Texas Lawyer Blog

3rd Court denies request for free record made by man battling Texas Board of Law Examiners

Kristofer Thomas Kastner has spent a lot of time battling the Texas Board of Law Examiners over its refusal to issue him a law license. Kastner represents himself in Kastner v. Texas Board of Law Examiners, et al. and filed an affidavit of inability to pay appellate costs and a request for a free record in a Travis County district court. The defendants objected to Kastner’s affidavit and request, an objection the trial court sustained. So Kastner appealed to Austin’s 3rd Court of Appeals. The opinion notes that the defendants argued in their brief to the 3rd Court that Kastner is “voluntarily underemployed.” Kastner denied that and countered that his eligibility for food stamps is “black letter inability to pay under” the Texas Rules of Civil Procedure. The 3rd Court ruled for the defendants on Aug. 18, noting that Kastner has been declared a “vexatious litigant” by the trial court and that his alleged indigence has been litigated “in numerous federal and state courts, including this one.” Justice Bob Pemberton wrote, “On this record, we cannot conclude that the district court abused its discretion in finding that Kastner failed to satisfy his burden to prove, by a preponderance of the evidence, that he would be unable to pay the costs, or a part thereof, or give security therefore, if he really wanted to and made a good-faith effort to do so.” Kastner says in an interview that he plans to update his affidavits of inability to pay in the trial and appellate courts. He adds that he is starting a new job in customer service for an insurance company next month. “I don’t see the opinion as being set in stone,” Kastner says, arguing that he doesn’t have to be “completely indigent” to pursue an affidavit of inability to pay. Ted Ross, a Texas assistant attorney general who represents the defendants, declines comment on the decision.
 -- John Council

Book by University of Houston Law Center professor, students addresses legal issues related to wrongful convictions

The University of Houston Law Center is hosting a luncheon on campus today to raise awareness about wrongful convictions and to celebrate the publication of a book, “American Justice in the Age of Innocence.” “The book is basically a public service project that my students and I did to try and put some literature out on some of the important legal issues related to wrongful convictions,” says law professor Sandra Guerra Thompson (pictured), director of the law school’s Criminal Justice Institute (CJI). State Sen. Rodney Ellis, D-Houston, will be the luncheon’s keynote speaker and will discuss Texas’ legislative reforms to combat wrongful convictions, she says. Cornelius Dupree Jr., who served 30 years in prison before DNA testing led to his exoneration, will also be a guest at the luncheon, Thompson notes. Students in Thompson’s spring 2010 seminar, Hot Topics in Criminal Law, contributed to the book by writing chapters on specific topics, such as eyewitness identifications and false confessions, and by helping edit the work, she says. One chapter addresses the Texas law on obtaining DNA testing. “What it shows is that, just because a person is innocent, it doesn’t mean they will have access to DNA testing,” she says. Thompson served on the Timothy Cole Advisory Panel on Wrongful Convictions, which submitted reform recommendations to the Texas Task Force on Indigent Defense in August 2010. The book, self-published by the CJI through iUniverse, was released in July and is available on Amazon.com and BarnesandNoble.com, she says. Book proceeds will go to the CJI. “We have already sent out copies of the book to all the legislators on the [Texas] criminal justice committee,” Thompson says. “We want to bring more awareness about wrongful convictions to the general public and to legislators who have some say in changing the laws in Texas.”

-- Jeanne Graham

Rededication held for newly restored Harris County 1910 Courthouse

Yesterday, 100 years after its first dedication, people gathered to rededicate the newly restored Harris County 1910 Courthouse. With the completion of the restoration project that began in 2009, the courthouse will house the 1st and 14th Courts of Appeals as of Sept. 6. It’s a “dream of a courthouse,” master of ceremonies and retired 11th District Judge Mark Davidson told the standing-room crowd at the ceremony held in one of the courthouse’s two courtrooms. He told visitors, “Walk around. Use your imagination. Walk forward or backward in time.” Current and former members of the 1st Court and 14th Court, Harris County elected officials, and a slew of judges and lawyers attended the dedication. The original courthouse cost $500,000, but the restoration to bring most of the building back to its 1910 look cost about $65 million. The Texas Historical Commission provided $5.5 million in grant money for the project. The work undid previous changes to the building, most made during a 1954 restoration project, when, for instance, the main entrances to the Classical Revival building moved from the second to the first floor and restorers enclosed the central rotunda to provide more working space. Today, however, the building features balconies in both courtrooms, new wood-framed windows throughout the building, marble in the hallways and courtrooms, and a view of a new stained glass skylight at the top of the rotunda. When the appeals courts move into the 1910 courthouse next month, they actually will be making a return trip, 14th Court Chief Justice Adele Hedges told the rededication crowd. The 1st Court moved into the building in 1954 and the 14th Court in 1967, but both departed for space at South Texas College of Law in 1984. She said the appeals courts had what they needed at the law school to dispense justice but didn’t have “beauty,” and they will experience beauty in the restored courthouse.
-- Brenda Sapino Jeffreys

