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Firm
Newsletter, December 2006
BENNETT LAW FIRM NEWSLETTER
Volume I, Issue 2
December 2006
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Bennett Law Firm to Launch “Defend the Doc” Blog in January
Soon The Bennett Law Firm will begin publishing a firm blog
focusing on health care issues, specifically the Texas
Medical Board’s granting, denying, or termination of
physicians’ medical privileges. Mr. Bennett will be adding
entries on a regular basis in order to keep his client base
and the general public informed about this issue as well as
other important medical-legal concerns. Look for this blog
to be launched in mid-January. In the meantime, we invite
you to learn more about medical privileges by browsing the
following site,
www.peerreview.org as a “resource for both victims of
sham peer review and their legal counsel.” Also, you may
view the firm’s medical site at
www.bennettlawfirm.com.
Renee Moeller writes article on Breaching Confidentiality of
the Grievance Process
Renee E. Moeller, associate with The Bennett Law Firm,
recently composed an article regarding the importance of
abiding by confidentiality agreements throughout the
grievance process. The entire text follows below:
The Grievance Process & Confidentiality - A New Grievance
Waiting to Happen
By Renée E. Moeller of The Bennett Law Firm
Pursuant to Texas Rule of Disciplinary Procedure (“TRDP”)
2.16, the State Bar of Texas grievance process is
confidential throughout the investigative process. Depending
on the outcome, the grievance case remains confidential. If
no violation of the Disciplinary Rules of Professional
Conduct is found, or if a private reprimand is issued for a
violation, the matter remains “private” and confidential.
Only in the instance where the matter progresses after a
Finding of Just Cause to either an Evidentiary Panel
(resulting in a public reprimand or higher sanction) or a
district court trial does the complaint and sanction
information become public.
The confidentiality of the grievance process is to protect
the presumed innocence (remember “innocence until proven
guilty”) responding attorney against whom a complaint or
allegation of professional misconduct has been filed.
However, lacking caution, it is possible for a responding
attorney to waive his/her right to confidentiality by
specifically referring to the grievance in related
litigation or “voluntarily disclosing or consenting to
disclosure of any significant part of the privileged matter
unless disclosure itself is privileged or the person or a
representative callas a person to whom privileged
communications have been made to testify as to the person’s
character or character trait insofar as such communications
are relevant to such character or character trait.
Within the grievance context, the attorney-client privilege
between the complainant and the named attorney is waived for
the purposes of allowing the attorney to defend him/her.
However, this does NOT mean that that the complainant is
allowed to publicize the fact that a grievance has been
filed. Unfortunately, there is often no remedy if the
confidentiality is breached by a layperson.
However, few attorneys realize that any action on behalf of
their client that breaches the grievance process
confidentiality is an ethical violation in and of it self,
and may subject the disclosing attorney to the filing of a
grievance and sanctions. TDRPC 8.04 establishes the three
principal sources of an attorney’s professional obligations
as the Texas Disciplinary Rules of Professional Conduct (“TDRPC”),
the Texas Rules of Disciplinary Procedure (“TRDP”)], and the
State Bar Act, and the State Bar Rules. Therefore, a breach
of the grievance process confidentiality is also a violation
of TDRPC 8.04 as well.
Sometimes a reference to the grievance proceeding must be
made to a court or in any other proceeding, such as a
deposition (subject to publication by motions to compel by
ruling on objections), as failure to properly advise the
Court may also constitute an ethical violation as discussed
below. If required, the reference to the grievance process
should be referred to as a pending administrative matter, to
which a privilege of confidentiality applies. Advising a
court that a “grievance matter” is pending against an
individual not only violates TRDP 2.16, it is a violation of
Texas Disciplinary Rule of Professional Conduct (“TDRPC”)
4.04(b) (1). “A lawyer shall not present, participate in
presenting or threatening to present … disciplinary charges
solely to gain an advantage in a civil matter.”
Although often overlooked, this rule is highly important
because violation of the rule “is an implication that
lawyers can manipulate the legal system to their personal
advantage. Creating such false impressions is an abuse of
the legal system that diminishes public confidence in the
legal profession and in the fairness of the legal system as
a whole.” Making any reference to a pending grievance matter
in open court or in any document filed of public record in
court may be viewed as making highly inflammatory,
prejudicial and unauthorized disclosure of confidential
matters, solely to gain advantage in a civil matter, which
is a violation of TDRPC 4.04(b)(1).
