Texas Lawyer Blog

Federal judge certifies modified class in East Texas civil rights case

U.S. District Judge T. John Ward on Aug. 29 certified a modified class of plaintiffs who are suing several East Texas public officials, including the Shelby County District Attorney Lynda K. Russell and her former investigator Danny Green, alleging civil rights violations. While the order allows the class to pursue injunctive and declaratory relief against the defendants in Morrow, et al. v. Washington, et al., it does not certify any of those claims for monetary relief. In arriving at his decision, Ward cited the June 20 U.S. Supreme Court decision in Wal-Mart Stores v. Dukes, which rejected a monetary recovery by a diverse class of plaintiffs. Yet Ward allowed the plaintiffs to pursue individual claims against the defendants for monetary damages. Russell and Green are two of the five defendants in Morrow, which was filed in 2008 and has received national publicity. The plaintiffs allege the defendants confiscated property and money from numerous nonwhite motorists as they traveled through the small East Texas city of Tenaha. In their Feb. 17, 2010, third amended complaint, the 10 Morrow plaintiffs allege the defendants' actions violate at least the Fourth Amendment's prohibition against unreasonable searches and seizures and the 14th Amendment's equal protection clause, made actionable by 42 U.S.C. §1983. City of Tenaha Deputy City Marshal Barry Washington, city of Tenaha Mayor George Bowers and Shelby County Precinct 4 Constable Randy Whatley also are named as defendants in Morrow. All of the defendants deny the allegations in answers they have filed responding to the plaintiffs' complaint. As part of his class certification ruling, Ward drew an “adverse inference” in his determination to certify a modified class, based on Russell and Green’s assertion of the Fifth Amendment rights and refusal to answer questions during their depositions. Last year, Ward granted a 90-day discovery stay as to Russell and Green “due to indications that both were subject to pending criminal investigations related to the same facts and circumstances giving rise to this lawsuit” Ward noted in his opinion. Neither has been charged criminally. “The implication is that Russell and Green had information relevant to the issues of class certification but that they withheld the information because they feared it would be incriminating,” Ward wrote in the class certification ruling. John Heath Sr., a Nacogdoches criminal-defense solo who represents Green, did not return a call for comment, nor did Russell. Tim Garrigan, a partner in Nacogdoches’ Stuckey Garrigan & Castetter who is a plaintiffs’ class counsel in the civil rights case, is pleased with the decision, even though it prevents the class from pursuing monetary damages. “From society’s perspective, this kind of case still does a great deal of good, because the court can order the end of an unconstitutional interdiction program,” Garrigan says. Tom Henson, a partner in Tyler’s Ramey & Flock who represents Russell in the civil-rights case, says he is deciding what action to take next in light of Ward's decision. "We are disappointed that he did not deny outright the motion for class certification. But we’re studying the content of the order — it’s rather lengthy — and trying to ascertain the steps to take,” Henson says. Chad Rook, a partner in Tyler's Flowers Davis who represents Green, Washington, Bowers and Whatley in the civil rights case, did not immediately return a call seeking comment.
--- John Council

Federal judge dismisses disciplinary and sanctions proceeding against lawyers initiated by U.S. District Judge John McBryde

