994). 36Tex. Disciplinary R. Prof. Conduct Preamble ¶ 11. 37William Shakespeare, Hamlet, Act 1, sc. 3, l. 78-80 (The Yale Shakespeare, 1917, rev. ed. 1966).
Joseph CASSEB
Don PHILBIN Wade SHELTON Hon. John SPECIA, Jr. Hon. Phylis SPEEDLIN
Scott BAGE John BOYCE Roberto RIOS
Hon. Catherine STONE
Hon. Karen POZZA
Kevin MICKITS
Krishna REDDY Aric GARZA
Dan POZZA
Recent Fourth Court Cases
By Justice Adrian A. Spears II
Since joining the Fourth Court of Appeals in January 2025, I have had the unique privilege of observing and participating in the inner workings of the court and reviewing appeals involving a broad range of legal issues. This experience has deepened my appreciation for the crucial role of the judiciary to ensure the fair, impartial, and consistent application of the law in a timely manner. I am honored to contribute to the court’s important work and grateful for the opportunity. The following three cases illustrate the variety of matters that have recently come before the Fourth Court of Appeals.
In Val Verde Hospital District v. Salazar, 708 S.W.3d 757 (Tex. App.—San Antonio 2025, no pet.), Val Verde Hospital appealed from the trial court’s interlocutory order denying its plea to the jurisdiction pursuant to the Texas Tort Claims Act (“TTCA”). In the underlying case, Salazar brought a medical malpractice lawsuit and alleged that while a technician had performed an electrocardiogram on her, he had inappropriately touched her breasts and stared at them. On appeal, the hospital argued the trial court erred in denying its plea to the jurisdiction because there was no negligent use of any tangible personal property that caused Salazar’s injuries, as required to waive the hospital’s immunity under the TTCA. In reversing the trial court’s order, the Fourth Court emphasized that (1) Salazar had not alleged facts to show that her injury was caused by the EKG machine or the electrodes; and (2) it was undisputed that the technician’s hands, actions, and verbal instructions while using the EKG and electrodes, negligently or otherwise, were the cause of Salazar’s injury. Thus, the facts pled by Salazar, taken as true, showed only that the use of the EKG machine or electrodes merely furnished the condition making it possible for the technician to have the access and the ability to give verbal instructions and inappropriately touch Salazar’s breasts. The Fourth Court thus held that such use of the EKG machine was not sufficient to waive immunity under the TTCA.
In Ex parte Contreras, 717 S.W.3d 27 (Tex. App.—San Antonio 2025, no pet.), Contreras’s first trial ended with the trial court granting his motion for mistrial. He then filed an application for writ of habeas corpus, alleging that double jeopardy barred further prosecution. After an evidentiary hearing, the trial court denied his requested relief and issued findings of fact. Contreras appealed. As a general rule, a defendant moving for mistrial prevents him from raising double jeopardy. However, the Supreme Court in Oregon v. Kennedy, 456 U.S. 667, 679 (1982), provided for a limited exception when “the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” Contreras argued that the prosecution team had provoked a mistrial and intentionally failed to disclose exculpatory evidence with the intent to avoid the possibility of an acquittal in violation of the United States and Texas Constitutions. In Texas, when a defendant moves for a mistrial and then claims retrial is barred by double jeopardy, “the habeas court, and all subsequent reviewing courts, must determine whether: (1) the prosecutor engaged in conduct to goad or provoke the defense into requesting a mistrial; or (2) the prosecutor deliberately engaged in the conduct at issue with the intent to avoid an acquittal.” Ex parte Martinez, 560 S.W.3d 681, 697 (Tex. App.—San Antonio 2018, pet. ref’d). Because subjective intent “may often be unknowable,” the Texas Court of Criminal Appeals has “set out a list of nonexclusive objective factors to assist trial and reviewing courts in assessing the prosecutor’s state of mind.” Ex parte Wheeler, 203 S.W.3d 317, 323 (Tex. Crim. App. 2006). These factors include: (1) Was the misconduct a reaction to abort a trial that was “going badly for the State?” In other words, at the time the prosecutor acted, did it reasonably appear that the defendant would likely obtain an acquittal? (2) Was the misconduct repeated despite admonitions from the trial court? (3) Did the prosecutor provide a reasonable, good faith explanation for the conduct? (4) Was the conduct clearly erroneous? (5) Was there