Section 15 of the Preamble of the Texas Disciplinary Rules
of Professional Conduct clearly states:
“The purpose of these rules can be abused when they are
invoked by opposing parties as procedural weapons. The fact
that a rule is a just basis for a lawyer’s self-assessment,
or for sanctioning a lawyer under the administration of a
disciplinary authority, does not imply that an antagonist in
a collateral proceeding or transaction has standing to seek
enforcement of the Rules.”
If not properly worded, the unwary attorney may find that in
making comments to a court regarding a pending grievance
matter, the attorney has by omission also violated TDRPC
3.03: Candor to a Tribunal, by failing to advise the Court
that the comments are a breach of the grievance process or
that matters being discussed fall under a privilege of
confidentiality. Unadvised that an administrative proceeding
is pending to which the privilege of confidentiality
attaches, such comments may be viewed as an omission of
material fact to the tribunal.
Many courts have looked at the issue of an attorney’s
ethical obligation of complete candor to the tribunal (TRDP
3.03). The Fourth District Court of Appeals held that
attorneys repeatedly and deliberated violated their duty of
candor to the court by failing to disclose
misrepresentations, and by continuing litigation and filing
court papers dependent upon false misrepresentations. The
court reaffirmed the general principal that the “first line
task” of lawyers, as officers of the court, is to assure the
integrity of the judicial process.
Misrepresentations to the Court are often viewed as "most
egregious and disturbing," earning dismissal with prejudice
as "the only sanction available that is commensurate with
the duty of candor violations because “the duty of candor is
“priceless: and must be enforced “without reservation.”
The Maryland courts have followed this position, stating
that “[l]egal treatises on the subject of attorney ethics
are in agreement with the commentary to the ABA Model
Rules.”
The New Jersey Superior Court, citing to several separate
opinions, summed the matter up succinctly, stating: “… The
failure to disclose a material fact to a tribunal is an
ethical violation.
A lawyer's responsibility to act with candor and honesty
necessarily requires disclosure of significant facts, even
though the disclosure might not be in the interest of the
client. … An attorney is not merely a hired gun, but,
rather, a professional required to act with candor and
honesty. … Lawyers have an obligation of candor to each
other and to the judicial system, which includes a duty of
disclosure to the court and opposing counsel.
Minnesota , West Virginia and the Eight Circuit have
concurred with the foregoing opinions. Noting that as an
officer of the court an attorney has the responsibility to
present the record with accuracy and candor, an attorney’s
lack of candor to the court is the quickest way to
self-destruction of both the attorney and his/her client:
Yet even more important is the court holding that
circumstances may make a failure to disclose the equivalent
of an affirmative misrepresentation, as selective omission
of pertinent information “'exceeds the bounds of zealous
advocacy and is wholly inappropriate “
In the case of omissions or misrepresentations to the Court,
sanctions have been incurred by the attorneys of record. In
the Minnesota case, the Court found the attorney had
violated her ethical duty of candor to the tribunal and not
only was she suspended from practicing law before the
presiding judge, she was ordered to attend a continuing
legal education course on attorney ethics. Even more
importantly, because the conduct violated the Minnesota
Rules of Professional Conduct, a copy of the opinion was
forwarded to the Office of Lawyers Professional
Responsibility.
In a recent Texas bankruptcy case , the Court held that
counsel breached his ethical duty of candor to the Court and
imposed sanctions stating the attorney had a duty not to
abuse the legal process. Citing to the legal treatise,
Handbook of Texas Lawyer and Judicial Ethics , the Court
quoted: “Materiality in the context of Rule 3.03(a) (1)
“encompasses matters represented to a tribunal that the
judge would attach importance to and would be induced to act
on in making a ruling.”
Not only did the sanctions imposed on counsel included
mandatory CLE, but the Court forwarded a copy of the opinion
to the Chief District Judge for the Southern District of
Texas and to the State Bar of Texas for appropriate
consideration,” citing Canon 3(B) (3) of the Code of Conduct
for United States Judges (“A judge should initiate
appropriate action when the judge becomes aware of reliable
evidence indicating the likelihood of unprofessional conduct
by a jury or lawyer). This Canon comports with the Texas
Disciplinary Rules of Professional Conduct 8.03(a) which
requires a lawyer (or judge) having knowledge that a lawyer
has committed a violation of applicable rules of
professional conduct “shall inform the appropriate
disciplinary authority.”
