Richard Andert Robins v. Commission for Lawyer Discipline Dba Texas Bar AKA State Bar of Texas ( 2020 )

Opinion issued January 9, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00011-CV
———————————
RICHARD ANDERT ROBINS, Appellant
V.
COMMISSION FOR LAWYER DISCIPLINE D/B/A TEXAS BAR A/K/A
STATE BAR OF TEXAS, Appellee
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Case No. 2018-46488
MEMORANDUM OPINION
Richard Andert Robins appeals the denial of his motion, filed pursuant to the
Texas Citizen’s Participation Act (TCPA),1 to dismiss the Commission for Lawyer
1
We note that, in its most recent session, the Texas Legislature amended the TCPA.
The amendments became effective September 1, 2019. Because this suit was filed
Discipline’s petition alleging Robins engaged in professional misconduct.2 In four
issues, Robins argues that the trial court erred in denying his motion because
(1) the TCPA applies to disciplinary proceedings; (2) the Commission’s
disciplinary action against him is based on, related to, or in response to TCPA-
protected communications; (3) the Commission failed to come forward with
sufficient evidence to establish a prima facie case to support its claims; and (3) he
established defenses to the Commission’s claims.
We affirm.
Background
In July 2012, Cindy Crisp sold certain items of personal property to estate
liquidator John Sauls for a total price of $6,893.21. Sauls sent Crisp payment in the
form of two checks, both of which bounced.
By handwritten letter dated October 3, 2013, Crisp asked attorney Robins to
help her recover “the value of checks plus interest and attorney/court costs” from
Sauls, and she stated that she “understands the attorney fees will not be of normal
value and that Rich Robins is doing this to help her to honor the checks that were
before the effective date of the amendments, it is governed by the statute as it
existed before the amendments, and all of our citations and analysis are to the
TCPA as it existed prior to September 1, 2019. See Act of May 17, 2019, 86th
Leg., R.S., ch. 378, §§ 1–12, 2019 Tex. Sess. Law Serv. 684, 684–87 (codified at
TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011).
2
See TEX. CIV. PRAC. & REM. CODE ANN. § 27.008(b) (authorizing interlocutory
appeal of order denying motion to dismiss filed under TCPA section 27.003).
2
written [non-sufficient funds] and fees and costs.” The record contains a check
from Crisp to Robins for $350, which Robins states was payment for court costs.3
Crisp suffered from multiple sclerosis, and according to Robins, her health
steadily declined until communication with her stopped altogether. Despite having
fallen out of contact with Crisp for over two years and having been unable to reach
her or to find anything through internet research indicating whether she had died or
was still alive, Robins filed suit on behalf of Crisp on November 17, 2016, to
collect payment from Sauls for the bounced checks. As he explained in later
pleadings, he did so “thinking that [Crisp was] hopefully still alive somewhere,
albeit in a potentially very compromised state of health.” The petition Robins filed
on behalf of Crisp stated that Crisp “would diplomatically settle this case through
her legal counsel for $14,338 if no further wrangling is necessary to finally
conclude this unfortunate matter.”
Not long after filing suit, Sauls’s attorney, Kurt Noell, offered to settle the
case for the amount of the debt plus $2,500 for loss of use and attorney’s fees.
Robins—despite knowing he could not contact his client or even confirm that she
was indeed alive—sent Noell an email rejecting the offer, explaining that
“[a]lthough Plaintiff Crisp has always believed that she deserves more, I can assure
3
Nothing in the record aids in understanding how Crisp knew Robins, or why she
chose to write to him for help, and Robins maintains that he never actually spoke
with or met Crisp.
3
you that this case would be fully nonsuited with prejudice within 24 hours of our
timely receiving the liquid funds contemplated & quantified in the abovementioned
settlement demand.”
About two months later, in March 2017, Noell served discovery on Robins.
Around the same time, Robins located Crisp’s two sons, Austen and Jon
Clinkenbeard, who informed Robins that their mother had indeed died in 2015. An
email from Robins to the Clinkenbeard brothers confirms that Robins had been
made aware of Crisp’s death by March 15, 2017, stating that “[i]t is unfortunate
that we do not have Cindy with us any longer.” Having made contact with the
Clinkenbeard brothers, Robins began to correspond with them to urge them to
become involved in the litigation.
In one of his emails to the Clinkenbeard brothers, dated June 21, 2017,
Robins remarked,
I want to get you guys the biggest award realistically obtainable, but I
need to balance that with how law school’s painfully expensive. At
nearly 10% annually compounded interest, you can imagine how
excruciating that pain is especially for someone who already repaid
the principal of his student loans long ago . . . but who still owes
considerably more because the greedy feds charge such a high
premium for student loans . . . .
And in another email, dated September 26, 2017, Robins stated, “billing Sauls for
my several dozen (and growing) hours of attorney time . . . naturally remains a
priority for me. The (interest-accruing) cost of law school helps make that
4
understandable.” He added, “If you know of anyone who would rather pay my
attorney’s fess instead of Sauls though (such as [Crisp’s] insurance policy that
might apply?), by all means I’m all ears.”
Trial was set for April 3, 2017, but Robins failed to appear, and the trial
court dismissed the case for want of prosecution. Robins filed “Plaintiff Cindy
Crisp’s Verified Motion to Reinstate,” claiming he was unaware of the setting, and
the trial court granted the motion, which, notably, did not mention that Crisp had
died over two years earlier.
As the case proceeded, Robins was unable to respond to Sauls’s discovery
requests because he had no living client to provide the answers. He did, however,
according to Noell’s affidavit, discuss with Noell potential dates for Crisp’s
deposition—offering not a hint that she had long since died.
When Robins failed to respond to Sauls’s discovery requests, Sauls filed a
motion for sanctions, which the trial court set for a hearing on June 29, 2017. A
few days before the hearing was to occur, Robins sent an email to the Clinkenbeard
brothers proposing that they execute retainer agreements permitting him to
represent them instead of Crisp. Robins urged the brothers to sign the agreements,
opining that he “would not be surprised if the jury awards [them] in excess of
$63k.”
