10-0092
_______________
In The
Supreme Court of Texas
_______________
JASPER C. ROWE,
APPELLANT
V.
COMMISSION FOR LAWYER DISCIPLINE,
APPELLEE
_______________
On Appeal from the Board of Disciplinary Appeals
Of the Supreme Court of Texas
BODA No. 42935
_______________
BRIEF OF APPELLEE
COMMISSION FOR LAWYER DISCIPLINE
_______________
LINDA A. ACEVEDO
CHIEF DISCIPLINARY COUNSEL
CYNTHIA CANFIELD HAMILTON
SENIOR APPELLATE COUNSEL
OFFICE OF THE CHIEF DISCIPLINARY COUNSEL
COMMISSION FOR LAWYER DISCIPLINE
STATE BAR OF TEXAS
P.O. BOX 12487
AUSTIN, TEXAS 78711-2487
512.427.1350; 1.877.953.5535
FAX: 512.427.4167
i
IDENTITY OF PARTIES AND COUNSEL
APPELLANT
JASPER C. ROWE
P.O. Box 141954
Irving, Texas 75014
Telephone: 469.231.1920
Fax: 214.889.3800
APPELLEE
COMMISSION FOR LAWYER DISCIPLINE
P.O. Box 12487
Austin, Texas 78711
COUNSEL FOR APPELLEE
LINDA A. ACEVEDO
Chief Disciplinary Counsel
CYNTHIA CANFIELD HAMILTON
Senior Appellate Counsel
State Bar of Texas
P.O. Box 12487
Austin, Texas 78711
Telephone: 512.427.1350; 1.877.953.5535
Fax: 512.427.4167
ii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL ................................................................................... i
TABLE OF CONTENTS .......................................................................................................... ii
INDEX OF AUTHORITIES ..................................................................................................... iv
STATEMENT OF THE CASE .................................................................................................. ix
ISSUES PRESENTED ............................................................................................................... x
Is it an abuse of discretion for a trial court to deny a motion for continuance
filed less than two days prior to trial where the motion does not set forth a
compelling reason for a last-minute continuance and the motion does not
satisfy the prerequisites for such a motion? ............................................................... x
Where an attorney acts as the independent executor for an estate as well as
the attorney for the independent executor, is the attorney engaged in pro se
representation? ........................................................................................................... x
Is an attorneys conduct immune to discipline due to the fact that the conduct
occurs during the attorneys representation of himself? ............................................ x
Does a trial court commit reversible error by excluding evidence where (1)
the proponent fails to make an offer of proof or bill of exceptions and (2) the
evidence is not controlling on a material issue? ........................................................ x
Is recusal required merely because a partys witness is an acquaintance of the
judge? ......................................................................................................................... x
Must an evidentiary panel always include at least one minority member if the
respondent attorney is a minority? ............................................................................. x
STATEMENT OF FACTS ......................................................................................................... 1
SUMMARY OF THE ARGUMENT ............................................................................................ 5
iii
ARGUMENT .......................................................................................................................... 7
I. Standard of review .................................................................................................... 7
II. Part II of the Texas Rules of Disciplinary Procedure governs administrative
proceedings in attorney disciplinary matters ............................................................ 7
III. The Evidentiary Panel did not improperly consider the findings of the
probate court ........................................................................................................... 10
IV. The denial of Rowes motion for continuance was not an abuse of discretion
because a trial court has broad latitude to determine a motion for
continuance and Rowe failed to provide proper documentation to support his
request for a last-minute continuance ..................................................................... 11
V. The Evidentiary Panel did not erroneously sanction Rowe for conduct that
took place during his representation of himself because the record makes it
clear that the conduct at issue actually took place during Rowes
representation of the Miller Estate and because even a lawyer engaged in
pro se representation is subject to the disciplinary rules ........................................ 15
VI. The Judgment of Disbarment should not be reversed on the basis of Rowes
arguments regarding the exclusion of testimony because Rowe failed to
demonstrate to the Panel what the substance of the testimony would have
been; the testimony was not controlling on a material issue; and it is not
likely that the exclusion of the testimony, even if erroneous, resulted in the
rendition of an improper judgment. ........................................................................ 17
VII. Rowe waived his argument regarding the weight of the evidence by failing
to brief the issue properly ....................................................................................... 22
VIII. Contrary to Rowes argument, a panel members acquaintance with a
witness called by the Commission did not require the panel members
recusal ..................................................................................................................... 23
IX. There is no requirement for an evidentiary panel to include at least one
member who is in the same racial minority as the respondent attorney ................ 27
PRAYER ............................................................................................................................. 28
CERTIFICATE OF SERVICE .................................................................................................. 28
APPENDIX .......................................................................................................................... 30
iv
CASES INDEX OF AUTHORITIES
PAGE
Cohn v. Commn for Lawyer Discipline,
979 S.W.2d 694 (Tex.App.Houston [14
th
Dist.] 1998, no pet.) ........................ 16
Condry v. Mantooth,
460 S.W.2d 513 (Tex.Civ.App.Houston [1
st
Dist.] 1970, no writ) ................... 12
Diaz v. Commn for Lawyer Discipline,
953 S.W.2d 435 (Tex.App.Austin 1997, no writ) ............................................. 17
Dolenz v. State Bar of Tex., 72 S.W.3d 385 (Tex.App.Dallas 2001, no pet.) ............... 23
Hawthorne v. Guenther,
917 S.W.2d 924 (Tex.App.Beaumont 1996, writ denied) ................................. 12
Humphrey v. Ahlschlager, 778 S.W.2d 480 (Tex.App.Dallas 1989, no writ) .............. 12
In re Birdwell, 20 S.W.3d 685 (Tex. 2000) ......................................................................... 7
In re Estate of Miller, 243 S.W.3d 831 (Tex.App.Dallas 2008, no pet.) ...................... 15
In re N.R.C., 94 S.W.3d 799 (Tex.App.Houston [14
th
Dist.] 2002, pet. denied) .... 18, 20
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) ............................................... 10
Meachum v. Commn for Lawyer Discipline,
36 S.W.3d 612 (Tex.App.Dallas 2000, pet. denied). .................................. 10, 23
Olivares v. State, 693 S.W.2d 486 (Tex.App.San Antonio 1985, writ dismd) ............ 13
Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35 (Tex. 1998) ...................... 17
Rector v. Tex. Alcoholic Beverage Commn, 599 S.W.2d 800 (Tex. 1980) ...................... 27
San Saba Energy, L.P. v. Crawford,
171 S.W.3d 323 (Tex.App.Houston [14
th
Dist.] 2005, no pet.) ........................ 22
Smith v. Commn for Lawyer Discipline,
42 S.W.3d 362 (Tex.App.Houston [14th Dist.] 2001, no pet.) ................... 22, 23
State v. Crank, 666 S.W.2d 91 (Tex. 1984) ...................................................................... 12
v
Tex. Dept of Transp. v. Able, 35 S.W.3d 608 (Tex. 2000) ......................................... 18, 21
Vickery v. Vickery, 999 S.W.2d 342 (Tex. 1999) ........................................................ 12, 13
Worldpeace v. Commn for Lawyer Discipline,
183 S.W.3d 451 (Tex.App.Houston [14
th
Dist.] 2005, pet. denied) .................. 22
Yowell v. Piper Aircraft Corp., 703 S.W.2d 630 (Tex. 1986) ........................................... 12
STATUTES AND RULES
PAGE
TEX. DISCIPLINARY R. PROF. COND. 1.04(a) ........................................................... 20
TEX. DISCIPLINARY R. PROF. COND. 8.04(a)(1) ...................................................... 16
TEX. GOVT CODE ANN., tit. 2, subtit. G app. A (Vernon 2005) ................................ viii
TEX. GOVT CODE ANN. 81.073 (Vernon 2005) ......................................................... 7
TEX. GOVT CODE ANN. 81.074 (Vernon 2005) ......................................................... 7
TEX. GOVT CODE ANN. 81.075 (Vernon 2005) ......................................................... 8
TEX. GOVT CODE ANN. 81.075(a) (Vernon 2005) .................................................... 8
TEX. GOVT CODE ANN. 81.075(b)(1) (Vernon 2005) ............................................... 8
TEX. GOVT CODE ANN. 81.075(b)(2) (Vernon 2005) ............................................... 8
TEX. R. APP. P. 33.1 ........................................................................................................ 10
TEX. R. APP. P. 33.1(a) .................................................................................................... 27
TEX. R. APP. P. 38.1(g)...................................................................................................... 1
TEX. R. APP. P. 38.1(h).............................................................................................. 10, 22
TEX. R. APP. P. 61.1 ........................................................................................................ 21
TEX. R. CIV. P. 18a(a) ............................................................................................... 24, 25
TEX. R. CIV. P. 18a(c) ..................................................................................................... 24
TEX. R. CIV. P. 18a(d) ..................................................................................................... 25
TEX. R. CIV. P. 18a(e) ..................................................................................................... 25
TEX. R. CIV. P. 18a(f) ...................................................................................................... 25
TEX. R. CIV. P. 18b(2) ..................................................................................................... 26
TEX. R. DISCIPLINARY P. 1.06U .................................................................................... 8
TEX. R. DISCIPLINARY P. 1.06Y .................................................................................... 9
TEX. R. DISCIPLINARY P. 2.01-2.28 ............................................................................... 7
TEX. R. DISCIPLINARY P. 2.06 ......................................................................... 23, 25, 26
TEX. R. DISCIPLINARY P. 2.10 ................................................................................... 7, 8
TEX. R. DISCIPLINARY P. 2.12 ....................................................................................... 8
TEX. R. DISCIPLINARY P. 2.13 ....................................................................................... 8
vi
TEX. R. DISCIPLINARY P. 2.14 ....................................................................................... 8
TEX. R. DISCIPLINARY P. 2.15 ....................................................................................... 8
TEX. R. DISCIPLINARY P. 2.17 ....................................................................................... 9
TEX. R. DISCIPLINARY P. 2.17L .................................................................................... 9
TEX. R. DISCIPLINARY P. 2.17M ................................................................................... 9
TEX. R. DISCIPLINARY P. 2.17P .................................................................................... 9
TEX. R. DISCIPLINARY P. 2.24 ....................................................................................... 9
TEX. R. DISCIPLINARY P. 2.28 ................................................................................... 7, 9
TEX. R. DISCIPLINARY P. 7.11 ................................................................................... 7, 9
TEX. R. EVID. 103(a)(2) .................................................................................................. 18
vii
No. 10-0092
_______________
In The
Supreme Court of Texas
_______________
JASPER C. ROWE,
APPELLANT
V.