Southern District of Texas bankruptcy judge awards Baker Botts big fees, offers high praise

U.S. Bankruptcy Judge Richard Schmidt of the Southern District of Texas signed an order on Aug. 18 awarding Baker Botts an exceptional amount of fees for “exemplary” work as debtor’s counsel in In Re ASARCO LLC, et al., Debtors. Schmidt, of Corpus Christi, awarded the Houston-based firm $117,387,304 in fees — including $4,161,708 as an enhancement for “exceptional results” — and $6,046,135 in expenses for its work on the Chapter 11 from Aug. 9, 2005, through Dec. 8, 2009. Schmidt also awarded the firm $5 million in fees and $457,443 in expenses for preparing and defending its fee application through July 13, 2010. In the final fee order, Schmidt authorized a payment of $9,750,757 to the firm, which is the amount of unpaid fees and expenses related to the ASARCO LLC bankruptcy. On July 20, in a memorandum opinion on Baker Botts’ final fee application, Schmidt heaped praise on the firm. He wrote that the firm achieved “nothing short of extraordinary” results for its client in the Chapter 11. “Baker Botts performed in an extraordinary fashion in numerous areas, but perhaps most notably in trying and obtaining a multi-billion-dollar judgment” against ASARCO’s parent company, Americas Mining Corp., in connection with the sale of ASARCO’s controlling ownership interest in Southern Copper. Schmidt wrote that the more than $6 billion judgment in ASARCO’s favor “most likely is the largest fraudulent transfer verdict in United States history.” Irv Terrell, a Baker Botts partner in Houston who tried the fraudulent transfer suit, says that judgment resulted in $6.5 billion for ASARCO. “I’m very proud of the fact that the law firm was able to try that case in about a little over a year, start to finish, from the time we filed it and we were able to achieve such a result,” Terrell says. Brian Antweil, a partner in Haynes and Boone in Houston who represented Americas Mining Corp. in the suit, did not immediately return a telephone message. Jack Kinzie, a partner in Dallas who was the lead bankruptcy lawyer on the case, says, “I’ve been in this [bankruptcy practice] for 35 years, and, I have to say, it’s been the case of my career.” In a press release, the firm notes that ASARCO creditors received “more than $3.5 billion, which represented payment in full of all claims, plus interest and attorney’s fees.”
-- Brenda Sapino Jeffreys

Austin lawyer indicted on federal charges

A Southern District of Texas grand jury hit Austin lawyer Marc Garrett Rosenthal with 13 federal criminal counts on August 16, including charges that he allegedly bribed a state district judge in exchange for favorable rulings and charges that he allegedly persuaded a witness to give perjured testimony in a federal civil suit. The indictment, unsealed Aug. 22, also alleges that Rosenthal profited heavily from alleged racketeering and that at least $5.95 million of his assets are subject to forfeiture. Rosenthal, a partner in Rosenthal & Watson, did not return a call for comment. Former 404th District Judge Abel Limas of Brownsville, who Rosenthal is accused of bribing, pleaded guilty to a racketeering charge in March and is awaiting sentencing, according to PACER, the federal courts’ online filing system. Jose Santiago “Jim” Solis, a former state representative and partner in Harlingen’s Solis & Robles, pleaded guilty in April to aiding and abetting extortion in connection with paying Limas for favorable rulings and also is awaiting sentencing, according to PACER. Rosenthal & Watson released a statement supporting Rosenthal: “Rosenthal & Watson stands fully behind Marc Rosenthal and his innocence of these charges. We are proud of his work with the firm and he’s helped hundreds of people get justice in our courts by following the rules for his entire career. The admissions of wrongdoing from the judge and others are disheartening. But we were not aware of their improper activities. We expect to see Marc vindicated.” Brownsville solo Ernesto Gamez Jr., who represents Rosenthal, did not immediately return a call for comment. Neither did Michael Wynne, an assistant U.S. attorney in the Southern District of Texas who is prosecuting Rosenthal.
– John Council

This week in Texas Lawyer

Not persuaded: The 4th Court of Appeals overturns a summary judgment granted to defendants in a legal malpractice suit. Reporter Angela Morris looks at the case.

Offer rates: 2012 associate offer rates remain solid, signaling that firms are optimistic about next year's business prospects. Research editor Jeanne Graham and senior reporter Brenda Sapino Jeffreys get the inside scoop from Gardere summer hiring partner Carrie Hoffman (pictured) and others who help decide whether summer associates get full-time gigs at large Texas firms.