5
In the email, Robins also acknowledged that neither the court nor opposing
counsel was aware of Crisp’s death, and he stated that this might allow him to
avoid monetary sanctions in the upcoming hearing: “Sauls, his lawyer and the
court presumably don’t yet know that Cindy has passed away, but if we could get
everything nevertheless taken care of beforehand so that I can submit stuff to
opposing counsel by the early part of next week, then that would help me try to
avoid Sauls’ winning a monetary sanction this Thursday.”
On June 27, 2017, two days before the sanctions hearing was to occur,
Robins emailed the court administrator asking whether “there a desired protocol
for a suggestion of death of a plaintiff” and stating that Crisp “is reportedly no
longer with us . . . . whether opposing counsel knows it or not” and that “her son
wants to fill in for her.” The email did not indicate that Crisp had been dead for
years.
It appears from the record that in response to the suggestion of Crisp’s death,
the trial court cancelled the June 29 hearing and instead held a telephonic hearing,
during which Robins “represented that Cindy Crisp was probably dead.” The trial
court directed Robins to produce proof of Crisp’s death.
Several things happened as a result of the telephonic hearing. On July 4,
2017, Robins obtained from the Clinkenbeard brothers a signed retainer agreement,
purporting to authorize Robins to represent Crisp through Austen. Importantly, the
6
agreement stated that Robins’s fees would be paid by Sauls. It also stated that
Robins “has full settlement authority to settle for any amount for Austen and also
for any amount for his own attorney’s fees, neither of which needs to come at the
expense of the other.”
The hearing also prompted Noell to demand that Robins produce Crisp’s
death certificate and any evidence showing whether her estate had been probated.
On July 17, Robins obtained Crisp’s death certificate, which he emailed to Noell
on July 28. But Robins did not provide evidence regarding probate of Crisp’s
estate.
As a result, on September 1, Sauls filed a motion to show authority pursuant
to Texas Rule of Civil Procedure 12 asking that Robins be “ordered to appear to
produce documentation that, in fact, Cindy Crisp was alive at the time of the filing
of this suit and that she had authorized the filing of this suit.” See TEX. R. CIV. P.
12 (stating that party may file motion to require challenged attorney to appear
before trial court to show authority to act on behalf of client). The trial court
granted the motion and ordered Robins to “appear and show that at the time of the
filing of the suit, he had authority from Cindy Crisp to file this suit, that Cindy
Crisp is now deceased, and that a probate proceeding of some type has been filed
so that any interest in her estate could be pursued by an heir.” Robins filed a
response, stating that he had emailed Noell Crisp’s death certificate and that “a
7
probate court has never been involved with Cindy Crisp’s passing or with her
estate, and one need not be.”
On September 17, the trial court held a hearing, which Austen Clinkenbeard
attended. At the hearing, Robins stated that he had not filed a probate proceeding
because he had no experience in probate court and was trying to save money for
his client. The trial court expressed concern that Robins had filed the lawsuit “with
a client that was deceased” and without the authority of her heirs. When the trial
court commented that it was “strange” that Robins had only recently informed
Noell that Crisp had died two years earlier, Robins stated, “Well, we were trying to
keep this within the settlement range because [Noell] was almost there.” The
following exchange then occurred:
Court: It sounds like you were being dishonest with the
opposing party.
Robins: Dishonest as opposed to saying, “Hey, I think my client
is dead.”
Court: All right. I’m done arguing with you gentlemen. You can
leave.
Robins: I have no incentive to be dishonest.
Noell: You mean the [money] —
Court: But you were dishonest. I’m not questioning your
incentive. Okay. Just leave.
8
At the close of the hearing, the trial court ordered Robins to submit
additional briefing regarding his authority under Rule 12 to represent Austen
Clinkenbeard. The trial court stated that it would strike Crisp’s pleadings if Robins
failed to do so within ten days.
In an affidavit submitted in response to Robins’s TCPA motion to dismiss,
Austen stated that, on the morning of the hearing, Robins “began panicking
because he had not brought the necessary documents and he pleaded that I print out
over a hundred pages of documents at my hotel.” Robins “appeared to be
completely unprepared,” and Austen was “bothered” by what he observed at the
hearing. Robins “ranted and raved and the judge admonished his behavior several
times,” and “the judge seemed to be mad at [Robins] about not promptly telling the
court that [Crisp] had died in 2015.” Austen further observed Robins “say on the
record at a hearing in court that he had no probate experience and had only filed
the suit in county court to save money.” After the hearing, Austen “realized there
might be more going on in the case” than Robins had disclosed.
In preparing the briefing ordered by the trial court, Robins drafted affidavits
for both Clinkenbeard brothers stating that no probate proceedings were necessary
for Crisp’s estate because she had no debt. According to both Austen’s and Jon’s
affidavits submitted in response to Robins’s motion to dismiss, Robins pressured
them to sign the affidavits of heirship. In an email dated September 27, 2017, Jon
9
informed Robins that he and Austen would not sign the affidavits, explaining that
Crisp did “have debt to the nursing home she was in at the time of her passing and .
. . to medicaid/care.” Jon also stated that after hearing from Austen that “the judge
was upset about possible ‘intentional ambiguity’ around our mother’s death via
documentation,” he and Austen had “no desire to make that subject any murkier.”
Jon closed the email by asking Robins for a copy of their file. But Robins did not
oblige.
Later the same day, the Clinkenbeard brothers sent Robins another email,
stating that they were “not comfortable swearing to such a bold claim” that Crisp
had no pending claims against her or any assets. They also expressed concern that
the exact date Robins had learned of Crisp’s death “was clearly such a sensitive
issue with the judge last week,” and they stated that they “no longer wish to pursue
this matter” on their mother’s behalf, because, while their “motivations have not
changed . . . circumstances and feelings about this case certainly have.” The email
concluded with another request to see the client file.