COMMISSION FOR LAWYER DISCIPLINE,
APPELLEE
_______________
On Appeal from the Board of Disciplinary Appeals
Of the Supreme Court of Texas
BODA No. 42935
_______________
BRIEF OF APPELLEE
COMMISSION FOR LAWYER DISCIPLINE
_______________
TO THE HONORABLE SUPREME COURT OF TEXAS:
Appellee, the Commission for Lawyer Discipline, submits this brief in response to
the brief filed by Appellant, Jasper C. Rowe. For clarity, Appellant will be referred to as
Rowe and Appellee as the Commission. The Board of Disciplinary Appeals will be
referred to as BODA. Any reference in this brief to any matter contained in the record
before the Court shall be labeled BODA CR (clerks record filed by Board of
Disciplinary Appeals), CR (clerks record from evidentiary proceeding) RR (reporters
record from evidentiary proceeding), Pet. Ex. (Petitioners exhibit to reporters record),
or Resp. Ex. (Respondents exhibit to reporters record). All references to rules are
viii
references to the Texas Disciplinary Rules of Professional Conduct
1
1
Reprinted in TEX. GOVT CODE ANN., tit. 2, subtit. G app. A (Vernon 2005).
unless otherwise
noted.
ix
STATEMENT OF THE CASE
Type of Proceeding: Attorney Discipline
Petitioner/Appellee: The Commission for Lawyer Discipline
Respondent/Appellant: Jasper C. Rowe
Evidentiary Panel: State Bar of Texas District 06A-B2
Judgment: Disbarment; Attorneys Fees and Expenses of $2,808.20
Appellate Court: Board of Disciplinary Appeals (BODA)
Disposition on Appeal: Judgment affirmed
Violations found
(Texas Disciplinary
Rules of Professional
Conduct): Rule 1.01(b)(1): [A lawyer shall not neglect a legal matter
entrusted to the lawyer.]
Rule 1.04(a) [A lawyer shall not enter into an arrangement
for, charge, or collect an illegal fee or unconscionable fee.]
Rule 1.06(b)(2) [A lawyer shall not represent a person if the
representation of that person reasonably appears to be or
become adversely limited by the lawyers or law firms
responsibilities to another client or to a third person or by the
lawyers or law firms own interests.]
Rule 8.04(a)(3): [A lawyer shall not engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation]
Rule 8.04(a)(11) [A lawyer shall not engage in the practice
of law when the lawyer is on inactive status or when the
lawyers right to practice has been suspended or terminated.]
x
ISSUES PRESENTED
1. Is it an abuse of discretion for a trial court to deny a motion for continuance filed
less than two days prior to trial where the motion does not set forth a compelling
reason for a last-minute continuance and the motion does not satisfy the
prerequisites for such a motion?
2. Where an attorney acts as the independent executor for an estate as well as the
attorney for the independent executor, is the attorney engaged in pro se
representation?
3. Is an attorneys conduct immune to discipline due to the fact that the conduct
occurs during the attorneys representation of himself?
4. Does a trial court commit reversible error by excluding evidence where (1) the
proponent fails to make an offer of proof or bill of exceptions and (2) the evidence
is not controlling on a material issue?
5. Is recusal required merely because a partys witness is an acquaintance of the
judge?
6. Must an evidentiary panel always include at least one minority member if the
respondent attorney is a minority?
1
STATEMENT OF FACTS
2
On August 6, 1985, G.T. Miller executed a will which named Rowe as
independent executor of his estate (CR 437; Pet. Ex. 1). In a section entitled
EXECUTORS FEES, the will provided only for the reimbursement of actual,
reasonable out-of-pocket expenses (Pet. Ex. 1). G.T. Miller died on October 9, 2002
(CR 437).
On January 6, 2003, Cynthia Calhoun, Dallas County Clerk, issued letters
testamentary empowering Rowe to act as independent executor of the Miller estate (Pet.
Ex. 6). On the same date, Rowe signed a letter to himself discussing Rowes planned
legal representation of the estate and setting forth the financial and other terms under
which he would provide legal services to the estate, including his plan to collect legal
fees equal to at least one-third of the value of the estate (Pet. Ex. 6).
3
In June and July 2006, an application to remove Rowe as independent executor of
the Miller estate, which had been filed by Madison Miller, primary beneficiary of the
Miller estate, was heard (Pet. Ex. 6). At the conclusion of the hearing, the probate judge
announced his findings that Rowe should be removed as independent executor, all fees
received by Rowe should be returned to the estate, and a copy of the hearing transcript
should be delivered to the appropriate grievance committees and to the Commission (Pet.
Ex. 6).
2
Much of Rowes Statement of Facts should be disregarded because it is not supported by record
references. TEX. R. APP. P. 38.1(g).
3
Rowe had signed two similar letters shortly after G.T. Miller died (Pet. Ex. 2). One was
addressed to Madison Miller, primary beneficiary of the estate (Pet. Ex. 2). The other was
addressed to Rowe himself (Pet. Ex. 2).
2
On August 10, 2006, the probate judge entered findings of fact and conclusions of
law in the removal proceeding (Pet. Ex. 2). The findings included:
1. Jasper C. Rowe took from the Estate sums in excess of $100,000.00, claiming to
be entitled to those fees as attorney for the Estate. He further claimed to be entitled to
take another $100,000.00 in fees from the Estate when sufficient property of the
Estate had been sold to generate income to pay those fees.
2. The Court finds that Jasper C. Rowe did not have the right to take the fees he has
taken from the Estate and has no right to recover any further amount of fees.
3. Jasper Rowe, acting as executor of the Estate, entered into a contract with
himself under the terms of which he would act as attorney for the Estate and collect a
fee of one-third the value of the Estate. The Court finds that the Estate did not need to
hire an attorney because Jasper Rowe, executor, did not need legal advice to properly
administer the Estate. The Court finds that Jasper Rowes actions in hiring himself
and agreeing to pay himself a fee of one-third of the value of the Estate constitute
gross mismanagement of the Estate. The Court further finds that when Jasper Rowe,
as executor, paid himself based on the alleged contract for the services of Jasper
Rowe as attorney, that this payment constituted a clear and gross breach of his
fiduciary duties to the Estate, and that all payments made by Jasper Rowe to himself
from the assets of the Estate constitute gross mismanagement of the Estate.
4. The Court further finds that the fee charged by Jasper Rowe as attorney was
unconscionable and grossly excessive; and that the reasonable value of necessary
services to completely administer and close the Estate was less than $5,000.00.