Therefore, one must constantly be aware that an
indiscriminate or lack of carefully thought out reference
to, or improper reference to a confidential grievance
proceeding can be the source of not one but several ethical
violations on the part of the “speaking” attorney, depending
upon the surrounding circumstances. When recently
interviewed, J.G. Molleston, acting Regional Counsel for the
Houston District of the Office of the Chief Disciplinary
Counsel, indicated that complaints of breach of the
confidentiality of the grievance process by counsel will no
longer be simply dismissed as “Inquiries,” but like any
other filed complaint, will be reviewed on a case by case
basis. The existing caveat is that any responding attorney
complaining of a TRDP 2.16 violation must make sure that
their complaint is proper, and it too is not made for the
solely to gain an advantage in a civil matter, in violation
of Rule 4.04(b)(1).
BLF Legal Assistant writes article exploring issue of
Attorney Fees
Sana Siddiqi, legal assistant to Robert S. Bennett, recently
wrote an article advocating the importance of reasonable
attorney fees. The text follows below:
Reasonable Attorney Fees
By Sana Siddiqi of The Bennett Law Firm
Your client smiles with relief as the judge directs a
favorable verdict. His smile soon turns into a frown as you
extend your congratulations with a bill. "This says I have
to pay $1,000.00 now, and $500.00 a month for the next five
years! It sounds like I'm buying a Mercedes!" You want to
reply, "You are.” thinking in the back of your mind, *What’s
his problem? After all, it's only fair that you are
compensated for all the care and diligence you put into the
case.* Right?
It seems like over the years, attorneys have been getting a
pretty bad rep by the public at large for their seemingly
excessive fees. Determining a fair fee is increasingly
controversial as attorney fees rise due to the higher
amounts involved in litigation. Now clients are shopping
around more so and paying closer attention to their
statements. With a fine comb, clients want to know the what,
when, and why to their monthly invoices. Unfortunately, your
Mercedes purchase or any other personal expenses aren't a
viable answer to their concerns.
To deal with attorney’s fee concerns, the Professionals
Rules of Conduct were adopted by the House of Delegates of
the American Bar Association in the 1980s, and states then
incorporated the suggested rules into their own Rules of
Professional Conduct. The ABA Disciplinary Rules of
Professional Conduct 2-106 and Texas Disciplinary Rules of
Professional Conduct Rule 1.04 consider the following
factors in determining if legal fees, assessed as either
billable hours, flat fees, or contingent fees, are
reasonable and necessary:
- the amount of time and labor put in, the difficulty of the
matter, and the skills required for such matters;
- the foresee ability precluding other employment by lawyer;
- the customary or local fee charged for similar legal
services;
- the amount involved and the results obtained;
- any time restraints imposed on the attorney by client;
- the nature and length of client-attorney relationship;
- the lawyer’s experience, reputation, and ability in
performing such services; and
- whether the fee is fixed or contingent.
In matters of attorney fee disputes, the Texas Supreme
Court1 puts the burden of proof on the plaintiff, the
attorney, to prove the amount of fees reasonably incurred
and necessary to the defendant’s case.
Reasonable Lawyer Fees
So what is “reasonable” in legal fees? The standard for
reasonableness adopted by the Texas Rules of Conduct is the
determination of what is “unconscionable” to discipline for
an illegal fee. Paragraph (a) of Rule 1.04 determines that a
fee is “unconscionable” if a competent lawyer could not form
a reasonable belief that the fee is reasonable. Back to
square one - What is “reasonable”, again? To save us from
going around in circles determining the exact meaning and
relationship of these two terms in our context, the Texas
Rules of Conduct admit that the two major difficulties in
determining whether a fee is an unconscionable fee is the
subjectivity of a number of the factors relied on to find
reasonable fees, including the amount of uncertainty
involved in fee arrangements at the outset. To keep things
simple, it’s important to remember that reasonableness
requires general consideration of any relevant circumstances
as outlined in the factors. As a result, a fair fee will
normally reflect a client's perception of the value of the
services performed, will offer a client predictability of
the fee, and will reward the attorney for quality,
efficiency, and productivity.
