Benton v. Commission of Lawyer Discipline, No. 13-94-221-CV

• Court: Court of Appeals of Texas
• Writing for the Court: Before SEERDEN; CHAVEZ
• Citation: 933 S.W.2d 784
• Parties: Barry Robert BENTON, Appellant, v. COMMISSION OF LAWYER DISCIPLINE, Appellee.
• Docket Number: No. 13-94-221-CV
• Decision Date: 21 November 1996

Page 784

933 S.W.2d 784 Barry Robert BENTON, Appellant,
v.
COMMISSION OF LAWYER DISCIPLINE, Appellee. No. 13-94-221-CV. Court of Appeals of Texas,
Corpus Christi. Nov. 21, 1996.
Rehearing Overruled Nov. 21, 1996.

Page 785

Barry R. Benton, Edmund Cyganiewicz, Brownsville, for appellant.

Dawn Miller, Assistant General Counsel, James M. McCormack, General Counsel, State Bar of Texas, Austin, Dana C. Livingston, Vinson & Elkins, L.L.P., Houston, for appellee.

Before SEERDEN, C.J., and YANEZ and CHAVEZ, JJ.

OPINION ON MOTION FOR REHEARING

CHAVEZ, Justice.

We overrule appellee's motion for rehearing, withdraw our opinion of May 23, 1996, and substitute this opinion for our previous opinion.

The Commission On Lawyer Discipline of the State Bar of Texas brought a disciplinary action against attorney Barry Robert Benton, appellant. The Commission alleged that appellant violated Rule 3.06(d) of the Texas Disciplinary Rules of Professional Conduct. During the action, appellant stipulated that he violated Rule 3.06(d), but he asserted that the rule was unconstitutional. The court entered judgment against appellant and ordered appellant's suspension from the practice of law for six months. The suspension was probated for one year with conditions of probation. Appellant appeals by four points of error. We reverse the trial court's judgment and dismiss the case.

In October 1991, appellant tried a personal injury lawsuit in which he represented the plaintiffs. The case was tried to a jury, which returned a take-nothing verdict. Four months after the original jury trial, and after the plaintiffs had been granted a new trial,

Page 786

appellant sent a letter to the members of the discharged jury criticizing their verdict. Appellant's letter was carbon copied to his client, but not copied to the trial court or to opposing counsel.

Specifically, appellant's letter stated:

It has been over four months since you sat on the jury in the above-referenced case and returned a verdict that Mr. and Mrs. Florentino Salas suffered no damages as a result of the bike accident involving Mr. Salas and the Abete's [sic] dog.

I was so angry with your verdict that I could not talk with you after the trial. I could not believe that 12 allegedly, good people from Cameron County, who swore to return a verdict based on the evidence, could find that the Salases were not damaged. The only evidence admitted at trial was that Mr. Salas was hurt. The Abete's [sic] lawyer, paid for by State Farm Insurance Company, admitted that Mr. Salas was injured. There was no evidence introduced that Mr. Salas was not injured. Yet by your answers, you found that Mr. Salas was not injured.

The only reason I can see as to why you ignored the evidence is that you were affected by the "Lawsuit Abuse" campaign in the Valley. Why else would a jury breach its oath to render a true verdict based on the evidence? I want to say that when you make a finding in a trial which is not based on the evidence[,] you are perverting our civil justice system and hurting everyone in the community. Who knows, maybe someday you will need the aid of our civil justice system and it will be as corrupted for you as you made it for the Salases. The next time you think of government as crooked, remember your contribution to the corruption of good government. You knew Mr. Salas was injured, but swore that he was not.

Your cold and unfair conduct does not matter now. Judge Hester reviewed the evidence admitted at trial and decided that your verdict was obviously unjust and granted the Salases a new trial. The first trial now was nothing more than a waste of everyone's time and the county's money. The Salases and myself are very relieved that our justice system may still provide a fair resolution to their claim, despite your verdict.

If you wish to discuss anything in this letter, please feel free to contact me.

The Commission brought this disciplinary action against appellant pursuant to Rule 3.06(d), which provides:

After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.

TEX. DISCIPLINARY R. PROF. CONDUCT 3.06(d) (1989), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. (Vernon Supp.1996) (STATE BAR RULES art. X, § 9).

Benton filed a motion for summary judgment in which he admitted that he violated Rule 3.06(d) because "he communicated with members of the jury by letter to influence their actions in future jury service." However, Benton alleged that the rule was unconstitutional. No ruling on appellant's motion for summary judgment appears in the record. The trial court entered judgment against appellant based upon a violation of Rule 3.06(d).

By four points of error, appellant contends that Rule 3.06(d) is unconstitutional because (1) it is a content-based restriction of free speech without sufficiently compelling justification; (2) it denies appellant equal protection of the law as guaranteed by the Texas and United States Constitutions; (3) it is overbroad in violation of the Texas and United States Constitutions; and (4) it is unconstitutionally vague under the Texas and United States Constitutions.

Without deciding whether Rule 3.06(d) is an unconstitutional content-based restriction on free speech, whether it denies equal protection, or whether it is subject to the overbreadth doctrine, we agree that the rule is unconstitutionally vague; thus, the rule is void.

Page 787

In the United States, courts...