5. The Court finds that Jasper Rowe has embezzled from the Estate by taking at
least $100,000.00 from the Estate without authority or justification.
6. The Court finds that Jasper Rowe gave $25,000.00 of the Estates money to one
of Jasper Rowes clients and did not receive either a promissory note, collateral, or an
enforceable promise to repay the money in return. The Court finds that in doing so,
Jasper Rowe was guilty of a gross conflict interest and of gross mismanagement of the
affairs of the Estate.
(App. 2; Pet. Ex. 2).
The probate judge signed an order removing Rowe as independent executor on
August 31, 2006 (Pet. Ex. 2). Rowe appealed the probate judges findings, but his appeal
3
was unsuccessful (Pet. Ex. 7). The Fifth Court of Appeals affirmed the probate judges
order of removal on January 9, 2008 (Pet. Ex. 7).
By letter dated February 7, 2007, Rowe was notified of the disciplinary allegations
which were being pursued by the Chief Disciplinary Counsel as a result of Rowes
conduct in connection with the Miller estate (CR 1-2). Rowe elected to have the
disciplinary allegations heard by an evidentiary panel rather than a district court (CR 5).
An evidentiary panel was assigned, and Rowe was provided with notice of the identities
of the panel members by letter dated March 16, 2007 (CR 11-14). The Commission filed
an evidentiary petition on April 30, 2007 (CR 15). Rowe filed an answer on May 31,
2007 (CR 27).
An evidentiary hearing was initially scheduled for November 8, 2007 (CR 64).
However, on October 5, 2007, the Commission requested a continuance because Rowe
had failed to respond to discovery requests (CR 86-89). The Panel Chair granted the
continuance on October 8, 2007 (CR 116).
Rowes evidentiary hearing was rescheduled for May 8, 2008 (CR 290). Rowe
received notice of the hearing date on March 19, 2008 (CR 291).
On the evening of May 5, 2008, Rowe filed a motion for continuance based on his
wifes serious illness (CR 369-76). The motion did not explain why the wifes illness
necessitated a continuance or explain why Rowe had waited until the last minute to
request the continuance (CR 369-76). It also did not include an affidavit from a medical
provider (CR 369-76).
4
The Commission opposed Rowes motion for continuance (CR 377-78). The
motion was denied on May 6, 2008 (CR 394). On the evening of May 6, 2008, Rowe
filed a motion for reconsideration of his motion for continuance (CR 398-400). The
Commission opposed the motion (CR 407-09), and it was denied on May 7, 2008 (CR
417).
Rowes evidentiary hearing took place on May 8, 2008 (RR 1). After a full
hearing, the Evidentiary Panel disbarred Rowe (CR 436-41). Rowe appealed his
disbarment to BODA (BODA CR 1-2). BODA affirmed the judgment of disbarment on
January 17, 2010 (BODA CR 331).
5
SUMMARY OF THE ARGUMENT
Rowe seeks the reversal of his disbarment based on seven arguments which have
no merit. He begins by arguing that the Evidentiary Panel improperly applied the
doctrine of res judicata. Rowe waived this issue by failing to raise it below. In addition,
there is nothing in the record to indicate the Panel applied the doctrine of res judicata in
this case.
Rowe next argues that the Evidentiary Panel erred by failing to grant his request
for a last-minute continuance. Contrary to Rowes argument, the denial of his motion for
continuance was proper because he did not satisfy the specific requirements that apply to
the type of continuance he requested. He also waited until just before the hearing date to
request a continuance, and he did not present a compelling reason for granting a last-
minute continuance. Therefore, the decision to deny the requested continuance was
neither arbitrary nor unreasonable.
Rowe next complains that the Evidentiary Panel incorrectly sanctioned him for
conduct which occurred during pro se representation. However, the record makes it clear
that Rowe was not engaged in pro se representation. The conduct at issue occurred
during his representation of the Miller estate. And even if Rowe had been representing
himself, he would not be immune to discipline because the disciplinary rules do not
exempt conduct that occurs during pro se representation.
Rowe also complains about the Panel Chairs decision to exclude testimony
offered by Rowe. Rowes complaints cannot succeed because he did not make an offer
of proof or bill of exceptions to show the substance of the excluded testimony.
6
Moreover, even if Rowe is correct in his belated assertion that the testimony would have
shown the testator approved Rowes unconscionable fee, its exclusion would not
constitute reversible error because such testimony would not have been controlling on a
material issue. Even a clients approval of an unconscionable fee would not save a
lawyer from discipline for charging or collecting such a fee.
Rowes complaints about the weight of the evidence cannot succeed because he
did not brief them adequately. To brief this issue properly, Rowe would have had to
discuss the evidence in question and explain why he believed it did not support the
judgment. He also would have had to cite to the record and to relevant authority. Rowe
did not take any of these steps.
Rowes complaints regarding the Panel Chairs refusal to recuse one member of
the Panel are untenable as well. The Panel Chair properly took evidence and heard
argument once Rowe complained about the members acquaintance with a Commission
witness. Because the evidence and argument failed to demonstrate a valid basis for
recusal, the Chair properly overruled Rowes objection.
Finally, Rowe argues that the judgment must be reversed because the Panel did not
include a member who is a minority. Rowe offers no legal authority supporting his
position that, if a respondent attorney is a minority, then at least one of the members of
the evidentiary panel assigned to preside over the disciplinary action must be a minority.
He also waited until nearly two months after his evidentiary hearing to raise this issue.
Therefore, like his other arguments, this one should be disregarded, and the Judgment of
Disbarment should be affirmed in all respects.
7
I. Standar d of r eview.
ARGUMENT
This Court reviews BODA's decisions under the substantial evidence rule. TEX. R.
DISCIPLINARY P. 2.28, 7.11. Under the substantial evidence rule, BODAs legal
conclusions are reviewed de novo. In re Birdwell, 20 S.W.3d 685, 687 (Tex. 2000).
Some issues raised by Rowe, such as the denial of his motion for continuance, are
determined under a more deferential standard. Where a more deferential standard applies
to an issue, the standard will be discussed in conjunction with the full discussion of the
issue.
II. Part II of the Texas Rules of Disciplinary Procedure governs administrative
proceedings in attorney disciplinary matters.
Attorney disciplinary proceedings generally commence with the filing of a
grievance against an attorney. See generally TEX. R. DISCIPLINARY P. 2.01-2.28 (App.
6). Once a grievance is filed, the Chief Disciplinary Counsel (CDC) must determine
whether to classify the grievance as (1) a complaint, which alleges conduct that, if true,
constitutes professional misconduct, or (2) an inquiry, which alleges conduct that, even
if true, does not constitute professional misconduct. TEX. GOVT CODE ANN. 81.073
(Vernon 2005); TEX. R. DISCIPLINARY P. 2.10. If the grievance is classified as an
inquiry, it is dismissed. TEX. GOVT CODE ANN. 81.074 (Vernon 2005); TEX. R.
DISCIPLINARY P. 2.10. If, however, a grievance is classified as a complaint, a copy of the
grievance is sent to the respondent attorney with notice that the respondent attorney must
8
respond to the allegations within thirty days after receipt of the notice. TEX. GOVT CODE
ANN. 81.075 (Vernon 2005); TEX. R. DISCIPLINARY P. 2.10.
For every grievance classified as a complaint, the CDC must determine whether
there is just cause no later than sixty days after the deadline for the respondent attorney
to respond to the allegations. TEX. GOVT CODE ANN. 81.075(a) (Vernon 2005); TEX.
R. DISCIPLINARY P. 2.12. Just cause is defined as such cause as is found to exist upon
a reasonable inquiry that would induce a reasonably intelligent and prudent person to
believe that an attorney either has committed an act or acts of Professional Misconduct
requiring that a Sanction be imposed, or suffers from a Disability. . . . TEX. R.
DISCIPLINARY P. 1.06U.
If the CDC determines there is no just cause, the CDC places the complaint on a
dismissal docket so that it may be presented to an evidentiary panel (a designated panel
of a district grievance committee) with a recommendation for dismissal. TEX. GOVT
CODE ANN. 81.075(b)(1) (Vernon 2005); TEX. R. DISCIPLINARY P. 2.13. On the other
hand, if the CDC determines there is just cause, the respondent attorney is provided with
an election notice, which gives notice of the alleged violations and an opportunity to
choose whether to have the allegations heard in district court or in an administrative
proceeding before an evidentiary panel. TEX. GOVT CODE ANN. 81.075(b)(2) (Vernon
2005); TEX. R. DISCIPLINARY P. 2.14, 2.15.