a legally or factually plausible basis for the conduct, despite its ultimate impropriety; and (6) Were the prosecutor’s actions leading up to the mistrial consistent with inadvertence, lack of judgment, or negligence, or were they consistent with intentional misconduct? In applying these factors, the Fourth Court noted that it must review the evidence from the habeas evidentiary hearing in the light most favorable to the trial court’s ruling and afford great deference to the trial court’s findings and conclusions, especially when they involve determinations of credibility and demeanor. When viewed in the light most favorable to the trial court’s ruling, the evidence supported the trial court’s findings that (1) the defense had not been goaded or provoked into requesting a mistrial, and (2) the prosecution had not deliberately engaged in the conduct at issue with the intent to avoid an acquittal. Thus, the Fourth Court held the trial court did not abuse its discretion in determining that double jeopardy did not bar a subsequent prosecution of Contreras for murder.
In In re Bexar Medina Atascosa Counties Water Control and Improvement Dist. No. 1, No. 04-24-00538-CV, 2025 WL 466069 (Tex. App.—San Antonio Feb. 12, 2025, orig. proceeding), the San Antonio Water System (SAWS) filed a declaratory judgment action against the District, seeking a declaration that a water supply agreement between the parties was void. In response, the District filed a plea to the jurisdiction and set the plea for hearing. In the interim, SAWS propounded discovery on the District, who then objected to the discovery, claiming it was irrelevant to the preliminary jurisdictional issue. SAWS then moved to continue the plea to the jurisdiction hearing and compel discovery. In oral rulings, the trial court postponed the hearing on the plea to the jurisdiction and compelled limited discovery.
The District challenged the trial court’s rulings by filing a mandamus petition in the Fourth Court. In analyzing the first mandamus prong—abuse of discretion—the Fourth Court focused on the trial court’s obligation to determine its authority to decide a case at
the earliest opportunity and before allowing the litigation to proceed. The Fourth Court recognized that a plea to the jurisdiction may present either a challenge to the sufficiency of the pleadings, or a challenge to the existence of jurisdictional facts. Because the District’s jurisdictional plea challenged only the sufficiency of the pleadings, the Fourth Court concluded the trial court abused its discretion by postponing the jurisdictional hearing for the purpose of allowing discovery unnecessary to the jurisdictional challenge. In analyzing the second mandamus prong—inadequate remedy by appeal—the Fourth Court determined the trial court’s rulings impaired the District’s substantive and procedural rights, including its right to a ruling on its jurisdictional challenge at the earliest opportunity and its right to an accelerated appeal to review the trial court’s jurisdictional ruling. The Fourth Court conditionally granted the District’s mandamus petition and directed the trial court to withdraw its oral rulings postponing the plea to the jurisdiction hearing and compelling discovery.
Justice Adrian A. Spears II has served on the Fourth Court of Appeals since January 1, 2025. He is a third generation Texan, raised in a family of attorneys and judges who instilled in him a deep respect for the law and a strong commitment to public service. Justice Spears earned his undergraduate degree in accounting from Texas Tech University and his law degree from St. Mary’s University School of Law. Prior to his election to the Fourth Court of Appeals, he maintained a distinguished career in private practice, representing individuals, businesses, and governmental entities in complex litigation across both state and federal courts throughout Texas. Justice Spears has been married to his wife for over twenty years. Together, they have three daughters and are active members of their church.
