Robert S. Bennett v. Commission for Lawyer Discipline ( 2018 )

Affirmed and Memorandum Opinion filed December 21, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00521-CV
ROBERT S. BENNETT, Appellant
V.
COMMISSION FOR LAWYER DISCIPLINE, Appellee
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2013-56866
MEMORANDUM OPINION
In this attorney disciplinary case, we previously remanded for the trial court
to reconsider the appropriate sanction. Appellant Robert S. Bennett appeals from a
final judgment signed following a new sanctions hearing. The trial court ordered
that Bennett be suspended for a period of two years, six months, and three days,
including two years and three days of active suspension and six months of probated
suspension.
In his first issue, Bennett argues that there is factually insufficient evidence to
support the trial court’s decision to impose the partially probated suspension. In his
second issue, Bennett asserts that the trial court abused its discretion when it imposed
that suspension on him. We overrule these issues because Bennett has not
demonstrated that the length of the suspension was an abuse of the trial court’s
discretion to impose an appropriate suspension for engaging in professional
misconduct.
In his third issue, Bennett contends that the Commission’s attorney engaged
in misconduct during the trial that tainted the proceedings to such an extent that “no
sanction should be imposed upon him.” Bennett has failed to point to where in the
record (1) the alleged misconduct occurred, (2) he objected to that misconduct, and
(3) he obtained a ruling on that objection. We overrule this issue because Bennett
failed to preserve error regarding the alleged misconduct by the Commission’s
attorney. We therefore affirm the trial court’s judgment.
BACKGROUND
As mentioned above, we have seen this matter before. See Bennett v.
Commission for Lawyer Discipline, 489 S.W.3d 58 (Tex. App.—Houston [14th
Dist.] 2016, no pet.). We remanded “the case to the trial court for reconsideration
of the appropriate sanction to be imposed on Bennett as a result of his violation of
only Rule 3.02 of the Texas Disciplinary Rules of Professional Conduct.” Id. at 75.
The trial court did not hear additional evidence during the ensuing sanctions hearing.
Instead, the trial court based its sanction decision on the record from the initial bench
trial as well as additional argument of counsel, including Bennett appearing pro se.
After hearing argument from both sides, the trial court ordered that Bennett be
suspended for a period of two years, six months, and three days, including two years
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and three days of active suspension and six months of probated suspension.1 This
appeal followed.
Our previous opinion includes the pertinent background facts and we do not
repeat those here. See id. at 63–65. Instead, we proceed directly to a resolution of
Bennett’s issues.
ANALYSIS
In our previous opinion, we affirmed the trial court’s determination that
Bennett violated Rule 3.02 of the Texas Disciplinary Rules of Professional Conduct.
Id. at 72. Although Bennett spends much time in this appeal re-arguing the question
whether he engaged in professional misconduct violating Rule 3.02, that
determination was affirmed in the first appeal, is not at issue in this second appeal,
and will not be revisited. See Paradigm Oil, Inc. v. Retamco Operating, Inc., 372
S.W.3d 177, 182 (Tex. 2012). We therefore examine only Bennett’s challenges to
the sanction imposed by the trial court on remand.
I. The trial court did not abuse its discretion when it imposed a partially
probated suspension on Bennett.
In his first issue, Bennett argues there is factually insufficient evidence to
support the sanction imposed by the trial court. In his second issue, Bennett asserts
that the trial court abused its discretion when it imposed the partially probated
suspension as a sanction. Because the proper standard to review a trial court’s
assessment of sanctions for an attorney’s professional misconduct is abuse of
discretion, we address these issues together. See Tex. Rules Disciplinary P. 3.09 (“If
the court finds that the Respondent’s conduct does constitute Professional
Misconduct, the court shall determine the appropriate Sanction or Sanctions to be
imposed.”); Allison v. Commission for Lawyer Discipline, 374 S.W.3d 520, 527
1
The six-month period of probated suspension ended on December 31, 2017.
3
(Tex. App.—Houston [14th Dist.] 2012, no pet.) (“Nonetheless, we shall construe
Allison’s contention liberally as a challenge to the extent of the imposed
sanctions.”).