The next day, September 28, Austen and Jon spoke with Robins over the
telephone. They discussed the case generally and the affidavits Robins wanted
them to sign. According to both Austen’s and Jon’s affidavits, Robins was “very
rude and insulting to us and to our late mother, who he said had been a burden to
10
him and the state.” The brothers’ sentiments are reflected in an email they sent to
Robins later that day:
I’m very upset with how that call went. Neither Austen or I have ever
done anything to impede this trial nor have we claimed we wouldn’t
help. We simply can’t sign the affidavits as-is . . . . I don’t think that’s
any reason for threats and insinuating that our mother was and is a
burden to you and the state.” The email reiterated the brothers’ request
to see their file.
Robins responded with a scathing email accusing the Clinkenbeard brothers
of defrauding and betraying him and threatening to sue them for breach of the
retainer agreement. He wrote, “I cannot recall when I last witnessed such a display
of solipsistic callousness by two privileged young men such as yourselves.” As to
their requests to see their file, which he described as harassment, Robins stated that
although the brothers were in no position to “further mistreat” him or to “demand
repeated compliance,” their “questions and requests have been adequately
addressed in prior correspondence.”
That same day, September 28, 2017, Robins filed a brief entitled “Plaintiffs’
Counsel’s Brief Supporting Proceeding to Trial Without an Otherwise Unnecessary
Estate Administration,” in which he argued that the case could proceed with
Austen Clinkenbeard as plaintiff, and he averred—even though the Clinkenbeard
brothers had told him that they believed Crisp did have outstanding debt—that no
probate proceedings were necessary for Crisp’s estate. Specifically, Robins stated
that Sauls “has provided no evidence that any estate administration is pending
11
involving Cindy Crisp, or that pending lawsuits or active judgments exist against
Cindy Crisp anywhere” and that “Attorney Rich Robins has not found any such
evidence in his searches for them, either.” Robins also amended the petition to add
the allegation that no probate proceedings were necessary for Crisp’s estate.
On October 20, 2017, the Clinkenbeard brothers sent Robins an email
terminating their relationship, and, once again, demanding their file. The email
stated:
Although my brother and I both appreciate the effort you’ve put into
this case, we would like to immediately terminate our legal
relationship with you, the attorney-client contract we have with you,
and officially revoke the power of attorney enumerated in our
representation agreement.
After my assistance and travels to the court in Tyler, and witness of
your courtroom performance, after repeated dismissals of
conversations for potential settlement options, after repeated disregard
for written requests for our case file, and after the deterioration of your
communications with us, this matter has become one that we no longer
wish to pursue with you.
Both Austen’s and Jon’s affidavits stated that Robins never sent the file and
explained that because Robins had not provided them with a description of what
was in the file, “it was (and is) impossible for [them] to know what specifically to
ask him to turn over.”
12
Robins then began to demand attorney’s fees from the Clinkenbeards, which
surprised the brothers because this was contrary to their retainer agreement and
Robins “had always said he would get paid his fees from Mr. Sauls.”
On October 23, 2017, the trial court signed an order striking Crisp’s
pleadings and awarding Sauls $250 as sanctions against Robins. On that same day,
Austen filed the underlying grievance. The State Bar Office of the Chief of
Disciplinary Counsel forwarded the grievance to Robins by letter dated November
17, 2017, explaining that it classified the grievance as a “Complaint” because it
alleged professional misconduct. Robins responded to the letter by electing to
proceed with the complaint in district court. See TEX. RULES DISCIPLINARY P. R.
2.15, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A-1 (TEX. STATE
BAR R. art. X, § 9) (providing that respondent attorney may elect to proceed in
district court instead of having case heard by evidentiary panel appointed by
Commission).
On January 5, 2018, Robins sent Austen an email withdrawing what he
characterized as his “deeply discounted” settlement offer (the specifics of which do
not appear in the appellate record), due to Austen’s “astonishingly misleading, self-
incriminating” grievance. Robins then extended a new offer to settle his claim for
fees for “merely 75 hours” and threatened to sue for “a significantly larger
recovery.”
13
The Clinkenbeard brothers refused Robins’s settlement offer and, on January
22, 2018, filed suit against Robins for malpractice. An appeal in the malpractice
suit is currently pending before this court in Robins v. Clinkenbeard, appellate
cause number 01-19-00059-CV. Robins then made good on his threat to sue the
Clinkenbeard brothers.4
On July 12, 2018, the Commission filed the underlying professional
misconduct suit against Robins in Harris County District Court. The Commission’s
petition alleged that Robins violated Texas Disciplinary Rules of Professional
Conduct 1.15(d) (requiring lawyer to provide client file upon termination of
representation), 3.01 (prohibiting lawyer from filing frivolous cases), 3.02
(prohibiting lawyer from taking position that causes unreasonable increase in costs
or delay), 3.03(a)(2) (prohibiting lawyer from withholding facts from tribunal
necessary to avoid assisting in crime or fraud), and 8.04(a)(3) (prohibiting lawyer
from engaging in dishonest, fraudulent, or deceitful conduct or
misrepresentations). See TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.15(d),
3.01, 3.02, 3.0d(a)(2), 8.04(a)(3), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit.
4
The Cllinkenbeards filed their suit against Robins in Smith County. After Robins
filed suit against the Clinkenbeards two months later in Harris County, the
Clinkenbeards dismissed their Smith County suit and asserted their legal
malpractice claim as a counterclaim in Robins’s Harris County suit.
14
G, app. A (TEX. STATE BAR R. art. X, § 9). The Commission asked that Robins be
reprimanded, suspended, or disbarred.
Robins filed a motion to dismiss pursuant to the TCPA. He argued that the
TCPA applied to the disciplinary action against him for two reasons. First, the
grievance “stem[s] directly from” communications he made to or on behalf of the
Clinkenbeards in exercise of his rights to free speech, petition, and association.
