Commission for Lawyer Discipline v. Benton

• Decision Date: 31 December 1998
• Docket Number: No. 97-0228,97-0228
• Citation: 980 S.W.2d 425
• Parties: 41 Tex. Sup. Ct. J. 1250 COMMISSION FOR LAWYER DISCIPLINE, Petitioner, v. Barry Robert BENTON, Respondent.
• Court: Texas Supreme Court

Page 425

980 S.W.2d 425

41 Tex. Sup. Ct. J. 1250

COMMISSION FOR LAWYER DISCIPLINE, Petitioner, v. Barry Robert BENTON, Respondent.

No. 97-0228.

Supreme Court of Texas.

Argued Feb. 5, 1998.

Decided July 14, 1998.

Rehearing Overruled Dec. 31, 1998.

Daniel K. Hedges, Houston, Linda A. Acevedo, Austin, for Petitioner.

Barry R. Benton, Edmund K. Cyganiewicz, Brownsville, for Respondent.

PHILLIPS, Chief Justice, delivered the opinion of the Court as to Parts I, II, III, IV, V-A, V-B and V-E, in which HECHT, ENOCH, OWEN, ABBOTT and HANKINSON, Justices, joined, and an opinion as to Parts V-C, V-D, V-F and VI, in which ABBOTT and HANKINSON, Justices, joined, and announced the judgment of the Court.

This is a disciplinary action arising out of an attorney's letter attacking the integrity of jurors who rendered a verdict against his clients. The Commission for Lawyer Discipline of the State Bar of Texas charged the attorney with violating Rule 3.06(d) of the Texas Disciplinary Rules of Professional Conduct, which regulates lawyers' post-verdict communications with jurors. The trial court found that the attorney had violated Rule 3.06(d) and imposed a probated suspension. The court of appeals reversed on constitutional grounds and dismissed the action. 933 S.W.2d 784, 941 S.W.2d 229 (Seerden, C.J., concurring on motion for rehearing). We reverse the judgment of the court of appeals and remand the cause to the trial court for a new punishment hearing.

I

Respondent Barry Benton represented the plaintiffs in a personal injury action that was tried to a jury in October 1991. The jury found the defendant liable but awarded Benton's clients no damages. In February 1992, after the trial court had granted the plaintiffs' motion for new trial, Benton sent the following letter to all members of the jury, with a copy to his clients:

Re: Florentino and Mary Esther Salas vs. Rene and Rosemarie Abete

Dear [juror]

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 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, [sic ] good people from Cameron County, who swore to return a verdict based on the evidence, could find that the Celestas were not damaged. The only evidence admitted at trial was that Mr. Salas was hurt. The Abete's 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.

These facts came to the attention of the State Bar District Grievance Committee. The committee held an investigatory hearing and concluded that Benton had violated 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 TEX. DISC. R. PROF. COND D. 3.06(d). ¹ Benton rejected the grievance committee's proposed agreed judgment of public reprimand and elected to have the complaint against him heard in district court rather than through an administrative proceeding. See TEX.R. DISC. P. 2.14.

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.

Pursuant to Benton's election, the Commission for Lawyer Discipline filed a disciplinary petition in district court. See TEX.R. DISC. P. 3.01. Benton answered and after discovery moved for summary judgment. Although he admitted to violating Rule 3.06(d) by attempting to influence the discharged jurors' actions in future jury service, Benton argued that the rule was unconstitutional. In his first amended original answer, he argued that Rule 3.06(d) violated the United States and Texas Constitutions in that it violated his right to free speech, was overbroad and vague, and denied him equal protection of the law. The trial court accepted Benton's stipulation that he had violated the rule, but held an evidentiary hearing on punishment. See TEX.R. DISC. P. 3.10. The trial court rendered judgment suspending Benton from law practice for six months with the suspension fully probated for one year subject to the conditions that, among other things, he apologize to the jurors and perform community service.

Benton appealed on the same four constitutional grounds that he asserted in the trial court. The court of appeals reversed the trial court's judgment and dismissed the case on the sole ground that Rule 3.06(d) is void for vagueness. 933 S.W.2d 784. On rehearing, one justice issued a concurring opinion that disagreed with the majority's vagueness holding but concluded that the rule is an unconstitutional limitation on speech. 941 S.W.2d 229. We granted the Commission's application for writ of error.

II

Because the question of whether Rule 3.06(d) inhibits constitutionally protected speech will affect our analysis of Benton's vagueness challenge, see Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n. 7, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), we will begin by considering Benton's claim that the free speech guarantees of the federal and state constitutions prohibit the Commission from disciplining him for sending the letter. Of all the "truly difficult issues involving the First Amendment[,][p]erhaps foremost ... are cases that force us to reconcile our commitment to free speech with our commitment to other constitutional rights embodied in government proceedings." Burson v. Freeman, 504 U.S. 191, 198, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (opinion of Blackmun, J.) (discussing restrictions on campaign speech in the vicinity of polling places). This is such a case, because it requires us to resolve a conflict between the expressive rights of attorneys and the public's right to impartial jury trials--a right described in Texas's Declaration of Independence as "that palladium of civil liberty, and only safe guarantee for the life, liberty, and property of the citizen," and prominently enshrined in both constitutions. See U.S. CONST. amends. VI, VII; TEX. CONST. art. I, §§ 10, 15; id. art. V, § 10.

In determining whether Benton's speech is constitutionally protected, we must first decide what standard of scrutiny to apply to the disciplinary rule. Because the United States Supreme Court has recently addressed the application of the First Amendment to lawyers' speech, we will consider the appropriate The Supreme Court's most recent pronouncement on the First Amendment standard applicable to lawyers' professional speech is Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). Gentile, a criminal defense attorney, held a press conference on the day his client was indicted in which he stated that the prosecution's witnesses were framing his client as part of a cover-up of police corruption. He was given a private reprimand for violating a state bar rule that "[a] lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding. " Id. at 1060, 111 S.Ct. 2720 (Appendix B to opinion of Kennedy, J.) (emphasis added) (quoting NEV. R. PROF. COND. . 177(1) (amended 1991)). The Supreme Court held that the rule's "substantial likelihood of material prejudice" standard was sufficiently protective of lawyers' free speech rights to pass constitutional muster. See id. at 1075-76, 111 S.Ct. 2720 (opinion of Rehnquist, C.J.). ² But see id. at 1034-37, 111 S.Ct. 2720 (opinion of Kennedy, J.) (urging application of "clear and present danger" standard).

standard under the federal constitution first. See Operation Rescue-Nat'l v. Planned Parenthood, 975 S.W.2d 546, 556, 41 Tex. Sup. Ct. J. 1071 (Tex.1998) (analyzing abortion protestors' federal free speech claim before Texas constitutional claim because United States Supreme Court had recently applied First Amendment in abortion protest context).

Gentile acknowledged that when the speaker is a member of the press, the First Amendment does not allow the state to prohibit speech about a pending criminal case unless it shows a " 'clear and present danger' that a malfunction in the criminal justice system will be caused." Id. at 1071, 111 S.Ct. 2720 (opinion of Rehnquist, C.J.). The Court rejected the contention that the same high standard applies to restrictions on speech by attorneys involved in the...