Unless the respondent attorney timely elects to proceed in district court, the
disciplinary matter must be assigned to an evidentiary panel for a hearing. TEX. R.
DISCIPLINARY P. 2.15. Within fifteen days of the earlier of the date that the respondent
9
attorney affirmatively elects to have the disciplinary matter heard by an evidentiary panel
or the day following the deadline for election, the chair of a grievance committee with
proper venue over the matter must appoint an evidentiary panel. TEX. R. DISCIPLINARY
P. 2.17.
The appointed evidentiary panel presides over the disciplinary matter and
generally functions as an administrative tribunal. See generally TEX. R. DISCIPLINARY P.
2.17. The allegations of misconduct are tried in an evidentiary hearing during which the
Commission and the respondent attorney offer evidence, examine witnesses, and present
argument. TEX. R. DISCIPLINARY P. 2.17L. The Commission has the burden of proving
the allegations by a preponderance of the evidence. TEX. R. DISCIPLINARY P. 2.17M.
After the evidentiary hearing, the evidentiary panel must issue a judgment within
thirty days. TEX. R. DISCIPLINARY P. 2.17P. If the evidentiary panel determines that
misconduct occurred, the judgment includes findings of fact and conclusions of law and
identifies the sanction(s) to be imposed. Id. Available sanctions include disbarment,
suspension, probation of suspension, public reprimand, private reprimand, restitution,
attorneys' fees, and direct expenses. TEX. R. DISCIPLINARY P. 1.06Y.
Either party may appeal an evidentiary panel's judgment to BODA under the
substantial evidence standard of review. TEX. R. DISCIPLINARY P. 2.24. BODA's
decision may be appealed to this Court. TEX. R. DISCIPLINARY P. 2.28, 7.11.
10
III. The Evidentiary Panel did not improperly consider the findings of the
probate court.
Rowe first argues that the Evidentiary Panel improperly applied res judicata
effect to the probate courts findings of fact (Appellants Br. 22). Rowe did not raise
this issue at any time in the proceedings below, nor did he raise it with BODA. As a
result, Rowe has waived the issue. See TEX. R. APP. P. 33.1 (requiring proper
presentation of issue to trial court before issue may be raised on appeal); Mack Trucks,
Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006) (holding that reviewing court may not
consider issues not properly raised by party except for fundamental error and
fundamental error exists only where face of record shows (1) trial court lacked
jurisdiction or (2) public interest is directly and adversely affected).
Rowe also has waived the issue by failing to brief it properly. His entire
discussion of the issue consists of six sentences with citations to only two cases, both of
which are of nebulous significance. He wholly fails to cite to the record. See TEX. R.
APP. P. 38.1(h) (requiring that appellate brief contain a clear and concise argument for
the contentions made, with appropriate citations to authorities and to the record);
Meachum v. Commn for Lawyer Discipline, 36 S.W.3d 612, 616 (Tex.App.Dallas
2000, pet. denied) (finding waiver where appellants argument was wholly conclusory
and without substantive analysis, discussion, or citation to relevant authority).
And even had Rowe not waived the issue, it is without merit. The Evidentiary
Panel did not treat the probate courts findings as if they were binding due to the doctrine
of res judicata. The Panel conducted a full hearing on the merits with regard to every
11
finding of misconduct cited in the judgment. Rowe does not offer a single cite to the
record to show otherwise. Rowes first issue should be overruled.
IV. The denial of Rowes motion for continuance was not an abuse of discretion
because a trial court has broad latitude to determine a motion for
continuance and Rowe failed to provide proper documentation to support his
request for a last-minute continuance.
Late in the evening on May 5, 2008, Rowe filed a motion requesting that the
evidentiary hearing set for May 8, 2008, be continued (CR 381-88). In the motion, Rowe
stated that he would be unable to attend the hearing because his seriously ill wife could
not be left alone (CR 381). Rowe offered no other basis for the requested continuance
(CR 381-82).
Late in the evening on May 6, 2008, shortly after his motion for continuance was
denied, Rowe filed a motion for reconsideration of his motion for continuance (CR 398-
400). In the motion for reconsideration, Rowe stated for the first time that he had been
unable to prepare for his evidentiary hearing due to his wifes illness.
As he argued before BODA, Rowe now argues that the evidentiary panel's denial
of his request for a continuance violated his due process rights because his wifes illness
prevented him from preparing for his evidentiary hearing and because he did not have
twenty days to respond to the Commissions amended evidentiary petition.
4
4
Rowe appears to have mistakenly believed he was required to file an answer to the amended
evidentiary petition. The procedural rules do not require a response to an amended petition.
However,
Rowes original motion for continuance did not state that his wifes illness prevented him
from preparing for the hearing, and neither his original motion nor his motion for
12
reconsideration stated that he needed additional time to respond to the amended
evidentiary petition.
The denial of a request for a continuance cannot not provide a valid basis for
overturning an administrative bodys action against a professional license unless the
denial was an abuse of discretion. State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984). An
abuse of discretion takes place only where it is clear from the record that the trial court
acted in an arbitrary and unreasonable manner and thereby disregarded the rights of a
party. Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986); Hawthorne v.
Guenther, 917 S.W.2d 924, 929 (Tex.App.Beaumont 1996, writ denied). In the instant
matter, there is no indication in the record that the Evidentiary Panel acted in an arbitrary
or unreasonable manner or disregarded Rowes rights. Their denial of Rowes request for
a continuance was reasonable under the circumstances.
First, Rowes motion for continuance did not satisfy the requirements that apply to
such a motion. When a motion for continuance is based on the absence of a party, the
requirements of Rule 252 of the Texas Rules of Civil Procedure must be satisfied.
Hawthorne, 917 S.W.2d at 929. Rowes motion did not satisfy the requirements of Rule
252 because it did not show that Rowe was needed to provide material testimony and that
there was no lack of diligence in attempting to secure the testimony. Id. The mere
absence of a party does not automatically entitle the party to a continuance. Vickery v.
Vickery, 999 S.W.2d 342, 362 (Tex. 1999); Humphrey v. Ahlschlager, 778 S.W.2d 480,
483 (Tex.App.Dallas 1989, no writ); Condry v. Mantooth, 460 S.W.2d 513
(Tex.Civ.App.Houston [1
st
Dist.] 1970, no writ).
13
In addition, although the alleged reason for Rowes inability to appear was his
wifes ill health, the motion was not supported by the affidavit of a doctor; only copies of
hospital admission records were attached, and those records did not show that a
continuance was necessary due to the wifes hospitalization. See Vickery, 999 S.W.2d at
363 (holding that TRCP 251 does not allow continuance to be granted except (1) where
movant demonstrates sufficient cause supported by affidavit, (2) by consent of parties, or
(3) by operation of law); Olivares v. State, 693 S.W.2d 486, 490 (Tex.App.San
Antonio 1985, writ dismd) (holding that without medical affidavit to support motion for
continuance, appellate court cannot hold that failure to grant continuance was abuse of
discretion).
Not only did Rowes motion fail to comply with the specific requirements for
continuance motions, it also was filed at the last minute and did not articulate a valid
basis for a last-minute continuance. Rowe complains that the Commissions trial counsel
purported to agree to the continuance but then, once his motion for continuance was filed,
unexpectedly opposed it. The record clarifies that the Commissions trial counsel sent a
letter to Rowe on April 24, 2008, telling Rowe that a letter from a doctor should
accompany his motion for continuance (CR 334). The April 24
th
However, Rowe waited nearly two weeks to file his motion for continuance, which
was faxed to the Commissions trial counsel only two days before the evidentiary hearing
letter makes it clear that
the Commissions trial counsel had spoken with Rowe and was under the impression that
a continuance was needed because Rowes wife was in the hospital and that a motion for
continuance would be filed without delay.
14
was scheduled to begin (CR 369-76). His failure to file the motion sooner created the
impression that he no longer needed a continuance and the evidentiary hearing would
begin on schedule.
Moreover, Rowes wife was no longer in the hospital at the time the motion was
filed. In the motion, Rowe claimed that he needed the continuance because his wife
could not be left alone, but he also indicated that she was receiving professional home
healthcare. And Rowe failed to state that there was no one else available to care for her
in his absence. Thus, the motion did not aver facts sufficient to justify a last-minute
continuance, and the decision to deny the continuance was reasonable.