E-discovery and the Federal Rules of Civil Procedure: Senior reporter John Council interviews Andrea Kuperman, chief counsel of the Civil Rules Advisory Committee of the U.S. Judicial Conference, about potential revisions to rules on evidence preservation and sanctions related to e-discovery.

Judge sets example: Judge Dib Waldrip of the 433rd District Court in New Braunfels credits his upbringing on a ranch with showing him the importance of hard work and dedication. Reporter Angela Morris looks at how he helps addicted defendants by stressing patience and hard work.

Wrongful imprisonment: A federal jury declines to award civil damages to Jesus Ramirez and Alfredo Sifuentes, who alleged in a civil rights suit that authorities conspired against them and as a result they served 12 years in prison for a crime they did not commit.

Appellate Lawyer of the Week: Todd Hoodenpyle's en banc win at the 5th U.S. Circuit Court of Appeals is a big deal for trustees faced with debtors who do not disclose to the bankruptcy court assets won in prior litigation. Senior reporter John Council explains.

Board certification: Kendall Gray (pictured) talks about the difficulties -- and rewards -- of getting board certified in civil appeals.

Are you beer-worthy?: Adrian Dayton learns about "beer-worthiness" on a speaking engagement in Australia -- a concept that might change how you do business.  

Newsmakers. VerdictSearch. Case Summaries. Inadmissible. Discipline. Correction.

Winning Women: The Texas Lawyer editorial department profiles 20 Winning Women — the best of the best when it comes to Lone Star State litigation and appellate law.

Morning docket

The Texas Supreme Court requested briefs on the merits in a case in which former football coach Mike Leach sued Texas Tech University, says an Associated Press story in The Brownsville Herald. The university argued it has sovereign immunity. “Leach attorney Paul Dobrowski said the court wants to look at whether Texas Tech conduct in handling the former coach's dismissal warrants a waiver of sovereign immunity,” the AP wrote.
 
The Blog of Legal Times reports on a White House blog post that “criticized the Senate for not voting on 20 pending nominees before leaving Washington for its August recess. It also highlights recent statements by Stephen Zack, then the president of the American Bar Association, and the editorial board of The Washington Post, both calling for a faster confirmation process for nominees.” 

Grits for Breakfast highlights a New York Times story about a research study of “release decisions by the Israeli parole board.” The research indicated the parole board’s decisions may be impacted by each individual judge’s glucose levels. “In midmorning . . . the parole board would take a break, and the judges would be served a sandwich and a piece of fruit. The prisoners who appeared just before the break had only about a 20 percent chance of getting parole, but the ones appearing right after had around a 65 percent chance,” The New York Times wrote. 

“Responding to an attempt by Roger Clemens' attorney to bar a retrial in the former baseball superstar's perjury case, prosecutors filed a brief … arguing that Clemens is ‘seeking to gain an unwarranted windfall’ from an ‘inadvertent error,’” reports the Blog of Legal Times, a Texas Lawyer affiliate.
 
An Austin American-Statesman story examines the two-year-old Texas Office of Capital Writs, which the “Texas Legislature created the office two years ago after repeated instances of shoddy legal work by appeals attorneys representing capital murder convicts. The agency now handles the state appellate process for nearly all new Texas death penalty cases.” The office currently has about 12 clients on death row.

-- Angela Morris

Majority of BigTex firms forecast sunny outlook for hiring of 2012 summer associates

Firms began conducting on-campus interviews this week at Texas law schools, and 14 of the state’s largest 25 firms say they plan to hire as many or more summer associates for 2012 than they did for 2011. The firms are on campuses primarily to recruit students beginning their second year of law school to work at the firms during the summer preceding their third year of school. Large firms tend to hire most of their full-time associates from among the students who work for them during the summer.

“We are anticipating six total summer associates, which would be for permanent jobs beginning in the fall of 2013,” says Kitty Henry, co-chair of law school recruiting for Dallas-based Munsch Hardt Kopf & Harr. Munsch Hardt is one of six large firms planning to bring in more summer associates in 2012 than it did this year. The firm did not have a 2011 summer associate class because it had hired four first-year associates to begin this fall, from the summer class of 2010, and wanted to allow time for “them to become part of the firm and take a breather to absorb that capacity,” Henry says.

Like most firms, Munsch Hardt recruits law students in several ways: by participating in on-campus interviews; by collecting résumés from students at law schools the firm does not visit; and by participating in job fairs that bring students from various schools to one location, such as the Sunbelt Minority Recruiting Program on Aug. 26 in Dallas. From those venues, Henry says the firm will invite its top candidates for call-back interviews at its offices and will make summer job offers by mid-September. “We want to get our offers out there, kind of get first in line,” Henry says. 