Senior U.S. District Judge David Hittner of Houston dismissed with prejudice the disciplinary and sanctions proceeding against a Fort Worth attorney, his former co-counsel and the two lawyers’ former client. In January, U.S. District Judge John McBryde sanctioned Joseph F. Cleveland, a partner in Brackett & Ellis; his former client John Gillig; and Cleveland’s former out-of-state co-counsel Melvin Silverman, according to the 5th U.S. Circuit Court of Appeals' April 4 opinion in In Re Joseph F. Cleveland, et al. In an order, McBryde found that Gillig made "false accusations" against McBryde and that the "lawyers sponsored the false testimony" in a complicated intellectual property case, the 5th Circuit wrote. Among other things, McBryde suspended Cleveland from practicing law before the Northern District of Texas for two years and prohibited Silverman from seeking admission to the Northern District bar or appearing pro hac vice in McBryde's court. Gillig, Cleveland and Silverman appealed McBryde's order to the 5th Circuit. On April 4, the appeals court vacated the sanctions, because during the sanctions hearing, McBryde "repeatedly questioned the witnesses about [his] own statements and conduct," according to the 5th Circuit’s order. Without considering the merits, the 5th Circuit remanded Cleveland to the district court for a different judge to consider the question of sanctions. Edith Jones, the 5th Circuit’s chief judge, later assigned Hittner of the Southern District of Texas to hear Cleveland. After holding a show-cause hearing in July, Hittner issued an opinion on Aug. 29 dismissed with prejudice the disciplinary and sanctions proceeding against all of the men. Hittner ruled that Gillig did not violate federal rules by making a statement in the litigation that was critical of McBryde. Hittner also wrote he was unwilling “to assess disciplinary measures for ‘unethical behavior’ and ‘conduct unbecoming a member of the bar’ ” against Cleveland and Silverman, because their actions in the case were “not improper, [were] substantiated at least in part by the evidence, and the prefiling investigation was objectively reasonable.” Steven Tatum, managing partner of Fort Worth’s Cantey Hanger who represents Cleveland, is pleased with Hittner’s decision. “Joe’s actions were, in fact, reasonable given the circumstance he was in at the time,” Tatum says. Tatum read the following statement by Cleveland: “I adhered to the highest principles of ethics and professionalism in representing my clients’ legitimate right to a fair and unbiased consideration of his case. I am very pleased that Judge Hittner agreed and I look forward to finally putting this matter behind me.” Silverman, of Fort Lauderdale's Melvin K. Silverman & Associates who represented himself and Gillig in the sanctions hearing, says both he and Gillig are also happy with Hittner's decision. “I thought it was very fair, comprehensive, balanced and well-reasoned. I’m of course very pleased with it, and I’m praying that it brings this whole unpleasant chapter to an end." McBryde did not return a call seeking comment.
-- John Council

U.S. Supreme Court Justice Ruth Bader Ginsburg — and one-time Oklahoma resident — shares thoughts on what she reads and what she doesn’t

Last night, U.S. Supreme Court Justice Ruth Bader Ginsburg addressed a packed house at Southern Methodist University in Dallas. The Aug. 29 event inaugurated a lecture series dedicated to legendary Dallas lawyer, the late Louise B. Raggio. “We were born 14 years apart, but I discovered we have a great deal in common,” Ginsburg said about herself and Raggio, who is credited with leading efforts in the 1970s that secured property rights for women in Texas and then spearheading efforts to bolster the Texas Family Code. Ginsburg listed the similarities between herself and Raggio: “Neither of us could find a job when we got out of law school,” both were mothers during law school and “we both recognized that, for enduring change, one must recruit men as allies." After the speech, Ginsburg and SMU Dedman School of Law Dean John B. Attanasio held a public conversation. Brooklyn-born Ginsburg recounted how she lived in Norman, Okla., with her husband who was serving there in the military. During that time, she said, “Dallas was our big city.” She recalled travelling to Big D for three days to attend performances by the Metropolitan Opera at the State Fair of Texas, a treat for a native New Yorker who was missing home, she said. Later, she attended Harvard Law School and graduated from Columbia Law School in 1959 at the top of her class. In 1993, she was sworn in as a justice of the Supreme Court, after President Bill Clinton nominated her and the Senate confirmed her by a 96-3 vote. But Ginsburg, who launched the Women’s Rights Project of the American Civil Liberties Union in 1971, told the audience she believes she would not make the cut in the current political situation surrounding federal judicial nominations. “Today my ACLU connection would disqualify me,” she said, adding, “I wish we could wave a magic wand and go back to those days when the confirmation process was truly bipartisan.” On the court, Ginsburg said the toughest part of her job always has been death penalty cases. To prepare for oral arguments in all cases, Ginsburg said she reads all the prior opinions and part of the record before opening the lawyers’ briefs. She follows that order so she may spot inaccuracies in the briefs. “Lawyers should know, if they try to distort the record, they will be found out,” she said. Writers of amicus briefs face other concerns: “I have to confess, I don’t read all of those. In fact, I don’t read most of them,” Ginsburg said. For the law school students in the audience, she expressed empathy for desires they might have to get high-paying jobs. She also noted that they should seek to change the world for the better during their careers. Otherwise, she said, “you are not much more than a plumber.”