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Western District of Texas Court Summaries
By Soledad Valenciano, Jeffrie Lewis, and Sabrina Salazar
If you are aware of a Western District of Texas order that you believe would be of interest to the local bar and should be summarized in this column, please contact Soledad Valenciano (svalenciano@svtxlaw.com, 210-787-4654) with the style and cause number of the case, and the entry date and docket number of the order.
Bankruptcy; Student Loans; Undue Hardship
Garcia v. U.S. Dep’t of Educ. (In re Garcia), No. 24-51486-MMP (Parker, M. – May 16, 2025).
The Bankruptcy judge denied the parties' joint motion for entry of a consent judgment that would discharge the debtor's $99,112 student loan, concluding that she failed to establish “undue hardship.” Under 11 U.S.C. § 523(a)(8) and Espinosa , the court must independently determine whether the debtor would face an undue hardship if forced to repay the student loan debt. While the Bankruptcy Code does not define “undue hardship,” the Fifth Circuit has adopted the Second Circuit’s Brunner test. The court held that the debtor failed to satisfy the first Brunner prong, as she could maintain a minimal standard of living by modestly adjusting her budget, including her $200 entertainment expense, to accommodate the $56.00 SAVE payment. She likewise failed the second Brunner prong by not demonstrating that her financial condition was likely to persist, particularly given her employability and the impending majority of her dependent granddaughter. The third Brunner prong failed due to a lack of evidence showing good faith efforts to repay the principal on the loans or otherwise attempt to maximize income, minimize expenses, or enforce a child support order. The court acknowledged the debtor’s personal challenges but found them insufficient to overcome the statutory presumption of non-dischargeability under § 523(a)(8). Accordingly, the court deemed the student loan debt nondischargeable, and it denied the joint motion for entry of consent judgment.
Electronically Stored Information; Discovery Sanctions
Hubbard, et al., v. Crow, et al., SA-23-CV00580-FB (Chestney, E. –June 5, 2025)
In this case of alleged human trafficking, the court granted in part and denied in part one defendant’s motion to enforce prior orders and for sanctions. At issue was the production of certain electronically stored information (ESI), including a portion of a podcast that was “cut” at one plaintiff’s instruction after she reviewed a previously live link that was emailed to her that gave her access to the uncut version and the contents of an SD drive that was allegedly now corrupted. FRCP 37(e) provides discovery sanctions for negligent or intentional spoliation of ESI. Because the requesting defendant could not prove the requested ESI was not replaceable or restorable or that the podcast recording was ever in the plaintiff's possession, custody, or control, the court denied the motion without prejudice but directed the plaintiff within one week to produce the SD drive and confirm whether the podcaster still has a copy of the original podcast recording. Although the defendants made recent, substantial document production, the court found that they did so after the entry of multiple court orders, hearings, and plaintiffs’ depositions. Those depositions were later contradicted by declarations, with over a year’s delay, therefore the court directed the defendant to submit its declaration of billing records within one week so the court could determine the appropriate sanction.
Summary Judgment; Federal Communications Act
G&G Closed Cir. Events, LLC v. Kidder Ent. Grp. of SA, LLC, et al., SA-24-CV-203OLG (Garcia, O. – June 24, 2025).
Exclusive licensee of the Canelo v. Yildirim boxing match sued a local bar and its owners under § 605 of the FCA, a strict liability statute, alleging the defendants used unauthorized means to broadcast the boxing match. Licensee moved for summary judgment and while the defendants answered the complaint, they did not respond to the motion. Courts do not grant a default summary judgment simply due to nonresponse. Here, pursuant to FRCP 56(e), the court found that based on the undisputed facts in the complaint and the evidence attached to the summary judgment motion, the defendants violated § 605. The bar owner was found individually liable under a theory of vicarious liability because she admitted she had the right and ability to supervise the activities of the bar and had an obvious and direct financial interest in its activities. The court awarded statutory damages consistent with three times the licensing fee so as to deter future violations. The court awarded additional damages in the same amount for willful violations because the bar owner advertised the boxing match and served drinks during the broadcast, but denied the plaintiff’s request for $50,000 in willful damages. Because courts in the Fifth Circuit routinely apply the lodestar calculation method when faced with statutory fee shifting provisions, the court deemed that method reasonable here where the FCA requires payment of costs and attorney’s fees to the prevailing aggrieved party. The court also awarded postjudgment interest under 28 U.S.C. §1961(a).