Robins’s motion did not offer any legal analysis in support of this assertion, nor
did it identify the communications he contended were TCPA-protected.
Robins asserted as a second basis for TCPA protection that the Commission
filed suit to silence him in his criticisms of the State Bar of Texas—specifically,
his involvement online and in the Legislature with the sunset review of the State
Bar of Texas—“for the Texas Bar’s and [the Commission’s] selfish benefit.”
Robins also argued that the Commission could not make a prima facie case
for its allegations of professional misconduct and, even if it could, that he had
established valid defenses to the Commission’s claims. In support of his motion,
Robins attached some fifty exhibits, including his own affidavit, in which he states
that the grievance was “largely conjured up by [the Commission] amidst the Sunset
Review’s ongoing probing and reforming” of the State Bar. He explained that he
did not disclose his suspicion that Crisp had died because he did not wish to
“subject future clients and their cases to accusations of hysterical sensationalism,
15
[et cetera] by risking prematurely and potentially inaccurately reporting the death
of a client,” as “[e]ven verbally reported deaths might involve (for example)
simply being hospitalized in a comatose state and euphemistically described to
others as no longer among the living.”
With regard to the allegation that he had failed to produce the client file,
Robins stated that he had already sent the Clinkenbeards “all that [he] thought
could help them succeed” and that “work product was already shared satisfactorily
through emails.” Specifically, he stated that he had emailed them “practically every
single pre-trial court filing (if not every one) in the case contemporaneously with
[his] actually filing it” and that he had given them “the documents on a thumb
drive.” He also asserted a lien over the file.
Regarding the settlement offers, Robins stated that Noell extended them
before the Clinkenbeards became his clients and that he had the right to decline the
“pittance-sized” and “woefully insufficient” offers.
The Commission responded to Robins’s motion to dismiss, arguing that the
TCPA does not apply to disciplinary proceedings in general, and even if it did, it
did not apply to this case because Robins failed to show by a preponderance of the
evidence that the Commission’s suit was based on, related to, or in response to
Robins’s exercise of the rights of free speech, petition, or association.
16
The Commission also argued that it presented a prima facie case for each
element of its claims against Robins and that Robins failed to establish otherwise.
Among the exhibits it attached to prove its prima facie case were Austen’s and
Jon’s affidavits. In addition to the statements from those affidavits recounted
above, Jon’s affidavit stated that when he and Austen told Robins at the outset that
they could not afford to pay “any expenses or fees up-front,” Robins assured them
that “Mr. Sauls would eventually pay all of that.” And Austen’s affidavit stated
that Robins advised Jon and him not to settle the case against Sauls and “would
press [them] to continue litigation in court.” Austen’s affidavit also stated that it
was only after he had signed the retention agreement that Robins told them that he
had previously received a settlement offer for the full amount of the bounced
checks, and only recently that he had learned (in connection with the malpractice
suit) that Noell had made another offer to settle “for the amount of the check[s]
plus $2,500,” which was “also apparently declined by Mr. Robins without
consulting my brother or myself.” Further, prior to the September 17 hearing,
Robins had not explained that Crisp’s death “was such a potential problem in our
case.”
The Commission also attached several email threads between Robins and the
Clinkenbeard brothers (mentioned above), which it argued, in conjunction with the
Clinkenbeards’ affidavits, showed that Robins’s top priority in the litigation was to
17
recover his attorney’s fees so that he could pay off his law school loans and that he
let this motivation drive him to make numerous misrepresentations to the
Clinkenbeards, Sauls’s counsel, and the trial court.
The Commission also attached Noell’s affidavit, stating that he incurred fees
for Sauls for “engaging in futile settlement negotiations (since Mr. Robins had no
client to consult about the settlement); appearing at a futile trial setting in April
2017 (since Mr. Robins had no client); drafting and sending futile discovery
requests (that could never be answered or sworn-to by Ms. Crisp); trying to arrange
for a futile deposition; and preparing my client’s case for trial.”
After a hearing, the trial court signed an order denying Robins’s motion to
dismiss, finding that the TCPA does not apply to disciplinary proceedings, the
Commission has statutory immunity from suit, Robins failed to meet his burden to
show that the Commission’s suit is “in any way related to or in response to”
Robins’s exercise of TCPA-protected rights, and the Commission established a
prima facie case for each element of its claims by clear and specific evidence.
Robins appeals this order.
Texas Citizen’s Participation Act
A. Standard of Review
We review de novo the denial of a TCPA motion to dismiss. Dolcefino v.
Cypress Creek EMS, 540 S.W.3d 194, 199 (Tex. App.—Houston [1st Dist.] 2017,
18
no pet.). In determining whether to grant or deny a TCPA motion to dismiss, the
court must consider the pleadings and supporting and opposing affidavits stating
the facts on which the liability or defense is based. TEX. CIV. PRAC. & REM. CODE
ANN. § 27.006(a). We view the evidence in the light most favorable to the
nonmovant. Dolcefino, 540 S.W.3d at 199; see Cheniere Energy, Inc. v. Lotfi, 449
S.W.3d 210, 214 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
B. TCPA Statutory Scheme
The TCPA was enacted to safeguard the constitutional rights to petition,
speak freely, associate freely, “and otherwise participate in government” from
infringement by meritless lawsuits. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.002. To achieve this purpose, the TCPA provides for dismissal if the movant
shows by a preponderance of the evidence that a legal action filed against it is
based on, relates to, or is in response to the moving party’s exercise of the right of
free speech, the right to petition, or the right of association. Id. § 27.005(b).
If the movant meets this burden, the trial court must dismiss the action
unless the nonmovant establishes by “clear and specific evidence a prima facie
case for each essential element of the claim in question.” Id. § 27.005(c); In re
Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding) (“In reviewing [a
TCPA motion to dismiss], the trial court is directed to dismiss the suit unless ‘clear
19
and specific evidence’ establishes the plaintiffs’ ‘prima facie case.’”) (quoting TEX.