-- Miriam Rozen

UPDATED: Attorney responds to federal judge’s harshly worded order in suit over Texas’ new sonogram law

In a sharply worded order that criticizes a lawyer, U.S. District Judge Sam Sparks of Austin denied a motion filed by a group of Texas women who have had abortions; they had sought to file an amicus curiae brief in a suit challenging the constitutionality of Texas’ new sonogram law. In Texas Medical Providers Performing Abortion Services, et al. v. David Lakey, M.D., et al., the plaintiffs challenge the constitutionally of the new law requiring women seeking an abortion to have a sonogram and hear a description of the fetus. In an order on Aug. 23, Sparks denied the request filed by “317 Texas Women Hurt by Abortion,” writing that he’s already turned down two requests for leave to file amici briefs: “The Court has already turned down two extremely tempting offers to transform this case from a boring old federal lawsuit into an exciting, politically-charged media circus,” Sparks wrote. Sparks had some sharp words for the lawyer who represents the 317 Texas Women Hurt by Abortion: San Antonio lawyer Allen E. Parker Jr., who is president of San Antonio-based The Justice Foundation, a legal advocacy group. Sparks wrote that he is “forced to conclude” that Parker is “anything but competent.” “A competent attorney would not have filed this motion in the first place; if he did, he certainly would not have attached exhibits that are both highly prejudicial and legally irrelevant; and if he foolishly did both things, he surely would not be so unprofessional as to file such exhibits unsealed.” Sparks wrote that a competent attorney who did those things would be “deliberately disrespecting this Court and knowingly shirking his professional responsibilities, offenses for which he would be lucky to retain his bar card, much less an intact bank balance.” However, Sparks wrote that for Parker’s sake and because he has no time to hold a sanctions hearing, “the court assumes Mr. Parker is as incompetent as he appears.” Because of that, Sparks wrote, he simply did “what Mr. Parker would have done if he was a competent professional” and sealed one of the attachments to the motion. Parker says Sparks’ order was “hurtful” but notes he respects the judge and “he’s entitled to his opinion.” Parker says the exhibit, which he says was a picture of an aborted fetus, is relevant to the case. “I did not anticipate offending the judge, since judges view many horrible photos,” Parker says. Susan Hays, a shareholder in Godwin Ronquillo in Dallas is one of several lawyers representing the plaintiffs in Texas Medical Providers. As to Sparks’ order denying the request to file an amicus brief, Hays says, “Judge Sparks is absolutely correct. This case is about the law and not politics.” Lakey, commissioner of the Texas Department of State Health Services, is represented by the Texas Solicitor General’s Office. Assistant Solicitor General Arthur D’Andrea, an attorney for Lakey, refers comment to Tom Kelley, a spokesman for Texas Attorney General Greg Abbott. Kelley did not immediately return a telephone message seeking comment.
-- Brenda Sapino Jeffreys

UPDATE: In an order on Aug. 30, Sparks found some parts of the new law are “unconstitutionally vague” and found it violates the First Amendment by “compelling physicians and patients to engage in government-mandated speech and expression.” He granted in part and denied in part the plaintiffs’ motion for a preliminary injunction. After Sparks issued his order, Texas Attorney General Greg Abbott filed a notice of appeal. The AG’s office represents two of the defendants: David Lakey, commissioner of the Texas Department of State Health Services, and Mari Robinson, executive director of the Texas Medical Board.

Facebook faux pas: former juror faces two days of community service after attempting to “friend” defendant

On Aug. 24, Judge Wade Birdwell of Tarrant County’s 342nd District Court issued an Order Adjudging Contempt of Court and Imposing Sentence of Community Service against Jonathan Gregory Hudson. Earlier, the judge had released Hudson from jury service in a civil suit after learning he had tried to friend on Facebook a litigant in the case, confirms Steve Gordon, a Fort Worth criminal-defense lawyer who represents Hudson. In his contempt order, the judge found 22-year-old Hudson “guilty” of four counts: Contrary to the judge’s instructions, Hudson discussed on Facebook a personal-injury case on which he was serving on a jury panel; contrary to the judge’s instructions, Hudson contacted a litigant in the underlying suit via Facebook and attempted to “friend” the litigant before being released from the jury or jury service; he contacted a litigant via Facebook after being dismissed from the jury but while still on jury service; and contrary to the judge’s instructions, Hudson altered his Facebook page after being dismissed from the jury but while still on jury service. Birdwell required Hudson to serve two days of community service. Gordon says his client didn’t realize at the time he attempted to friend the litigant — a woman who was the defendant in the underlying case — how serious a misstep he was making. Hudson will fulfill his community service obligation by working in the jury services department in Tarrant County, Gordon says. “He’s going to be doing whatever they tell him to do, and he’s going to learn what an imposition this was. This was a big deal, and he now understands that it not only caused an inconvenience to him but to other people and cost taxpayers money,” Gordon says. Scotty MacLean of the MacLean Law Firm in Fort Worth says his client, the plaintiff in the underlying case, was awarded a final judgment of $100,000 on Aug. 1. MacLean feels his client got a fair shake, even though minus Hudson, only 11 jurors, not 12, issued the verdict. Birdwell and Susan Smith of Dallas’ Henderson, Smith, Black & Bryant, who represents the defendant in the underlying suit, each did not return a telephone call seeking comment. In April, the Texas Supreme Court amended Texas Rule of Civil Procedure 226A to require judges to tell prospective jurors to refrain from discussing cases via social networking websites such as Facebook and with anyone through social networks.
-- Miriam Rozen