Under the circumstances, BODA correctly declined to reverse the judgment based
on Rowes arguments regarding his motion for continuance. The motion for continuance
did not satisfy the procedural prerequisites for such a motion. The motion also did not
articulate a compelling reason for granting a last-minute continuance, especially since
Rowe clearly was aware of the relevant circumstances well before he finally filed his
motion. Due to Rowes failure to file a timely motion, the Commission prepared to
proceed and, therefore, would have been prejudiced by the granting of the continuance.
Simply put, the record provides a valid basis for the decision to deny the motion
for continuance, and its denial cannot serve as a basis for reversing the judgment.
15
V. The Evidentiary Panel did not erroneously sanction Rowe for conduct that
took place during his representation of himself because the record makes it
clear that the conduct at issue actually took place during Rowes
representation of the Miller estate and because even a lawyer engaged in pro
se representation is subject to the disciplinary rules.
Rowe next argues that the Evidentiary Panel had no jurisdiction to sanction him
because he was representing himself. This argument is without merit because the facts
show that Rowe actually represented the interests of the Miller estate. He was not
representing himself during the time in question. Moreover, Rowe would not be immune
from discipline even if his misconduct had occurred in the course of pro se
representation.
It is undisputed that Rowe served as independent executor of the Miller estate. It
also is undisputed that Rowe, as independent executor, hired himself as attorney and paid
the resulting attorneys fees from estate funds.
During his evidentiary hearing, Rowe testified that the services for which he was
compensated included drafting two applications for probate, appearing before the probate
court on behalf of the estate, defending a lawsuit against the estate, and defending an
application to remove the executor (RR 66). Based on these facts, Rowe obviously
represented the interests of the Miller estate. He was not acting in a pro se capacity.
In addition, the opinion from the Fifth Court of Appeals in the action to remove
Rowe as executor of the Miller estate identifies Rowe as the attorney for the estate. In
re Estate of Miller, 243 S.W.3d 831, 835, 841 (Tex.App.Dallas 2008, no pet.).
Similarly, the findings of fact entered by the trial court in the removal action show that
the trial court found Rowe to be the attorney for the estate. Those findings state that
16
Rowe entered into a contract with himself under the terms of which he would act as
attorney for the Estate (App. 2; Pet. Ex. 2). The findings also state that Rowe took
from the Estate sums in excess of $100,000.00, claiming to be entitled to those fees as
attorney for the Estate (App. 2; Pet. Ex. 2).
Perhaps most importantly, the record includes numerous documents wherein Rowe
refers to himself as attorney for the estate (App. 3; Pet. Ex. 2). Thus, Rowe himself
provided strong evidentiary support for the Panel to find that, rather than acting in a pro
se capacity, Rowe acted as attorney for the Miller estate.
Finally, even if Rowes misconduct had occurred in the course of pro se
representation, he still would be subject to the disciplinary rules and, therefore, could be
sanctioned by an evidentiary panel. Although the usual disciplinary case against an
attorney involves the attorneys representation of another person, the disciplinary rules
make it clear that a lawyer may be guilty of violating the disciplinary rules regardless of
whether his conduct took place in the course of a client-lawyer relationship. See TEX.
DISCIPLINARY R. PROF. COND. 8.04(a)(1) (prohibiting lawyer from violating the
disciplinary rules or knowingly assisting or inducing another person to do so or doing so
through the acts of another person whether or not such violation occurred in the course
of a client-lawyer relationship). This rule makes it clear that a pro se attorney is not free
to violate the rules that regulate his professional conduct merely because he is engaged in
the representation of himself rather than the representation of another. Cohn v. Commn
for Lawyer Discipline, 979 S.W.2d 694, 697 (Tex.App.Houston [14
th
Dist.] 1998, no
17
pet.); Diaz v. Commn for Lawyer Discipline, 953 S.W.2d 435, 438 (Tex.App.Austin
1997, no writ).
For these reasons, BODA correctly overruled Rowes argument that, because
Rowe represented himself, the Evidentiary Panel had no jurisdiction to sanction Rowes
conduct. This Court, too, should overrule Rowes argument.
VI. The Judgment of Disbarment should not be reversed on the basis of Rowes
arguments regarding the exclusion of testimony because Rowe failed to
demonstrate to the Panel what the substance of the testimony would have
been; the testimony was not controlling on a material issue; and it is not likely
that the exclusion of the testimony, even if erroneous, resulted in the rendition
of an improper judgment.
Rowe next argues that the judgment should be reversed because of two evidentiary
rulings disallowing certain testimony during his evidentiary hearing. Rowe clearly failed
to preserve this issue for appeal because he failed to make an offer of proof or a bill of
exceptions, one of which must appear in the record in order for an appellant to
successfully challenge a trial courts exclusion of evidence. In addition, the evidence
about which Rowe complains was not controlling on a material issue. Finally, Rowe has
failed to show that the exclusion of the testimony in question probably caused the
rendition of an improper judgment.
A trial court has broad discretion to make evidentiary rulings. Owens-Corning
Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Thus, an evidentiary ruling
must be upheld unless the ruling was made in an arbitrary or unreasonable manner
without reference to any guiding rules or principles. Id. Moreover, an evidentiary ruling
must be upheld if there is any legitimate basis for the ruling. Id.
18
Furthermore, before reversing a judgment based on the erroneous exclusion of
evidence, an appellate court must determine that the appellant properly preserved the
issue for appeal by demonstrating, on the record, what the evidence was. TEX. R. EVID.
103(a)(2). The appellate court also must determine (1) that the excluded evidence was
controlling on a material issue and was not cumulative of other evidence and (2) that the
erroneous exclusion of the evidence probably caused the rendition of an improper
judgment. Tex. Dept of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000).
To adequately demonstrate the substance of the excluded testimony for the record,
the proponent must at least describe the substance of the testimony to the trial court once
the opponents objection is sustained. In re N.R.C., 94 S.W.3d 799, 805-06 (Tex.App.
Houston [14
th
The transcript from the entirety of Rowes case in chief is attached to this brief
(App. 4; RR 123-38). Nowhere in the transcript does there appear a description of the
testimony which was excluded.
Dist.] 2002, pet. denied). The proponent may not simply state the reasons
for the testimony or explain why it is admissible he must actually describe the content
of the testimony in sufficient detail to allow the trial court to make an intelligent ruling
and allow the appellate court to determine both whether the ruling was erroneous and its
impact on the judgment. Id.
Rowes first witness was Pamela Atchison. Rowe complains that she was
prevented from testifying about the testators intentions regarding his estate. On that
issue, Rowe asked Atchison, Could you relate to us whether or not what was the
nature of Mr. Millers attempted disposition of his estate? Would you relate to us what
19
Mr. Millers arrangements were with the disposition of the estate, to your knowledge?
(RR 125). The Commissions counsel objected and described the basis of the objection
(RR 125-26). Mr. Rowe then responded by saying, I would suggest that in this
particular case in this case we are there has been an allegation in the Petition that
there were exorbitant fees charged by the attorney to the estate. My argument is that
those the fees were charged, but they were charged only because of a written document
that was put together by Mr. G.T. Miller (RR 126). The Chair then asked for a more
specific response, and Rowe stated only, My response is that is not its hearsay. But in
the case of hearsay, its good hearsay insofar as the estates the testators state of mind
at the time he was making his will (RR 126). Rowe offered further commentary
regarding the testimony, but he never described the substance of the testimony (RR 126-
27).
The other exchange about which Rowe complains is similar. In his own
testimony, Rowe described conversations he had with the testator regarding the intended
distribution of his estate (RR 131-33). During the course of the testimony, the
Commissions counsel objected three times on the basis of hearsay (RR 131-33). Each of
the objections was sustained (RR 131-33). Rowe never offered any argument regarding
the objections or the Panel Chairs decision to sustain them (RR 131-33). He also failed
to provide any description of testimony he supposedly was prevented from presenting as
a result of the sustained objections (RR 131-33).
Rowe did not make an offer of proof or bill of exceptions to show the substance of
the excluded testimony of Atchison or the substance of his own excluded testimony.
20
Rowe now claims the excluded evidence would have proven that the testator created
written instructions for Rowe to pay himself one-third of the proceeds of the estate as
compensation for representing the estate and that those written instructions were
subsequently lost by the testator (Appellants Br. 25). But in order to challenge the
exclusion of the testimony on appeal, Rowe was required to preserve the record by at
least describing the substance of the testimony to the Panel once the Commissions
objection was sustained. N.R.C., 94 S.W.3d at 805-06. Because he did not do so, his
complaints regarding the excluded testimony have been waived.