CIV. PRAC. & REM. CODE ANN. § 27.005(c)).
Once a TCPA nonmovant establishes a prima facie case for its claim, the
movant may still obtain a dismissal if it “establishes by a preponderance of the
evidence each essential element of a valid defense to the nonmovant’s claim.” TEX.
CIV. PRAC. & REM. CODE ANN. § 27.005(d).5
C. Prima Facie Case
Robins’s first and second issues challenge the trial court’s findings that the
TCPA does not apply to this action. We need not address these issues because we
conclude that the Commission’s pleadings and exhibits provide clear and specific
evidence of a prima facie case for professional misconduct.6 See TEX. R. APP. P.
47.1 (stating that appellate court opinions should be as brief as practicable in
addressing only issues necessary to final disposition).
5
The amended TCPA requires dismissal of the underlying suit if the moving party
“establishes an affirmative defense or other grounds on which the moving party is
entitled to judgment as a matter of law.” See Act of May 17, 2019, 86th Leg., R.S.,
ch. 378, § 3, 2019 Tex. Sess. Law Serv. 684, 685 (codified at TEX. CIV. PRAC. &
REM. CODE ANN. § 27.005(d)).
6
Section 27.0101(a)(10) of the amended TCPA expressly exempts “disciplinary
action[s] or disciplinary proceeding[s] brought under Chapter 81, Government
Code, or the Texas Rules of Disciplinary Procedure.” See TEX. CIV. PRAC. & REM.
CODE ANN. § 27.010(a)(10) (eff. Sept. 1, 2019). Although inapplicable to this case
based on its filing date, this amendment settles the question whether disciplinary
proceedings are subject to the TCPA going forward.
20
Under TCPA section 27.005(c), the trial court may not dismiss the action if
the plaintiff establishes “by clear and specific evidence a prima facie case for each
essential element of the claim in question.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.005(c). In this context, the Texas Supreme Court has clarified that “clear”
means “unambiguous, sure, or free from doubt,” “specific” means “explicit or
relating to a particular named thing,” and “prima facie case” means evidence that is
legally sufficient to establish a claim as factually true if it is not countered. See In
re Lipsky, 460 S.W.3d at 590. In other words, a prima facie case is the “minimum
quantum of evidence necessary to support a rational inference that the allegation of
fact is true.” Id. (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218,
223 (Tex. 2004) (per curiam)). “The supreme court has expressly disapproved
interpretations of the TCPA that ‘require direct evidence of each essential element
of the underlying claim to avoid dismissal,’ and instead it has held that pleadings
and evidence that establish the facts necessary to support the essential elements of
a claim are sufficient to resist a TCPA motion to dismiss.” Universal Plant Servs.,
Inc. v. Dresser-Rand Grp., Inc., 571 S.W.3d 346, 359 (Tex. App.—Houston [1st
Dist.] 2018, no pet.) (quoting In re Lipsky, 460 S.W.3d at 590–91). “The TCPA
requires only that evidence be ‘clear,’ ‘specific,’ and ‘sufficient as a matter of law
to establish a given fact if it is not rebutted or contradicted.’” Id. (citing In re
Lipsky, 460 S.W.3d at 590).
21
The Commission’s petition alleges that Robins engaged in professional
misconduct by violating Texas Disciplinary Rules of Professional Conduct 1.15(d)
(requiring lawyer to provide client file upon termination of representation), 3.01
(prohibiting lawyer from filing frivolous cases), 3.02 (prohibiting lawyer from
taking position that causes unreasonable increase in costs or delay), 3.03(a)(2)
(prohibiting lawyer from withholding facts from tribunal necessary to avoid
assisting in crime or fraud), and 8.04(a)(3) (prohibiting lawyer from engaging in
dishonest, fraudulent, or deceitful conduct or misrepresentations). See TEX. RULES
DISCIPLINARY P. R. 1.06(CC)(1) (defining “professional misconduct” to include
acts or omissions by attorney that violate one or more of Texas Disciplinary Rules
of Professional Conduct).
1. Filing and Continuing to Litigate a Suit Without a Reasonable Basis
The Commission alleges that Robins violated Rule 3.01 by filing and
continuing to litigate Crisp’s case against Sauls. Rule 3.01states:
A lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless the lawyer reasonably believes that
there is a basis for doing so that is not frivolous.
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.01. The “Terminology” section
of the disciplinary rules defines the word “reasonably” to mean “the conduct of a
reasonably prudent and competent lawyer” and “reasonably believes” to mean that
“the lawyer believes the matter in question and that the circumstances are such that
22
the belief is reasonable.” TEX. DISCIPLINARY RULES PROF’L CONDUCT,
Terminology.
Important in evaluating the Commission’s allegation that Robins’s conduct
was unreasonable is the legal principle that a deceased person does not have actual
or legal existence and therefore cannot bring suit. See Armes v. Thompson, 222
S.W.3d 79, 83–84 (Tex. App.—Eastland 2006, no pet.). In cases where a plaintiff
dies after having filed suit, claims that survive her death belong to her heirs,
subject to the administration of her estate. Id. at 84. And while her estate itself
cannot pursue such claims, it may do so through a representative. See Austin
Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 850 (Tex. 2005) (holding that
representative of decedent must pursue survival claims on decedent’s behalf).
The Commission identifies three instances in which Robins allegedly
violated Rule 3.01.
a. Actions taken without knowledge that client was alive
First, Robins filed suit for Crisp when “it was not particularly clear” to him
that she was alive. And he continued to litigate the case in her name, including
refusing a settlement offer on Crisp’s behalf. The Commission alleges and argues
that a reasonably prudent attorney would not believe that such conduct is non-
frivolous, as he would know that a deceased person cannot, without a personal
representative, invoke a court’s jurisdiction. See id. (“Certain individuals are
23
afforded the capacity to bring a claim on an estate’s behalf. In general, only the
estate’s personal representative has the capacity to bring a survival claim.”);
Armes, 222 S.W.3d at 83–84 (holding that deceased person’s petition cannot
invoke trial court’s jurisdiction because decedent does not have actual or legal
existence and thus does not have standing to bring suit).