U.S. Supreme Court Justice Ruth Bader Ginsburg to speak at Southern Methodist University Dedman School of Law's Raggio Endowed Lecture Series tonight

Tonight, U.S. Supreme Court Justice Ruth Bader Ginsburg (pictured) kicks off the Raggio Endowed Lecture Series for Southern Methodist University Dedman School of Law. The lecture series was established by the friends and family of the late Louise B. Raggio, a legendary Dallas family lawyer and a 1952 graduate of the law school. For those who have not already purchased tickets, a limited number will be available beginning at 6 p.m. today at SMU’s McFarlin Memorial Auditorium box office, says Lynn Dempsey, the law school’s director of external relations. The ticket price is $35, she says. Ginsburg is scheduled to speak from 7 to 8 p.m.
-- Jeanne Graham

This week in Texas Lawyer

Show me the money: How much do Dallas big firm partners bill per hour? How much does a small firm experienced assistant make in Austin and San Antonio? What's the going rate for a finance director in Houston? Texas Lawyer’s Salary & Billing Survey 2011 answers these questions and more.

Breaking free of hourly fees: Texas lawyers speak with senior reporter Brenda Sapino Jeffreys about alternative-billing plans that work for them.

Court rebuffs request to write Goodner decision using BIC Pen: Senior reporter John Council looks at when expert testimony is needed in products liability cases.

Generic drugs: U.S. District Judge T. John Ward (pictured) renders one of the first Eastern District of Texas opinions on the Hatch-Waxman Act.

Indictment unsealed: An Austin lawyer denies the allegations in 13-count federal indictment, and senior reporter John Council talks with his attorney.

Lawyer-lobbyist resigns: Austin lawyer-lobbyist Gaylord Armstrong has resigned his position at McGinnis, Lochridge & Kilgore. Reporter Angela Morris finds out why.

Dealmaker of the week:Senior reporter Brenda Sapino Jeffreys speaks with a Houston lawyer about his round-the-clock work on an energy joint venture.

Appellate lawyer of the week: Senior reporter John Council talks with an Austin lawyer who helped her client prevail in a zoning dispute.

Inadmissible. Newsmakers. Discipline. VerdictSearch. Case Summaries.

View from the bench: Justice Jim Moseley (pictured) of Dallas’ 5th Court of Appeals offers advice on answering judges’ questions.

On the level: Instead of scaling back their careers years in advance of having children, women lawyers should move full steam ahead, writes Kathleen Wu.

How solo practice is like a barbershop

A solo lawyer’s business is like a barbershop, says Richard Schell (pictured), a solo business practitioner in McAllen. “Primarily, if I’m not here, there’s no money,” he says. “It’s like a barbershop. If you’re not cutting hair, you’re not making money.” Despite having sole responsibility for maintaining the firm’s cash flow, Schell says there are two major advantages to operating as a solo. “Obviously, you keep all the profits,” he says. “You make all the decisions on your own and don’t have to worry about anyone else.”  While larger firms might require executive committee meetings to increase billing rates or to approve salary increases for nonlawyer professionals such as firm administrators, marketing directors and technology managers, solos like Schell set their own rates and are their firms’ administrators, marketing directors and technology managers.  “The administrative part of it can be time consuming with a steep learning curve,” he says. Schell has one employee, a legal assistant, who helps with tasks such as producing and distributing the firm’s monthly billing statements. Schell says he has been practicing law since 1983 and was a partner in Fleuriet & Schell in Harlingen before opening his own shop in McAllen in 2003. Schell does not have a strategic marketing plan.  “I’ve just been around so long, it’s pretty much all word of mouth,” he says. And when it comes to rate increases, Schell says, “It’s pretty much my perception of what the market will bear.” He charges an average hourly fee of $250 to $275. He also handles his firm’s technology decisions. “I don’t maintain a website, but I’m up to date on technology, e-filing and all the types of software available,” he says. “I’m just naturally curious about all sorts of things.” [Editor's note: For more information on how lawyers set fees and structure their firms, check out Texas Lawyer’s 2011 Salary & Billing Survey.]