In addition, assuming Rowes description of the testimony is accurate, the Panel
Chairs exclusion of the testimony would not provide a basis for reversal of the judgment
because the testimony was not controlling on a material issue. The evidence in question
presumably was offered to demonstrate that Rowes fee was not unconscionable. Rowes
theory in offering the evidence seems to have been that as long as a fee is approved, it
cannot serve as a basis for discipline under TDRPC 1.04(a).
Rowes theory is incorrect because to prove a violation of TDRPC 1.04(a), the
Commission must demonstrate that a lawyer entered into an arrangement for, charged, or
collected an illegal fee or an unconscionable fee. TEX. DISCIPLINARY R. PROF. COND.
1.04(a). The disciplinary rules specifically state that a fee is unconscionable if a
competent lawyer could not form a reasonable belief that the fee is reasonable. Id.
Thus, the elements of proof of a violation of TDRPC 1.04(a) do not include proof that the
respondent attorneys fee lacked approval by the party that was responsible for payment
of the fee. Likewise, such proof would not exonerate the respondent attorney from
21
violating TDRPC 1.04(a) by charging and collecting an unconscionable fee. In this case,
even if Rowe had produced written instructions showing the testator intended that he pay
himself one-third of the proceeds of the estate, it would not have absolved him of
charging and collecting a fee that a competent lawyer could not reasonably view as
reasonable.
And even if the Panel Chair erred by excluding the testimony, Rowe has not
demonstrated that such error probably caused the rendition of an improper judgment. See
TEX. R. APP. P. 61.1 (prohibiting reversal except where error probably caused rendition
of improper judgment or probably prevented proper presentation of case to appellate
courts). A successful challenge of evidentiary rulings usually requires the complaining
party to show that the judgment turns on the particular evidence excluded or admitted.
Able, 35 S.W.3d at 617.
In this case, it would be unreasonable to conclude that the exclusion of the
testimony in question probably resulted in an improper judgment. In light of the wills
clear limitations on executors fees, testimony that the testator actually intended for Rowe
to collect hundreds of thousands of dollars for his service as executor/attorney would
have been incredible, especially coming from Rowe. And as discussed above, this
testimony would not have been controlling on a material issue. Thus, it is clear that the
Panel Chairs decision to exclude the testimony of Rowe and Atchison, even if erroneous,
could not have caused the rendition of an improper judgment.
22
VII. Rowe waived his argument regarding the weight of the evidence by failing to
brief the issue properly.
Rowe next offers a very brief, conclusory argument regarding the weight of the
evidence. His argument cannot succeed because it clearly is insufficient to present error
for appellate review.
Rowes entire argument on this issue consists of three sentences. He offers only
conclusory statements unsupported by citation to relevant legal authority. He does not
discuss specific evidence. He provides no substantive analysis whatsoever. As such, this
portion of Rowes brief is insufficient to present error. See TEX. R. APP. P. 38.1(h)
(requiring that appellate brief contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record); Smith v. Commn for
Lawyer Discipline, 42 S.W.3d 362, 364 (Tex.App.Houston [14th Dist] 2001, no pet.)
(affirming judgment because appellant presented nothing for review in that he failed to
specify how evidence did not support judgment and failed to provide legal authority,
argument, or evidence demonstrating how trial court erred); see also Worldpeace v.
Commn for Lawyer Discipline, 183 S.W.3d 451, 460 (Tex.App.Houston [14
th
Dist.]
2005, pet. denied) (providing that failure to offer argument or citations to record or
relevant authority waives complaint on appeal); San Saba Energy, L.P. v. Crawford, 171
S.W.3d 323, 338 (Tex.App.Houston [14
th
Dist.] 2005, no pet.) (holding that although
appellate courts interpret briefing requirements liberally, appellant still must offer
specific argument and analysis and cite to record and authorities in support of appellants
arguments). By failing to brief this issue adequately, Rowe has waived it. Smith, 42
23
S.W.3d at 364; Dolenz v. State Bar of Tex., 72 S.W.3d 385, 388 (Tex.App.Dallas 2001,
no pet.); Meachum v. Commn for Lawyer Discipline, 36 S.W.3d 612, 616 (Tex.App.
Dallas 2000, pet. denied).
VIII. Contrary to Rowes argument, a panel members acquaintance with a witness
called by the Commission did not require the panel members recusal.
Rowe also argues that he was denied a fair trial by the Panel Chairs failure to
recuse Gail Douglas, a public member, from the consideration of Rowes case due to
Douglas acquaintance with one of the witnesses called by the Commission. Like
Rowes other arguments, this one is meritless because the record reveals there was no
valid basis for the forced recusal of Douglas.
At the heart of this issue is whether the Evidentiary Panel responded properly to
Rowes oral objection to Douglas continued participation in the evidentiary hearing once
Douglas, upon learning that John Polewski was being called to testify, announced that he
knew Polewski. An examination of the law surrounding recusal illustrates that the Panel
responded properly to Rowes objection.
The Texas Rules of Disciplinary Procedure (TRDP) allow for the recusal of an
evidentiary panel member. TRDP 2.06 provides that a panel member for an evidentiary
hearing is subject to recusal if a district judge would, under similar circumstances, be
disqualified or recused. TEX. R. DISCIPLINARY P. 2.06. In order to seek recusal under
TRDP 2.06, a party must, within ten days after receiving notice of an assigned panel
members identity or within ten days after learning of a ground for recusal, bring to the
panels attention any alleged grounds for recusal. TEX. R. DISCIPLINARY P. 2.06.
24
The Texas Rules of Civil Procedure (TRCP) provide a different mechanism for the
recusal of a judge in a civil proceeding. It is not clear that the TRCP recusal procedure
would apply in a disciplinary proceeding before an evidentiary panel, especially where
the TRCP recusal procedure is inconsistent with the Texas Rules of Disciplinary
Procedure.
5
The TRCP recusal procedure requires that a party seeking the recusal of a judge
before whom a case is pending must file a verified motion stating grounds why the judge
should not sit in the case. TEX. R. CIV. P. 18a(a). The recusal motion must be filed at
least ten (10) days before the date set for trial or other hearing before the judge. TEX. R.
CIV. P. 18a(a). The motion also must state with particularity the grounds why the judge
before whom the case is pending should not sit and must set forth such facts as would
be admissible in evidence. . . . TEX. R. CIV. P. 18a(a).
However, in light of TRDP 2.06s incorporation of the recusal and
disqualification standards of the Texas Rules of Civil Procedure, it is arguable that
provisions of the TRCP recusal procedure could be called upon to provide guidance in
areas where the Texas Rules of Disciplinary Procedure are silent.
Once a party files a motion to recuse a judge before whom a case is pending, the
judge must either recuse himself or refer the motion to the presiding judge of the
administrative judicial district before any further proceedings in the case. TEX. R. CIV. P.
18a(c). If the recusal motion is referred to the administrative judge, the judge before
whom the case is pending may not take further action in the case except where there is
5
Unlike TRDP 3.08, which states that the Texas Rules of Civil Procedure apply to district court
trials except as varied by these rules, the rules governing evidentiary proceedings do not
include a similar provision.
25
good cause for doing so and such good cause is stated in the order in which further action
is taken. TEX. R. CIV. P. 18a(d). The administrative judge must immediately set a
hearing before himself or another judge assigned by him to hear the recusal motion. TEX.
R. CIV. P. 18a(d). The denial of a recusal motion may be reviewed on appeal under an
abuse of discretion standard, but the granting of a recusal motion is not reviewable. TEX.
R. CIV. P. 18a(f).
The TRDP and TRCP recusal procedures share a number of common elements.
Importantly, both require that grounds for recusal be brought to the attention of the
adjudicative body without delay. The TRDP do so by requiring that any grounds for
recusal of a panel member be brought to the attention of the evidentiary panel assigned to
the disciplinary matter within ten (10) days after the objecting partys receipt of
notification of the panel members identity. TEX. R. DISCIPLINARY P. 2.06. The TRCP
similarly require that a motion to recuse be filed by the objecting party at least ten (10)
days prior to the date set for trial or other hearing before the court and that the motion
must state the grounds for recusal with particularity and set forth such facts as would
be admissible in evidence. TEX. R. CIV. P. 18a(a). Each set of rules allows for an
exception to the ten-day rule when a party learns of the reason for recusal after the ten-
day deadline has passed. TEX. R. DISCIPLINARY P. 2.06; TEX. R. CIV. P. 18a(e). Under
both the TRDP and TRCP then, recusal is initiated by the objecting partys bringing the
basis for objection to the attention of the adjudicatory body so as not to unreasonably
delay the proceedings.