We agree with the Commission, and we conclude that these allegations,
supported by emails and affidavit testimony, constitute clear and specific evidence
of a prima facie case for professional misconduct based on violation of Rule 3.01.
See TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.01.
b. Actions taken after learning of client’s death
The Commission next argues that a reasonably prudent lawyer would not
believe that there was a non-frivolous basis for continuing, as Robins did, to
litigate a case without a living client.
It is undisputed that by March 2017, Robins had been informed by the
Clinkenbeard brothers that their mother had died in 2015 and that Robins
continued to prosecute the suit as if Crisp were still alive. And while it is not
determinative of the issue, we note that the Commission also alleges and offers
affidavit evidence that, after learning of Crisp’s death, Robins went so far as to
discuss Crisp’s availability for a deposition with opposing counsel.
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Robins argues that his decision to continue the litigation in Crisp’s name
was reasonable because, even today, it “remains uncertain whether or not Cindy
Crisp is indeed dead.” He contends that “there are cryonic preservation options that
a lawyer is duty-bound to consider under such circumstances,” such as Crisp’s
“possibly [being] left alive albeit institutionalized and perhaps comatose (while
remaining dependent upon Medicaid).” Robins repeatedly imputes sinister motives
to the Clinkenbeard brothers, asserting that they “had monetary incentives (an
inheritance) to coax a coroner to sign a death certificate” and claiming that they
“got a lake house as a result of [Crisp’s] death, which they would not have gotten if
they had instead reverse-mortgaged that home while she was still alive.”
Robins’s professed, but unsupported, belief that Crisp is still alive and either
in a coma induced by her sons or cryogenically frozen, is unreasonable by any
standard, and this belief did not provide a reasonable basis for his failure to
respond as a reasonably prudent lawyer would to news of his client’s death. See
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.01, cmt. 1 (“The advocate has a
duty to use legal procedure for the fullest benefit of the client’s cause, but also a
duty not to abuse legal procedure. The law, both procedural and substantive,
affects the limits within which an advocate may proceed.”).
We conclude that the Commission carried its burden to produce clear and
specific evidence that it was objectively unreasonable for Robins to decline to take
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whatever steps may have been available to him to proceed legally—whether by
substituting in an heir as a personal representative for Crisp, probating her estate,
or otherwise—or to discontinue the litigation, and to instead continue for several
months as though Crisp were alive, concealing news of her death from opposing
counsel and the trial court. See TEX. DISCIPLINARY RULES PROF’L CONDUCT R.
3.01.
c. Actions taken after disclosing client’s death
The Commission also alleges and argues that Robins violated Rule 3.01 by
his conduct after he informed the trial court and opposing counsel of Crisp’s death.
It is undisputed that Robins sought to continue litigating Crisp’s case by
substituting one of her heirs as her representative. This could only be accomplished
if the heir pleads and proves that no estate administration is pending or necessary.
Shepherd v. Ledford, 962 S.W.2d 28, 31–32 (Tex. 1998) (holding that heirs at law
can maintain survival suits if they “allege and prove that there is no administration
pending and none necessary”).
When Robins asked the Clinkenbeard brothers to sign affidavits stating that
their mother had no debts, they refused and explained that they were unsure that
such a “bold” statement was true because they believed Crisp did have outstanding
debts to her nursing home and to Medicaid or Medicare. Undeterred, Robins
immediately filed a brief with the trial court in which he affirmatively stated that
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because Crisp did not have any debts, the case could proceed without probate with
Austen Clinkenbeard as plaintiff. Robins also filed an amended petition adding
Austen as plaintiff and alleging that no probate proceedings were necessary for
Crisp’s estate.
These allegations and record facts satisfy the Commission’s burden to
present clear and specific evidence that a reasonably prudent lawyer would not
have acted as Robins did in pleading facts that his clients specifically refused to
affirm, and thus that Robins violated Rule 3.01. See TEX. DISCIPLINARY RULES
PROF’L CONDUCT R. 3.01.
2. Causing Unreasonable Cost and Delay
The Commission alleges that Robins violated Rule 3.02, which states:
In the course of litigation, a lawyer shall not take a position that
unreasonably increases the costs or other burdens of the case or that
unreasonably delays resolution of the matter.
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.02.
As stated above, although the Clinkenbeard brothers informed Robins of
Crisp’s death in March 2017, it was not until June 27, 2017—just two days before
the hearing scheduled on Noell’s motion for sanctions for Robins’s failure to
respond to discovery—that he alerted the court and opposing counsel of this fact.
The Commission argues that Robins’s decision to withhold his knowledge of
Crisp’s death caused his opposing counsel, Noell, to have to file additional motions
27
and briefing and caused the court to have to hold a hearing to determine whether
Robins was authorized to continue prosecuting the suit against Sauls on Crisp’s
behalf. Its evidence includes Noell’s affidavit stating that he incurred fees on
Sauls’s behalf for “engaging in futile settlement negotiations,” “appearing at a
futile trial setting,” “drafting and sending futile discovery requests,” “trying to
arrange for a futile deposition,” and “preparing my client’s case for trial.” This
evidence clearly and specifically establishes a prima facie case for the
Commission’s allegation that Robins’s failure to disclose Crisp’s death caused
increased costs and delay.
Reading his brief liberally, it appears Robins argues that his decision to
withhold this information was not unreasonable. Id. (prohibiting lawyer from
taking position that “unreasonably” increases costs or delays). First, he claims that
he “was duty-bound to preserve Cindy Crisp’s privileged confidences, such as her
having apparently been abandoned by her family and possibly left alive albeit
institutionalized and perhaps comatose (while remaining dependent upon
Medicaid).” He also claims that he “risked violating rules of confidentiality by e-
mailing the Smith County court to report claims of her death,” which he did “even
though he had not been able to substantiate such reports with any available online
obituary publication or potentially relevant probate court database.”