Motion to Compel Arbitration
Parrott v. Int’l Bank of Commerce, No. 5:24-cv-1263-DAE (Ezra, D. – Apr. 16, 2025).
The defendant moved to compel arbitration based on an updated provision in its arbitration agreement after the plaintiff filed an Employee Retirement Income Security Act lawsuit. The defendant contended that the plaintiff entered into a valid arbitration agreement. Under the Federal Arbitration Act (“FAA”), arbitration agreements are favored and require enforcement from the court. Courts analyze this question with a two-step inquiry: first, whether there was a valid arbitration agreement; then whether the claim at issue is covered under the agreement. The burden is on the opposing party to demonstrate the agreement was invalid. The plaintiff established the retroactive arbitration agreement was void because the modification was enforced after the plaintiff had separated from the defendant and did not consent to the new provision. The court agreed, finding that a retroactive agreement in which modifications are established after the cause of action accrued is not binding. Accordingly, the court denied the defendant’s motion to compel arbitration due to the lack of an enforceable arbitration agreement between the parties.
Motion for Summary Judgment; U.S. Constitution; Property Owner; Code Violation
SO Apts., LLC v. City of San Antonio, No. SA-23-cv-00992-XR (Rodriguez, X. – May 22, 2025).
The plaintiffs, two San Antonio apartment complexes, argued one of the City of San Antonio’s programs violated their Fourth, Eighth and Fourteenth Amendment rights. The plaintiffs alleged a city ordinance allowed unlawful searches of their apartment complexes, enforced excessive fees, and violated due process. The court rejected the plaintiffs’ claims and granted summary judgment in favor of the City. The plaintiffs offered no evidence to support their first claim—that the ordinance violated the Fourth Amendment by allowing unlawful searches. The court found that “[p]roperty owners have no reasonable expectation of privacy in the exterior of their complexes or common spaces that are open to the public and easily visible to passersby” and that the tenants’ Fourth Amendment right to privacy does not extend to the property owner. Further, the inspections allowed by
the ordinance were not inconsistent with the principles of the Fourth Amendment so as to result in an unreasonable search. Regarding the plaintiffs’ second claim, the court used a two-part test to determine whether the fees violated the Excessive Fines Clause. The first inquiry is whether the fees are imposed for punishment. If so, the second inquiry asks whether the fees are grossly disproportional to the offense. In this case, the defendant’s fees were to offset the administrative cost of the program, and thus not punitive in nature. The plaintiffs argued that the fees were punitive because the defendant overestimated the cost of the program. However, the plaintiffs failed to demonstrate that the alleged overestimate was so excessive as to result in an Eighth Amendment violation. The court declined the plaintiffs’ final claim for three reasons. To begin, the plaintiffs failed to demonstrate how any provision in the ordinance was vague and did not provide an ordinary person with an understanding of what was prohibited. Additionally, the plaintiffs do “not have a property interest in ensuring that their Code violations remain undetected.” Finally, the plaintiffs failed to show the ordinance deprived them of any right to sell their property. Because the plaintiffs were unable to demonstrate a violation of their Fourth, Eighth, or Fourteenth Amendment rights, the court granted the defendant’s summary judgment motion.
Soledad Valenciano practices commercial and real estate litigation with Spivey Valenciano, PLLC.
Jeffrie B. Lewis is Assistant General Counsel with Zachry Group.
Sabrina Salazar practices commercial litigation with Dykema Gossett PLLC.
Clarissa Valenciano is a 3L at Texas Tech University School of Law.
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