Case Examples
There are many Texas cases illustrating the courts reasoning
in the recovery of legal services. Consider the 1990 CPS
International, Inc. and Creole Production Services v. Harris
& Westmoreland case. Here a law firm sued the former client
to recover the value of their legal service. The issue in
this case was whether the firm’s legal fees were reasonable
given that the firm failed to perform the work for which
they billed for. The relevant evidence in this case included
the extent of the attorney’s compliance to discovery
requests and that the firm did not have itemized time
records of staff conferences and research costs for their
client. In the more recent Holt Texas, LTD v. Oscar Hale,
Jr., the court applied Rule 1.04(b) to determine that the
almost double the prevailing hourly rate was excessive in a
wrongful death action. Here the court considered the 90
hours spent, the type of wrongful death action, the
customary ad litem rate of $300 in the community, and the
degree of complexity of the services and benefits, as
insufficient evidence to compare the attorney’s $555.00 per
hour charge as reasonable. In the end, the court reduced the
attorney’s fees of $50,000.00 to a more reasonable
$22,500.00.
Arguably, $50,000.00 doesn’t seem to be as shocking even in
2000, as say the millions in attorney fee’s of corporate
settlements now. In such cases, factor four regarding the
amount involved and the results obtained has significant
application in determining reasonable rates. Consider the
$15.3 billion dollar Texas settlement with tobacco companies
in 1998, which was then upped by another $2.2 billion
following Minnesota’s win. In this $17.5 billion dollar win,
everyone seemed to walk away a winner. Among the winners
were the state, the counties, county hospital districts,
charities, and of course, the lawyers who worked so hard for
their millions. The higher amount at stake, the more willing
people are to pay for talented lawyers, no matter how
“unconscionable” or “unreasonable”.
For contingent fees, Texas Supreme Court rules that although
contingent fees may seem reasonable from the standpoint of
the parties to the contract, the fee arrangement itself is
not necessarily reasonable when that fee is shifted to the
defendant. The contingent fee agreement is to be considered
by the fact finder and the plaintiff must prove that the
amount of fees were both reasonable and necessary to the
case at hand. Arthur Andersen & Co., v. Perry Equipment Co.,
(Tex. 1997). However, attorneys always run the risk of
raising ethical questions on the amounts of contingent fees.
For example, the New York Times covered a 2004 story titled
“Ethical Questions Raised on Legal Fee From Widow” about
widow Mary Corcoran’s vicarious liability lawsuit against
her late husband’s employer. In this case Ms. Corcoran was
awarded the $1.4 million she negotiated without any lawyer
even after she retained counsel. She ended up paying
$140,000.00 to an attorney who simply referred her to a
bigger firm by making a phone call. In this case, efforts to
limit the contingency fee agreement by reasonableness were
of no use as the court held up the 10% of the total terms of
the parties’ contract. Overall, cases such as these
significantly add to the negative public image of excessive
attorney fees.
Current Average Rates
The range of the reasonable attorney fees varies from city
to city. Unfortunately for attorneys in general, Benjamin
Civility’s 2005 $1,000.00 and higher hourly rate won’t to
become a trend starter just quiet yet. On average, most
large law firms in the United States bill between $300 and
$500 per hour for their associates’ time, and smaller firms
have lower hourly rates. In Texas, the state average for
equity partners in 2006 is surveyed at $384.00 per hour,
with Houston alone at $365.00 per hour and Dallas at a
higher $409.00 per hour. The Texas average hourly billing
rate is lower for associates, ranging from $182.00 per hour
to $240.00 per hour. Overall, the numbers signify rising
rates from 2005.
Conclusion
Attorney’s should keep that generally circumstances at the
time of a fee arrangement will control in determining a
reasonable fee. Remember that Rule 1.04(b) suggests that a
reasonable fee will normally reflect a client's perception
of the value of the services performed, will offer a client
predictability of the fee, and will reward the attorney for
quality, efficiency, and productivity.
Upcoming Events:
Wednesday, January 10, 2007 - Bob Bennett to speak at Black
Lawyer’s Association, Austin, TX.
Wednesday, January 31, 2007 – Bob Bennett to speak at
Matagorda County Bar Association, Bay City, TX.
________________________________________________________________________
The Bennett Law Firm, P.C.
A former federal prosecutor, Robert S. “Bob” Bennett is
Board Certified in Consumer and Commercial Law and is a
founding partner of The Bennett Law Firm, P.C. in Houston,
Texas. The Bennett Law Firm, P.C. not only specializes in
the representation of attorneys and judges in grievance
matters, but also the representation of health care
professionals in matters before the Texas State Medical
Board. Mr. Bennett has authored numerous articles relating
to grievance, professional conduct, and health law issues.
For copies of articles and additional information see
http://www.bennettlawfirm.com.
*If you know of any other individuals (attorneys, doctors,
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