A trial court has broad discretion to determine the consequences of
professional misconduct. Eureste v. Comm’n for Lawyer Discipline, 76 S.W.3d 184,
202 (Tex. App.—Houston [14th Dist.] 2002, no pet.). The judgment of the trial court
in a disciplinary proceeding may be so light, or so heavy, as to amount to an abuse
of discretion. Id. A reviewing court may only reverse the trial court’s decision
assessing sanctions for professional misconduct if an abuse of discretion is shown.
Id. A trial court abuses its discretion only when it acts in an unreasonable and
arbitrary manner, or when it acts without reference to any guiding principles. Id.
Sanctions for professional misconduct may include disbarment, resignation in
lieu of disbarment, suspension for a certain term, probation of suspension, interim
suspension, public reprimand, and restitution. See Tex. Rules Disciplinary P. 3.10
(excluding indefinite disability suspension and private reprimand as possible
sanctions); 3.12 (requiring restitution in certain cases of professional misconduct);
Eureste, 76 S.W.3d at 201–02 (listing potential sanctions). In determining the
appropriate sanction for attorney misconduct, a trial court must consider: (1) the
nature and degree of the professional misconduct; (2) the seriousness of and
circumstances surrounding the misconduct; (3) the actual or potential loss or damage
to clients; (4) the damage to the profession; (5) the assurance that those who seek
legal services in the future will be insulated from the type of misconduct found; (6)
profit to the attorney; (7) the avoidance of repetition; (8) the deterrent effect on
others; (9) the maintenance of respect for the legal profession; (10) Bennett’s
conduct during the course of the entire disciplinary action against him; (11) the trial
of the case; and (12) any other relevant evidence concerning the attorney’s personal
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and professional background. Tex. Rules Disciplinary P. 3.10; Eureste, 76 S.W.3d
at 202. A trial court is not required to find that every Rule 3.10 factor has been
satisfied before ordering a sanction. Olsen v. Comm’n for Lawyer Discipline, 347
S.W.3d 876, 889 (Tex. App.—Dallas 2011, pet. denied). A single violation of one
disciplinary rule is enough to support a sanction suspending an attorney. See Izen v.
Comm’n for Lawyer Discipline, 322 S.W.3d 308, 323 (Tex. App.—Houston [1st
Dist.] 2010, pet. denied) (holding that any “one of the jury’s findings of violations
of the Rules is sufficient to support the judgment of suspension”).
We begin by pointing out that the same evidence supporting the now-final
determination that Bennett violated Rule 3.02 also supports the sanction assessed.
See id. Additionally, the record reflects that the trial court considered the Rule 3.10
factors when it decided what sanction to assess against Bennett. Based on the record
evidence, it was within the trial court’s discretion to conclude that Bennett’s
misconduct toward his client, Gary Land, was particularly serious and damaging
because it significantly delayed the resolution of their fee dispute and dramatically
increased the cost Land incurred as a result. Bennett’s misconduct included
appealing the confirmed arbitration award in favor of Land regarding their fee
dispute despite having agreed not to do so, delaying execution of the judgment
against him, and suing Land for fraudulently inducing Bennett into accepting Land
as a client. See Bennett, 489 S.W.3d at 69–72.
The trial court also considered the possibility that Bennett might repeat his
misconduct toward another client in the future. There was evidence in the record
from which the trial court could have concluded that Bennett did not accept that he
had engaged in professional misconduct and might therefore repeat his conduct in
the future. See Rocha v. State Bar of Tex., No. 04-95-00158-CV, 1996 WL 364823,
at *10 (Tex. App.—San Antonio July 3, 1996, writ denied) (not designated for
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publication) (“Rocha’s argument that his misconduct was not so egregious in light
of the actions taken by other attorneys in which lesser sanctions were imposed in
itself raises some concern as to whether he even now recognizes the severity of his
offense.”). This evidence includes Bennett’s argument during the second trial in
which he asked, “Do I recognize that it could have been done better? Do I recognize
that I should have put ‘may,’ the word ‘may’ in there instead of what I did?