26
In this case, Rowe objected to Douglas continued participation in his evidentiary
proceeding as soon as he learned of the basis for his objection. Therefore, his objection
was timely. The Panel Chair responded reasonably to the objection by ruling on the
objection himself after allowing the Commissions trial counsel and Rowe to question
Douglas about his relationship with Polewski and his ability to decide the case
impartially. That examination is attached hereto in its entirety (App. 5). It demonstrates
that Douglas knew Polewski as the result of both mens membership in the DeSoto
Chamber of Commerce and their membership in the same church (App. 5; RR 37-40). It
also demonstrates that Douglas and Polewski were social acquaintances rather than
friends and that they had very little contact with one another (App. 5; RR 37-40). And it
demonstrates that Douglas was confident his acquaintance with Polewski would have no
impact on his ability to be impartial in judging Rowes case (App. 5; RR 39, 40).
Based on the evidence of record regarding Douglas relationship with Polewski,
there was no basis for concluding that Douglas impartiality might reasonably be
questioned or that he had a personal bias or prejudice concerning the subject matter or a
party or personal knowledge of disputed evidentiary facts. See TEX. R. CIV. P. 18b(2)
(setting forth grounds for disqualification and recusal of judges); TEX. R. DISCIPLINARY
P. 2.06 (incorporating recusal standards of TRCP 18b). Therefore, the Panel Chair
correctly overruled Rowes objection to Douglas. The ruling clearly did not constitute an
abuse of discretion.
Rowes brief asserts that Douglas should have been recused merely because of his
acquaintance with Polewski, but Rowe cites to no authority supporting such a blanket
27
assertion. He cites only a single case, Rector v. Tex. Alcoholic Beverage Commn, 599
S.W.2d 800 (Tex. 1980). The cited case is not on point. It addresses a county courts
failure to require that witnesses be sworn and failure to allow the appellant to cross-
examine witnesses. The Panel Chairs denial of Rowes oral motion to recuse Douglas,
after a thorough examination of the proffered basis for recusal, cannot be compared to the
Rector courts clear violation of a partys due process rights. In this case, the Panel Chair
correctly took evidence on the recusal issue and correctly overruled Rowes objection
once it was clear that no legitimate basis for recusal existed.
IX. There is no requirement for an evidentiary panel to include at least one
member who is in the same racial minority as the respondent attorney.
Rowes final argument is that the Evidentiary Panel erred in refusing to grant him
a new trial on the ground that the Panel did not include a black or minority member.
Rowe offers no legal authority which supports his contention that the racial composition
of an evidentiary panel must reflect the respondent attorneys minority background. In
addition, Rowe did not make an objection on this basis upon learning of the Panels racial
composition. He raised it for the first time in his motion for new trial, which was filed
nearly two months after Rowes evidentiary hearing. See TEX. R. APP. P. 33.1(a)
(requiring timely request, objection, or motion to preserve complaint for appellate
review).
Because he offers no legal authority in support of his position on this issue and
because he failed to raise the issue timely, this Court should overrule Rowes final issue.
28
PRAYER
Wherefore, Premises, Arguments, and Authorities Considered, Appellee, the
Commission for Lawyer Discipline, prays that the judgment of the District 06A-B2
Evidentiary Panel of the State Bar of Texas be affirmed.
RESPECTFULLY SUBMITTED,
LINDA A. ACEVEDO
CHIEF DISCIPLINARY COUNSEL
CYNTHIA CANFIELD HAMILTON
SENIOR APPELLATE COUNSEL
OFFICE OF THE CHIEF DISCIPLINARY COUNSEL
STATE BAR OF TEXAS
P.O. BOX 12487
AUSTIN, TEXAS 78711
TELEPHONE: 512.427.1350; 1.877.953.5535
FAX: 512.427.4167
___________________________________
CYNTHIA CANFIELD HAMILTON
STATE BAR CARD NO. 00790419
ATTORNEY FOR APPELLEE
CERTIFICATE OF SERVICE
This is to certify that the above and foregoing Brief of Appellee, the Commission
for Lawyer Discipline, has been served on Jasper C. Rowe, P.O. Box 141954, Irving,
Texas 75014, by certified mail, return receipt requested, by depositing same, enclosed in
a postpaid and properly addressed wrapper, in an official depository under the care and
custody of the United States Postal Service on the 17
th
day of June 2010.
_____________________________
CYNTHIA CANFIELD HAMILTON
No. 10-0092
_______________
In The
Supreme Court of Texas
_______________
JASPER C. ROWE,
APPELLANT
V.
COMMISSION FOR LAWYER DISCIPLINE,
APPELLEE
_______________
On Appeal from the Board of Disciplinary Appeals
Of the Supreme Court of Texas
BODA No. 42935
_______________
APPENDIX TO BRIEF OF APPELLEE
COMMISSION FOR LAWYER DISCIPLINE
____________________
LINDA A. ACEVEDO
CHIEF DISCIPLINARY COUNSEL
CYNTHIA CANFIELD HAMILTON
SENIOR APPELLATE COUNSEL
OFFICE OF THE CHIEF DISCIPLINARY COUNSEL
STATE BAR OF TEXAS
P.O. BOX 12487
AUSTIN, TEXAS 78711-2487
512.427.1350; 1.877.953.5535
FAX: 512.427.4167
No. 10-0092
_______________
In The
Supreme Court of Texas
_______________
JASPER C. ROWE,
APPELLANT
V.
COMMISSION FOR LAWYER DISCIPLINE,
APPELLEE
_______________
On Appeal from the Board of Disciplinary Appeals
Of the Supreme Court of Texas
BODA No. 42935
_______________
APPENDIX TO BRIEF OF APPELLEE
COMMISSION FOR LAWYER DISCIPLINE
____________________
TO THE HONORABLE BOARD OF DISCIPLINARY APPEALS:
Appellee, the Commission for Lawyer Discipline, a committee of the State Bar of
Texas, submits these relevant record excerpts in support of its Brief:
APPENDIX 1: Judgment of Disbarment (CR 443-48)
APPENDIX 2: Findings of Fact and Conclusions of Law entered by probate court (Pet.
Ex. 2)
APPENDIX 3: Documents wherein Rowe identified himself as the attorney for the
Miller estate (Pet. Ex. 2)
APPENDIX 4: Testimony offered by Rowe (RR 123-38)
APPENDIX 5: Examination of panel member regarding recusal (RR 37-41)
APPENDIX 6: Part II, Texas Rules of Disciplinary Procedure
1
)
BEFORE THE. DISTRICT 06A GRIEVANCE COMMITTEE
EVIDENTIARY PANEL 06AwB2
STATE.8AR OF TEXAS
. COMMISSION FOR
DISCIPLINE,
.
V.
JASPERC. ROWE,
Respondent
JUDGMENT OF DISBARMENT
. Parties .and Appearance
FILE NO. 00100630711
On May 8, 2008, came to be heard the above styled and cause.
Petitioner, Commission for Lawyer Discipline, appeared by and through its attorney of
. record and announced ready. Respondent, Jasper C. Rowe, Texas Bar Number 17333000
(hereinafter referred to as "Respondent"), appeared in person and announced ready.
Jurisdiction and Venue
The Evidentiary Panel 06A-B2, having been duly appointed to hearthis complaint by
the chair ofthe Grievance Coml1)ittee for State Bar of Texas District 06A, finds that it has
jurisdiction over the parties and the subject matter of this action and that venue is proper.
Professional Misconduct
The Evidentia!y panel, having considered all ofthe pleadings, evidence, stipulations
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and .argument, finds Respondent has committed Professional Misconduct as defined by
" Rule 1.06(V) of the Texas Rules of Pisciplinary Procedure.
Findings of Fact
The Evidentiary Pane!", having cons"idered the pleadings, evidence and argument of
" coun"sel, makes the following findings of fact and conclusions of law:
JUDGMENT OF DISBARMENT
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Respondent is an attorney licensed to practice law in Texas and is a member of
the State Bar of Texas.
Respondent resides in and maintains his principal place of practice in Dallas
County, Texas ..
On August 6, 1985"Garcia Talmadge Miller (hereinafter referred to as "G.T.
Miller") exequted a Will naming, Respondent as Independent Executor for the
Estate of Garcia Talmadge Miller (hereinafter referred to as "Miller Estate"). The
Will provided the Executor would serve without co'mpensation. On
October 9, 2002, G.T. Miller died. '
4. While administratively suspe'nded, on October 26,2002, Respondent drafted
and signed a letter agreement with Madison Milier, the main beneficiary of the
Will, to provide legal assistance in probating the Wills of G.T. and Lucy Miller
(Lucy preceded her husband in death). On January 3, 2003, by Letters
TestamentarY, Respondent was appointed lridependent Executor
5. On January 6, 2003, while administratively suspended, Respondent, as
Independent Executor, hired himself as attorney to represent-the Miller Estate.