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We agree with the Commission that the explanations Robins provides for
waiting three months to alert opposing counsel and the court of his client’s death
are not reasonable, and we conclude that the Commission established by clear and
specific evidence a prima facie case that Robins’s decision to conceal his client’s
death from opposing counsel and the trial court unreasonably caused additional
cost and delay in violation of Rule 3.02. Id.
3. Engaging in Dishonest and Fraudulent Conduct
The Commission alleges that Robins violated Rules 8.04(a)(3) and
3.03(a)(2) by failing to disclose Crisp’s death, continuing to litigate her case as
though she were alive, and other dishonest or fraudulent conduct.
Rule 8.04(a)(3) states:
A lawyer shall not . . . engage in conduct involving dishonesty, fraud,
deceit or misrepresentation . . . .
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 8.04(a)(3). The disciplinary rules
define “fraud” to include “conduct having a purpose to deceive and not merely
negligent misrepresentation or failure to apprise another of relevant information.”
TEX. DISCIPLINARY RULES PROF’L CONDUCT, Terminology. And although the rules
do not define “dishonesty,” “deceit,” or “misrepresentation,” courts applying Rule
8.04(a)(3) have given those terms their ordinary meanings, holding that they
generally a mean “lack of honesty, probity, or integrity in principle,” and a “lack of
straightforwardness.” See, e.g., Rosas v. Comm’n for Lawyer Discipline, 335
29
S.W.3d 311, 316 (Tex. App.—San Antonio 2010, no pet.); Thawer v. Comm’n for
Lawyer Discipline, 523 S.W.3d 177, 186–87 (Tex. App.—Dallas 2017, no pet.).
The Commission argues that the following conduct on Robins’s part exhibits
a lack of straightforwardness:
• After he learned of his client’s death, Robins proceeded as though he still
had a living client. He notified opposing counsel and the trial court only two
days before a hearing scheduled on opposing counsel’s motion for sanctions
for his failure to respond to discovery. An email to the Clinkenbeard
brothers shows that Robins’s decision was motivated by his desire to avoid
discovery sanctions by having the brothers sign retainer agreements and then
updating the discovery he had been unable to answer since he did not have a
living client. When the trial court asked Robins about his failure to disclose
Crisp’s death, he stated that he did not want to derail the parties’ settlement
negotiations, to which the trial court responded that Robins was “dishonest.”
• Despite admitting that he had been unable to reach Crisp for over two years
and that “it was not particularly clear” to him that she was alive, Robins
represented to opposing counsel Noell that Crisp was alive when he declined
a settlement offer on her behalf.
• After learning from the Clinkenbeard brothers that Crisp had died, Robins
discussed possible dates for Crisp’s deposition with opposing counsel Noell.
• After disclosing Crisp’s death, Robins represented in court filings (including
a brief regarding his authority to act and an amended petition) that Crisp did
not have any debt requiring probate of her estate.
We conclude that each of these actions or omissions is clear and specific
evidence of a prima facie case that Robins “lacked straightforwardness” in
violation of Rule 8.04(a)(3). See TEX. DISCIPLINARY RULES PROF’L CONDUCT R.
8.04(a)(3).
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The Commission also argues that Robins’s failure to timely disclose Crisp’s
death and his conduct in continuing to litigate her case as though she were alive is
clear and specific evidence of a prima facie case that he violated Rule 3.03(a)(2).
Like Rule 8.04(a)(3), Rule 3.03(a)(2) addresses dishonesty, but it requires more
than a lack of straightforwardness:
A lawyer shall not knowingly . . . fail to disclose a fact to a tribunal
when disclosure is necessary to avoid assisting a criminal or
fraudulent act . . . .
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.03(a)(2). Again, the disciplinary
rules define “fraud” to include “conduct having a purpose to deceive and not
merely negligent misrepresentation or failure to apprise another of relevant
information.” TEX. DISCIPLINARY RULES PROF’L CONDUCT, Terminology; Thawer,
523 S.W.3d at 186–87.
The Commission argues that it has presented clear and specific evidence that
Robins’s failure to disclose that Crisp was deceased and that she had outstanding
debt was not merely negligent but was designed to deceive, with the purpose of
keeping the litigation going for his own financial gain. Specifically, the
Commission argues that email evidence supports the inference that Robins
withheld this information for the purpose of securing his fees.
Robins indicated in at least two emails to the Clinkenbeard brothers what
was driving his zeal to keep the case alive, stating,
31
I want to get you guys the biggest award realistically obtainable, but I
need to balance that with how law school’s painfully expensive. At
nearly 10% annually compounded interest, you can imagine how
excruciating that pain is especially for someone who already repaid
the principal of his student loans long ago . . . but who still owes
considerably more because the greedy feds charge such a high
premium for student loans . . . . [B]illing Sauls for my several dozen
(and growing) hours of attorney time . . . naturally remains a priority
for me. The (interest-accruing) cost of law school helps make that
understandable.
We find it significant that, despite having been unable to reach his client for
over two years, Robins rejected a settlement offer that would have given her a full
recovery as well as $2,500 for court costs and Robins’s fees. Robins did so despite
his ethical obligation to consult with and abide by his client’s decision whether to
accept a settlement offer. See TEX. DISCIPLINARY RULES PROF’L CONDUCT R.
1.02(a)(2) (stating that, subject to certain exceptions, lawyer must abide by client’s
decision “whether to accept an offer of settlement of a matter”).
We agree with the Commission that, under the unique circumstances of this
case, the revelations in the emails combined with Robins’s rejection of the
settlement offer constitute clear and specific evidence of a prima facie case that
Robins was purposefully deceptive in failing to disclose facts to the trial court in
violation of Rule 3.03(a)(2). See TEX. DISCIPLINARY RULES PROF’L CONDUCT R.