Absolutely.” The court also could have found relevant Bennett’s argument that he
had talked with “the leading expert on ethics in the state, Lillian Hardwick,” and
“former United States Magistrate Dan Naranjo” about his conduct, and they had told
him that “this is not a violation.” Based on the record evidence, the trial court
reasonably could have determined that suspending Bennett would deter other
attorneys from pursuing similar schemes while also protecting those seeking legal
services in the future. The trial court also reasonably could have determined that if
Bennett’s professional misconduct was not punished, the legal profession would be
damaged.
In arguing that the trial court abused its discretion when it assessed a partially
probated suspension, Bennett places much emphasis on the evidence in the record
that he “has been a stalwart member of the Houston legal community for years,”
“cares about the legal profession,” and “is a good, faithful, and charitable man.” We
conclude that this evidence does not demonstrate an abuse of discretion by the trial
court. The trial court reasonably could have considered this evidence when it
determined that disbarment, the sanction levied in the first trial, was not an
appropriate sanction and instead assessed the partially probated suspension. See
Eureste, 76 S.W.3d at 202 (rejecting argument that trial court abused discretion
when it assessed suspension because there was evidence that sanctioned attorney had
“assisted many clients and his streamlined office procedures may have maximized
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client benefits.”); cf. Rocha, 1996 WL 364823, at *10 (affirming trial court’s
disbarment sanction even after deleting one violation finding by the jury because
“the severity of these concerns is not lessened by the exclusion of the one trial court
finding.”).
Finally, Bennett argues that the trial court abused its discretion because
sanctions imposed in other cases involving violations of Rule 3.02 were less severe.
Even presuming that each of the cases Bennett cites involve sanctions for conduct
violating Rule 3.02 of the Texas Disciplinary Rules of Professional Conduct, we
conclude they do not establish that the trial court abused its discretion here. See
Rocha, 1996 WL 364823, at *10 (rejecting argument that sanctions levied in other
cases established abuse of discretion in case under appeal). Bennett has cited no
authority for the proposition that a trial court called upon to levy sanctions against
an attorney found to have engaged in professional misconduct, or an appellate court
reviewing sanctions against such an attorney, should consider sanctions levied in
other cases. Instead, as discussed above, the sanction to be assessed is entrusted to
the sound discretion of the trial court after considering the Rule 3.10 factors. See
Eureste, 76 S.W.3d at 202. We conclude that the trial court did not abuse its
discretion when it imposed a partially probated suspension upon Bennett.2 We
overrule Bennett’s first and second issues.
II. Bennett did not preserve his third issue for appellate review.
Bennett complains in his third issue that the Commission’s attorney engaged
2
To the extent that the factual sufficiency standard of review applies to Bennett’s
complaint of an excessive sanction, we conclude that the evidence supporting the sanction assessed
against Bennett is not so contrary to the weight of the evidence as to be clearly wrong and
manifestly unjust. See Thawer v. Comm’n for Lawyer Discipline, 523 S.W.3d 177, 183 (Tex.
App.—Dallas 2017, no pet.) (stating factual sufficiency standard of review for finding that attorney
violated Texas Disciplinary Rules of Professional Conduct).
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in misconduct. Bennett does not, however, provide citations to where in the appellate
record the alleged misconduct occurred, he objected to it, and the trial court made a
ruling. Bennett also does not cite to authority excusing the need to object in the trial
court. We conclude, therefore, that Bennett has not preserved error related to alleged
misconduct by the Commission’s attorney during the second trial. See Tex. R. App.
P. 33.1(a); cf. McCaffety v. Blanchard, No. 01-15-01077-CV, 2018 WL 542390, at
*3 (Tex. App.—Houston [1st Dist.] Jan. 25, 2018, pet. denied) (mem. op.) (rejecting
allegation of trial court bias and prejudice because appellant “has not presented any
argument to suggest that the trial judge did anything improper, that he objected in
the trial court, that he was harmed, or that he is entitled to any particular appellate
relief”). We overrule Bennett’s third issue.
CONCLUSION
Having overruled Bennett’s issues on appeal, we affirm the trial court’s
judgment.
/s/ J. Brett Busby
Justice
Panel consists of Justices Boyce, Busby, and Brown.
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