The January 6,2003 agreement between Respondent as Independent Executor,
and himself as attorney for the Independent Executor, gives Respondent a legal
fee of 1/3 the estate value as a flat fee for legal services rendered.
6. As attorney for the Independent Executor, Respondent failed to file an Inventory
and Appraisement for the Miller Estate until August 13, 2004, after the probate
court entered an order to show cause.
7. Based on Respondent's advice, the Miller Estate invested funds with Kim Green,
another client of Respondent. These funds have not been repaid. Respondent
has refused to disclose the terms of the investment citing the attorney-client
privilege 'of Kim Green. Kim Green also owes Respondent legal fees of
$200,000; The interests of .the Independent Executor and Kim Green are
adverse to each other and adverse to the"interests of Respondent.
8. On March 21, 2006, and March 24, 2006, respectively, Madison Miller filed an
application for 'an accounting and . distribution of the Miller Estate and an
application to remove Respondent as Independent Executor and have a
successor appointed.
9. On June 22, 2006, during the trial on the application to remove Respondent as
Independent Executor, Respondent .admitted under oath that he had paid'
himself $96,000 as attorney for the Independent Executor for the Miller Estate.
10. On August 1, 2Q06, Respondent was' removed as Independent Executor. The
. courtJound the fee charged by Respondent as attorney was unconsci<:mable and
grossly excessive
JUDGMENT OF DISBARMENT
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11. The Chief Disciplinary Counsel of the State Bar of 'Texas has incurred
reasonable attorneys' fees and direct.expenses associated with this Disciplinary
Proceeding in the amount of Two Thousand Eight Hundred Eight and no/100 .
Dollars ($2,808.20).
Conclus.ions of law
The Evidentiary Panel concludes that, based on foregoing findings of fact, the
following Texas Disciplinary Rules. of Professional Conduct have' been violated: . Rules
1.01(b)(1), 1.04(a), 1.06(b)(2);8.04(a)(3) and 8.04(c;l)(11).
Sanction
The Evidentiary Panel, having found Respondent has committed Professional
. Misconduct, heard and considered additional evidence regarding the appropriate sanction
to be imposed. 'against Respondent. After hearing all'evidence and argument and after
having considered the factors in Rule 2.18 of the Texas Rule of Disciplinary Procedure, the
Evidentiary Panel finds said findings and cOl')clusions support a judgment of
DISBARMENT.
Disbarment .
It is therefore ORDERED, ADJUDGED and DECREED that effective May 8,2008,
Respondent, Jasper C. Rowe, State Bar Number 17333000, is hereby DISBARRED from
the practice of law in the State of Texas.
It is further ORDERED. Respondent is prohibited from practicing law in Texas,
holding' himself out as an attorney at law,. performing any legal services for others,
accepting any fee directly or indirectly for legal.services, appearing as counselor in any
. representative capacity in any proceeding in any Texas court or before any administrative
body or holding himself out to others or using his n a m ~ , in any manner, in conjunction with
the words "attorney at law," "attorney;" "counselor at law," or "lawyer."
JUDGMENT OF DISBARMENT
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Notification
It is ORDERED Respondent shall immediately notify each of his current
clients in writing of this disbarment. In addition to such notification, Respondent is
ORDERED to return any files, papers, unearned monies and other property belonging to
clients and former clients in the Respondent's possession to the respective clients or
former clients or to another attorney at the client's or former client's request. Respondent
is.fuither"ORDERED to file with the Bar.ofTexas, Chief Disciplinary CQunsel, 6300
La Calma, Suite 300, Austin, Texas 78752, within thirty (30) days of the signing of this
judgment by the Panel Chair, an affidavit stating that all current clients have been notified
of Respondent's disbarment and that all files, monies and other property belonging
to all clients and former clients have. been returned as ORDERED herein.
It is further ORDERED Respondent shall, on or before thirty (30) days from the
signing ofthis judgment by the Panel Chair, notify in writing each and every justice of the
peace, judge, magistrate, administrative judge or officer and chief justice of each and every
court or tribunal in which Respondent has any matter pending of the terms of this
judgment, the style and cause number of the pending matter(s), and the name, address
and telephone-n.umber of the client(s) is .representing. Resp&ndent isfu rther
ORDERED to file with the State Bar of Texas; Chief Disciplinary Counsel, 6300 La Calma,
Suite .300, Austin, Texas 78752, within thirty (30) days of the signing of this judgment by
the Panel Chair, an affidavit stating that each and every justice of the peace, judge,
magistrate, administrative judge or officer and chief justice has received written notice of
the terms of this judgment.
JUDGMENT OF DISBARMENT
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Surrender of License
It is further ORD'ERED Respondent shall, within thirty (30) days ofthe signing ofthis
judgment by the Panel Chair, surrender his law license and permanent State Bar Card to
the State Bar of Texas, Chief Disciplinary,Counsel, 6300 La Calma, SlJite 300, Austin,
Texas .18752, to be forwarded to the Supreme Court of the State of Texas ...
Attorney's Fees and Expenses
,It is further ORDERED Respondent shall, pay all reasonable and necessary
attorney's fees and direct expenses to the State Bar of Texas in the amount of Two
Thousand Eight Hundred Eight and noli 00 Dollars ($2,808.20). The payment shall be due
and payable on or before June 9, 2008, and shall be made by certified or cashier's check
or money order. Respondent shall forwarp the funds, made payable to the State Bar of
Texas, to the State Bar of Texas, Chief Disciplinary Counsel, 6300 La Calma, Suite 300,
Austin, Texas 78752.
[t is further ORDERED that all amounts ORDERED herein are due to the
misconduct of Respondent and are assessed as a part of the sanction in accordance with
Rule 1.06(Y) of the Texas Rules of DisCiplinary Procedure. Any not paid shall
accrue interest at the maximum legal rate per annum until paid and the State Bar of Texas
shall have all writs and other post-judgment remedies against Respondent in order to
coiled all unpaid amounts.
Publication
It is further, ORDERED this disbarment shall be made a matter of record and
appropriately published in accordance with the Texas Rules of Disciplinary Procedure.
Judgment of Disbarment
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. Condition.s Precedent to Reinstatement
It is further ORDERED payment ofthe foregoing restitution and attorneys fees and
expeflses amounts shall be a condition to any consideration of reinstatement
from disbarment as provided by Rules 2.19, 2.20 and 11.02(0) of-the Texas Rules'of
Disciplinary Procedure.
Other Relief
All requested relief not expressly granted herein is expressly DENIED.
t1P
SIGNED this dr-day of
:
,2008.
EVIDENTIARY PANE;L
DISTRICT NO. 06A-B2
STATE BAR OF TEXAS
cG? .
. Stoller
District 06A-B2 Presiding Member
Judgment of Disbarment
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EXHIBIT A
1. Jasper C. Rowe was appointed executor of the Estate of Garcia Talmadge.
Miller and letters testamentary were.issue.d on January 6,2003.
2. The Will of Garcia Talmadge Miller was admitted to probate in this Court
and was not challenged by any person. That Will does not provide for the payment of
any fees to Jasper C. Rowe for serving as executor of the Estate, and Mr. did not
apply to this Court for any fees for serving as executor.
3. Jasper C. Rowe took from the Estate sums in excess of $100,000.00,
claiming to be entitled to those fees as attorney for the Estate. He further claimed to be
entitled to take another $100,000.00 in fees from the Estate when sufficient property of
the Estate had been sold to generate income to pay those fees.
4. The Court finds that Jasper C. Rowe did not have the right to take the fees
he has taken from the Estate and has no right to recover any further amount of fees. The
Court further fmds that the fees claimed by Jasper C. Rowe are not authorized by the Will
or by law. The Court further finds that any claim by Jasper C. Rowe that he is entitled to
money from the Estate under the terms of an oral agreement with Garcia Talmadge Miller
is neither credible nOr enforceable under Texas law.
. 5. The Estate of Garcia Miller could and should have been fully administered
and closed within three months of January 6, 2003. The delay in administration and
Closing Of the Estate constitutes gross mismanagement of the affairs of the Estate.
6. Jasper Rowe, acting as executor of the Estate, entered into a contract"
with himself under the terms of which he would act as attorney for the Estate and collect
a fee of one-third the value' of the Estate. The Court finds that the not need to
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