-- Jeanne Graham

Recording artists and record-company owners sue Lakewood Church, pastor Joel Osteen and co-pastor Victoria Osteen

Two recording artists from Long Island, N.Y., who own a record company have filed a $3 million copyright infringement suit against Houston independent megachurch Lakewood Church, its pastor Joel Osteen and co-pastor Victoria Osteen, over use of an instrumental recording. Richard Cupolo, John Emanuele and their company Yesh Music allege in a complaint filed on Aug. 24 in the U.S. District Court for the Southern District of Texas that the defendants used a recording of the song “Signaling Through the Flames” in televised church services and in a national advertising campaign for the DVD “Supernatural.” The plaintiffs allege in the complaint that the defendants entered into a “limited licensing agreement” to use “Signaling Through the Flames” on their website and in certain venues, but that agreement expired on Feb. 1, 2011, after one year, and the defendants did not renew it. The plaintiffs allege in the complaint that beginning in March 2011, the defendants began using the music in “global television broadcasts” of church services and in television advertisements for the DVD. “The composition plays as theme music during the entire run time of the advertisement for ‘Supernatural,’ the plaintiffs allege. They allege in the complaint the Osteens and the church “knowingly, willfully and intentionally” caused third parties to use the song, even though they knew they did not have written authorization to do so. The plaintiffs, who compose and perform under the name The American Dollar, allege they license some of their music but allege Yesh Music “is not affiliated with any religious groups or political organizations, and does not desire to have its music associated with Defendants.” Instead, the plaintiffs allege, Yesh seeks “broad marketing of its music without compromising its artistic integrity or alienate its niche following.” They allege the defendants have not made any royalty payments to them but have benefited from the use of the composition. Yesh Music, Cupolo and Emanuele bring direct copyright infringement and contributory copyright infringement causes of action against the defendants. They seek a minimum of $3 million in actual damages, plus punitive damages, interest and attorneys’ fees. Craft Hughes, a partner in Hughes Ellzey of Houston who represents the plaintiffs, says Cupolo and Emanuele did not learn that Lakewood and the Osteens were using “Signaling Through the Flames” until a friend told them about hearing the music on a television commercial for the DVD. In response to the allegations and on behalf of all three defendants, Lakewood spokesman Donald Iloff writes, “The music in question is 1 minute of background music which Lakewood Church had a license to use. The plaintiff is apparently confused about the scope of the license, and are now demanding $3 million for uses that are authorized. We think this is unreasonable.”

-- Brenda Sapino Jeffreys

Former client sues Schirrmeister Diaz-Arrastia Brem

A former client has filed a professional negligence and breach of fiduciary duty suit against Houston lawyer George Diaz-Arrastia and his firm, Schirrmeister Diaz-Arrastia Brem, alleging they failed to properly investigate the solvency and insurance coverage of a contractor prior to filing a suit against it. Southfield Properties of Humble alleges in an Aug. 22 petition that it hired Diaz-Arrastia and Schirrmeister Diaz-Arrastia in March 2007 to sue a contractor in connection with a construction project. Southfield alleges in Southfield Properties LLC v. Schirrmeister Diaz-Arrastia Brem LLP, et al. that it asked the defendants to do an asset check on the contractor and its principals before filing suit to make sure they could satisfy a judgment. “In the alternative, if Defendants’ investigation determined that [the contractor] and its principals were unable to satisfy any significant judgment entered against them, Southfield made it clear that it did not intend to pursue litigation unless its claims were covered by a professional liability insurance policy,” Southfield alleges in the petition, filed in Harris County’s 269th District Court. Southfield alleges the defendants filed a suit against the contractor and put one of the contractor’s insurance carriers on notice of Southfield’s claims, but Diaz-Arrastia and the firm failed to first determine if the contractor and its principals had any money or if there was professional liability insurance available. Southfield alleges that after the defendants “failed” to depose any witnesses after a year and a half, it hired another lawyer to “evaluate Defendants’ performance” and to determine if a judgment could be satisfied. Southfield alleges the new counsel concluded that the contractor and its principals did not have sufficient assets to satisfy a judgment and Southfield’s claims under an insurance policy that would partially cover its claims were time-barred. Southfield seeks a judgment against Diaz-Arrastia and the firm for “all of its actual, consequential, incidental, special, and /or direct” damages, interest and attorneys’ fees. Diaz-Arrastia, a partner in Schirrmeister Diaz-Arrastia, declines to comment, except to say, “We have an arbitration agreement, which we will enforce.” Plaintiffs’ lawyer Mark Evetts, of the Evetts Law Firm in Houston, says Southfield nonsuited the case against the contractor and its principals.

-- Brenda Spaino Jeffreys