Izen Jr v. Comm'n For Lawyer Discipline

• Decision Date: 28 May 2010
• Docket Number: No. 01-07-01114-CV.,01-07-01114-CV.
• Parties: Joe Alfred IZEN Jr., Appellant, v. COMMISSION FOR LAWYER DISCIPLINE, Appellee.
• Court: Texas Court of Appeals

322 S.W.3d 308

Joe Alfred IZEN Jr., Appellant,

v.COMMISSION FOR LAWYER DISCIPLINE, Appellee.

No. 01-07-01114-CV.

Court of Appeals of Texas,Houston (1st Dist.).

May 28, 2010.

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Joe A. Izen Jr., Bellaire, TX, for Appellant.

Cynthia Canfield Hamilton, Senior Appellate Counsel, Linda A. Acevedo, Office of the Chief Disciplinary Counsel, Austin, TX, Shannon B. Sauceda, Timothy R. Bersch, Houston, TX, for Appellee.

Panel consists of Justices KEYES, ALCALA, and HANKS.

OPINION

ELSA ALCALA, Justice.

This appeal concerns a telephone book advertisement and two website advertisements by a Texas attorney, appellant, Joe Alfred Izen Jr., who was prosecuted by the appellee, the Commission for Lawyer Discipline (the “Commission”). Izen appeals the judgment that suspends his license to practice law, probated for 24 months, for various violations of the Texas Disciplinary Rules of Professional Conduct (hereafter, “the Rules”). In six issues challenging the jury's verdict and the trial court's judgment, Izen contends the evidence is legally and factually insufficient; his due process rights were violated; there is a conflict in the jury's answers; the trial court erred in its evidentiary rulings; the trial court erred in its instructions to the jury; and the trial court erred by allowing the jury to deliberate when the judge was outside of Harris County. We conclude that Izen's due process rights were not violated by the Commission's prosecution of the violations of the Rules by the websites and that those violations are each independent grounds sufficient to uphold the judgment. We also conclude that the remainder of Izen's complaints are either waived or are alternative grounds that are unnecessary to support the judgment. We affirm.

BACKGROUND

Izen, an attorney licensed to practice in Texas, employed Joe D. Sanchez, who was not an attorney. Izen placed three advertisements. One was an advertisement that appeared in a Brady, Texas telephone directory and two were websites. In describing the background of this case, we discuss (A) a description of the three advertisements, (B) the Committee's administrative action, (C) the jury trial, and (D) the post-verdict motions filed by Izen.

A. The Three Advertisements

Izen placed an advertisement that appeared in a Brady, Texas telephone directory. The advertisement's size was one-half page. It stated, “Texas Legal Services Clinic. Divorce $79.00.” The advertisement also listed the areas of wills, probate, bankruptcy, “workmans comp.,” personal injury, criminal law, and family law. Izen was listed as a “staff attorney” and Joe D. Sanchez was identified as an “associate.” In addition to listing a telephone number, the advertisement stated, “Not Certified by the Texas Board of Legal Specialization.”

Izen also had a website called www. joeizen. com. It stated,

Joe A. Izen Jr. is considered by many of his clients to be a highly proficient attorney with few peers in the legal profession when it comes to a committed defense of those he represents. Izen has been licensed over 20 years and is the lead attorney for many of the more difficult cases. His practice has grown rapidly across the nation and even into other countries such as Belize, where he stopped the SEC from illegally obtaining records of a resident trust company.

He has won numerous battles with the IRS. It can be our hope that we not only can win many more important battles against abusive government agencies, but that we can be part of the reform efforts of some of these agencies in order to bring them back into their proper role of public servants which will then gain back public acceptance.

....

Licensed in Texas-Not Certified by the Texas Board of Legal Specialization. Licensed to practice before the Texas Supreme Court[.] Federally licensed to practice in the U.S. District Courts of the Eastern, Western, Northern and Southern Districts of Texas, Eastern and Western Districts of Arkansas. Also licensed at the appellate level to practice before the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eight[h], Ninth, Tenth, Eleventh, District of Columbia and Federal Circuits, the U.S. Tax Court, the U.S. Court of Claims, U.S. Court of Military Appeals and the United States Supreme Court.

Izen also advertised in another website, www. divorceintexas. net. In pertinent part, that website stated,

Texas Legal Service Clinic-Divorce in Texas Made Easy

Self Help Divorce Packages STARTING At .50

1,000s of satisfied clients throughout Texas!!! Unbelievably low prices!!!