3.03(a)(2).
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4. Refusing to Turn Over Client File
The Commission contends that Robins violated Rule 1.15(d) when he failed
to provide the Clinkenbeards with their client file. Rule 1.15(d) states:
Upon termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client’s interests, such as
giving reasonable notice to the client, allowing time for employment
of other counsel, surrendering papers and property to which the client
is entitled and refunding any advance payments of fee that has not
been earned. The lawyer may retain papers relating to the client to the
extent permitted by other law only if such retention will not prejudice
the client in the subject matter of the representation.
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.15(d); see also In re McCann,
422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding) (“To whom does a
client’s file belong? The client’s file belongs to the client.”); In re George, 28
S.W.3d 511, 516 (Tex. 2000) (orig. proceeding) (“The attorney is the agent of the
client, and the work product generated by the attorney in representing the client
belongs to the client.”).
The record shows, and Robins does not deny, that the Clinkenbeard brothers
sent Robins several requests to turn over their case file, to no avail. Robins makes
several arguments to avoid application of Rule 1.15(d).
First, Robins argues that Rule 1.15(d) only applies to cases that are being
turned over to another attorney for further litigation, as opposed to Crisp’s case,
which Robins claims the Clinkenbeard brothers “wanted to terminate . . . as they
did not welcome scrutiny of their inheritance (a lake house) from their mother,
33
Cindy Crisp, who nevertheless left taxpayers with Medicaid-financed nursing
home bills.” Because Robins offers no authority or legal analysis for his assertion
other than that it is “self-evident,” we do not address the merits of this argument.
The same is true for his second argument, which is that the Clinkenbeard
brothers were not specific enough about which documents they sought. Robins
cites to Texas Rule of Appellate Procedure 34.5(b), which addresses requests for
items to be included in the appellate record and is clearly inapplicable here. See
TEX. R. APP. P. 34.5(b)(2) (“A party requesting that an item be included in the
clerk’s record must specifically describe the item so that the clerk can readily
identify it. The clerk will disregard a general designation, such as one for ‘all
papers filed in the case.’”). Further, both Austen’s and Jon’s affidavits stated that
because Robins had not provided them with a description of what was in the file,
“it was (and is) impossible for [them] to know what specifically to ask him to turn
over.”
Robins also argues that the Clinkenbeard brothers’ affidavits stating that
they had requested the file were “conveniently self-serving” and conclusory. Even
if we agreed, which we do not, the Commission also provided several emails
between Robins and the Clinkenbeard brothers that include requests for the file.
Finally, Robins maintains—again, without analysis—that he is not required
to turn over the file because he is asserting a lien over it. See TEX. DISCIPLINARY
34
RULES PROF’L CONDUCT R. 1.15(d); see also TEX. COMM. ON PROF’L ETHICS, Op.
610, 74 Tex. B.J. 857, 858 (2011) (“[A] lawyer has a right to claim a common law
possessory lien against a client’s property, money and papers for the payment of
amounts due the lawyer for services and expenses.”). But retention of a client’s file
is permitted “only if such retention will not prejudice the client in the subject
matter of the representation.” TEX. DISCIPLINARY RULES PROF’L CONDUCT R.
1.15(d); accord TEX. COMM. ON PROF’L ETHICS, Op. 610, 74 Tex. B.J. at 858
(“[T]his lien on a client’s documents is subject to the important limitation set forth
in Rule 1.15(d) . . . that a lawyer ‘may retain papers relating to the client to the
extent permitted by other law only if such retention will not prejudice the client in
the subject matter of the representation.’”). As reflected in several of the emails in
the record, the Clinkenbeard brothers repeatedly expressed to Robins their concern
over the way he was conducting the litigation. Further, liens against a client’s file
are for “payment of amounts due the lawyer for services and expenses.” See TEX.
COMM. ON PROF’L ETHICS, Op. 610, 74 Tex. B.J. at 858. According to the retainer
agreement—as well as the Clinkenbeard brothers’ affidavits and statements in their
emails with Robins—Robins agreed that his fees would be paid by the defendant,
Sauls, and not by the Clinkenbeard brothers.
We conclude that the Commission met its burden of establishing by clear
and specific evidence a prima facie case for each element of its professional
35
misconduct claim against Robins. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.005(c).
We overrule Robins’s third issue.
a. Defenses
In his fourth issue, Robins argues that even if the Commission established a
prima facie case for its professional misconduct claim, he is entitled to dismissal
under the TCPA because he established by a preponderance of the evidence each
essential element of a valid defense. See id. § 27.005(d). Although he makes this
argument in a global manner, his brief only urges it with regard to the
Commission’s allegation that he failed to provide the Clinkenbeards with their
client file. See TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.15(d).
Robins contends that he established the defense of “compliance,” and, as a
result, the district court erred in refusing to dismiss the Commission’s action with
regard to this allegation. Without addressing whether this qualifies as a defense
under section 27.005(d), we conclude that Robins has not proven compliance by a
preponderance of the evidence. He asserts only that the Clinkenbeard brothers had
already received “practically every single pre-trial court filing,” that he had given
them “the documents on a thumb drive,” and that because they have the case
number, they can “independently obtain” the court records from the county court.
But he does not ever actually state that he has given the Clinkenbeard brothers
36
everything he has for their case, and, indeed, Austen Clinkenbeard’s affidavit
states that he did not learn until after receiving discovery in the related malpractice
case that Noell had made an offer to settle the case “for the amount owed plus
$2,500.”
We conclude that Robins has not established by a preponderance of the
evidence that his refusal to turn over the client file upon termination of the
attorney-client relationship was justified by his belief that he had already provided
the Clinkenbeard brothers with certain documents during the representation. See
TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d).
We overrule Robins’s fourth issue.
Conclusion
We affirm the trial court’s order denying Robins’s TCPA motion to dismiss.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Landau.
37