Dallas-based Gardere Wynne Sewell is looking to hire eight to 10 summer associates for 2012, up from five this summer, says Carrie Hoffman, the firm’s summer hiring partner. Hoffman says the economy is improving and the summer hires are for full-time positions two years down the road in the fall of 2013. “We anticipate the market will have righted itself,” she says.

Hunton & Williams is looking for three to seven summer associates for its Texas offices for 2012, compared with two summer associates in 2011, says Alan Marcuis, the recruiting committee chairman for the firm’s Dallas office. “It just depends on who we find and who likes us and who we like,” he says. In addition to Dallas, the Richmond, Va.-based firm has offices in Austin and Houston.

Dallas-based Winstead is targeting a 2012 summer associate class size of 14 students, hiring shareholder Mike Alessio writes in an email. The firm had seven summer associates in 2011.

Thompson & Knight, based in Dallas, is also planning a larger 2012 summer class, says hiring partner Dave Schulte. “We’re looking to have a slightly larger summer, in the neighborhood of 12 [summer associates] in Dallas and about eight to 10 in Houston,” he says. The firm had 18 Texas summer associates in 2011.

Dallas-based Strasburger & Price, which did not have a 2011 summer associate class, is recruiting for a 2012 summer associate class similar in size to recent classes, says hiring partner Scott Shanes. The firm had nine summer associates in 2010.

Lawyers with another eight large firms say they plan to hire 2012 summer associate classes similar in size to this year. The firms and the number of their 2011 summer associates in Texas are: Akin Gump Strauss Hauer & Feld (14); Baker Botts (48); Bracewell & Giuliani (28); Jackson Walker (20); Kelly Hart & Hallman (seven); Locke Lord Bissell & Liddell (17); Looper Reed & McGraw (seven); and Vinson & Elkins (75).
-- Jeanne Graham

Editor's note: The above blog has been corrected to reflect the accurate date of the Sunbelt Minority Recruiting Program in Dallas and the number of Baker Botts 2011 summer associates in Texas.

Morning docket

A Houston attorney was arrested and charged with a barratry offense “for signing up a client who was in a car accident without that person’s permission,” reports My Fox Houston.

“A federal judge in Trenton [N.J.] on Monday breathed new life into a law firm's class-action suit that alleges there was a deliberately placed ‘time bomb’ in its calendaring and billing software,” reports The New Jersey Law Journal, a Texas Lawyer affiliate.

“A California law firm has been raided and shut down and four attorneys are among 18 individual defendants sued in civil litigation over a fraud allegedly perpetrated on thousands of struggling homeowners nationwide,” reports the ABA Journal. Reporters couldn’t reach two of the lawyers, but the story says, “websites for their law firms, however, state or imply that both had problems with unauthorized individuals misappropriating the law firms' identities.”

“A year after a vote that left bitter feelings, the Austin City Council is poised to again consider settling a lawsuit for $750,000 with the family of a man fatally shot by a police officer in 2009,” reports the Austin American-Statesman.

“State parole officials said Thursday that 176 parolees have had their classification as sex offenders lifted since May as officials reversed a longstanding policy that subjected the convicts to extra monitoring even though they had not been convicted of sex crimes. An additional 300 parolees' cases are being reviewed,” reports the Austin American-Statesman.

-- Angela Morris

Malpractice suit filed against Houston lawyer, firm

Shannon Lewis filed a malpractice suit on Aug. 12, alleging Houston lawyer Eric Davis and his firm Davis & Associates missed a filing deadline for Lewis’ whistle-blower suit, leading to a dismissal. Lewis, of Houston, alleges in the petition he filed in the 281st District Court in Harris County that he hired Davis and his firm on Dec. 28, 2009, on a contingency basis to file a wrongful-termination and retaliation suit against the city of Houston in connection to “his being a whistleblower under the Texas Whistleblower Act.” Lewis alleges, “Davis allowed the statute of limitations to run” before he filed Shannon Lewis v. City of Houston in Harris County in 2010. Lewis alleges that after the city filed a motion to dismiss Lewis v. City of Houston, Davis “prepared a shoddy, limited response” and a judge ultimately dismissed the suit. Lewis brings legal malpractice, fraud and breach of fiduciary duty causes of action against Davis and the firm. Noting that whistle-blower suits filed against cities in the Houston area “typically range in value from $250,000 to $1,250,000,” Lewis seeks actual damages “which will make him whole,” plus punitive damages, interest and other relief. Davis, reached by telephone on Aug. 16, was not aware he had been sued and declines comment. The plaintiff’s attorney, Alfonso Kennard Jr., founding shareholder of Kennard Law of Houston, also declines comment.
-- Brenda Sapino Jeffreys