....

Texas Legal Services Clinic (TLSC) is the trade name for the Law Offices of Joe Alfred Izen, Jr., an attorney licensed to practice law for over 20 years and gained considerable experience in all areas of the law.

None of these advertisements were filed with the Advertising Review Committee (hereafter “the Committee”) before their dissemination.

B. The Committee's Administrative Action

Following dissemination of the three advertisements, the Committee sent a letter to Izen in January 2003 concerning the Brady advertisement. The letter told Izen that the dissemination of the Brady advertisement violated Part 7 of the Rules because it was not filed with the Committee before its dissemination. The letter also informed Izen that he had 20 days to administratively resolve the violations of Part 7 by filing the advertisement, and paying filing and late-filing fees. The offer of an administrative resolution concerned the Part 7 violations by the Brady advertisement only. A copy of the Brady advertisement was attached to the Committee's letter.

In response to the Committee's letter, Izen submitted an application for review of the Brady advertisement, along with the $300 filing fee, and a copy of the Brady advertisement. Izen did not mention either www. joeizen. com or www. divorceintexas. net in anything he filed with the Committee. The form application sent by Izen had a section to identify the “Nature of advertisement or written solicitation” made the subject of the application. Izen put an “X” in the blank next to “Telephone Directory” and did not mark the blank next to “Other (billboards, websites, etc.)” or indicate any website's URL address in the space indicated on the form. The only mention concerning any internet-related item in Izen's response to the Committee appears in the portion concerning his contact information. This section contains blanks for the applicant to fill in information such as “Lawyer,” “Bar Card #,” “Firm,” “Firm's Principal Office Address,” “Phone,” “Fax,” and “E-mail.” In the blank following the term “E-mail,” Izen wrote “joeizen@ joeizen. com.”

The Committee did not administratively resolve any of Izen's violations. The Committee referred the violations in the Brady advertisement, as well as violations it discovered concerning the two websites, to the Commission. The Commission filed a petition in district court.

C. The Jury Trial

The case was tried before a jury and presided over by Judge Jean Boyd, who was appointed by the Texas Supreme Court. See Tex.R. Disciplinary P. 3.02, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A-1 (Vernon 2005) (providing for appointment of active district judge who does not reside in Administrative Judicial District in which respondent resides). After the close of evidence, the jury began deliberating on Wednesday, September 12, 2007. At the end of that day, the jury was instructed to return to court at 10 a.m. the next morning, although there was concern that “a huge storm, perhaps a hurricane” was approaching Houston. The trial court judge, who was not from the area, left Harris County. The storm, however, was not as bad as anticipated and the jury appeared in court the next day. Sometime during the morning, the jury sent a question to the judge. The judge did not answer the question but instead instructed the bailiff to tell the jury to go home and return the next morning, Friday, September 14. The judge returned to court Friday morning, answered the jury's question, and, later that day, received the jury's verdict.

The jury was asked 12 questions concerning possible violations of the Rules. ¹ The jury found for Izen and against him on certain questions concerning (1) the Brady advertisement, (2) the www. divorceintexas. net website, and (3) the www. joeizen. com website.

1. The Brady Advertisement

Concerning the Brady advertisement, the jury found in favor of the Commission, as follows:

• Question 1 determined that Izen practiced under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name [Rule 7.01(a) ];

• Question 2 determined that Izen advertised in the public media or sought professional employment by written communication under a trade or fictitious name [Rule 7.01(e) ];

• Question 5 determined that Izen made a false or misleading communication that is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violated these rules or other law [Rule 7.01(a)(2) ];

• Question 8 determined that Izen failed to disclose the geographic location of the principal office or days and times that a lawyer will be present or that meetings will be by appointment only [Rule 7.04(j) ];

• Question 9 determined that Izen “failed to file with the Lawyer Advertisement and Solicitation Review Committee of the State Bar of Texas, either before or concurrently with the advertisements that he placed and failed to

file a copy of each advertisement in the public media with the Lawyer Advertisement and Solicitation Review Committee of the State Bar of Texas” [Rule 7.07(b) ];

• Question 11 determined that Izen ordered, encouraged, or permitted Joe Sanchez to place the advertisement [Rule 5.03(b)(1) ]; and

• Question 12 determined that Izen failed to review and approve

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