Wade v. Commission for Lawyer Discipline

Decision Date07 August 1997
Docket NumberNo. 01-95-01080-CV,01-95-01080-CV
Citation961 S.W.2d 366
PartiesWilliam V. WADE, Appellant, v. COMMISSION FOR LAWYER DISCIPLINE, Appellee. (1st Dist.)
CourtTexas Court of Appeals

William V. Wade, Houston, Appellant.

Mary Klapperich, Houston, Scott Rothenberg, Bellaire, Linda A. Acevedo, Austin, for Appellee.

Before COHEN, ANDELL and NUCHIA, JJ.

OPINION

PER CURIAM.

After a non-jury trial, the court entered a judgment of discipline, suspending appellant from the practice of law for 540 days, the first 90 days to be active suspension, and the remainder to be probated subject to various terms and conditions. The probation was later revoked. Appellant appeals both the original judgment and the revocation. We affirm.

Facts

In 1991, five women asked appellant to represent them in their sexual harassment claims against their former employer. The first woman to meet with appellant, Joan O'Hare, testified she entered into a verbal contingency fee agreement with him providing that he would be compensated at 33 1/3 percent of the recovery if the claim was settled before trial, 40 percent if it went to trial, and 45 percent if appeal was filed. She would pay reasonable litigation expenses. Over the next several months, the other women also requested appellant to represent them. O'Hare testified that she requested a written fee contract, but appellant never reduced the agreement with her or any of the other women to writing.

Appellant filed suit on behalf of the women in October 1991, and the case came to mediation on July 2, 1992. The night before, at a meeting held to prepare for the mediation, a dispute arose over the amount of compensation appellant would receive if the case settled. O'Hare testified that appellant said he was entitled to 50 percent of the recovery. Appellant testified that he told the women that if the fees for his services to that point were calculated at the customary rate in Harris County, they would be around $300,000, figured at $200 per hour. He testified that he pointed out to O'Hare that a one-third percentage would be all right if the settlement were one million dollars, but if it were less, the fee would not be an appropriate percentage to compensate him for all the time he had put into the case. O'Hare testified that she attempted to confirm with appellant their original agreement, but that he dismissed the conversation, saying that they would talk about it later, which did not happen that evening. Appellant testified that that evening, after the plaintiffs conferred as a group, one, Tracy Probst, told appellant that they would not settle the case for less than one million dollars and that they thought, at that point, a 40 per cent fee would be appropriate, to which he consented.

The mediation commenced the next morning at 9:00 and ran until about 3:00 a.m. the next morning. In the afternoon of July 2, one of the women, Cindy Henry, left and gave appellant authority to sign her name for settlement purposes. In the early morning hours of July 3, the four remaining women, with appellant absent, agreed to settle the case for $285,000.

O'Hare testified to the following. Upon learning of the women's agreement to accept the $285,000, appellant became very upset, cried, and told the women he could not believe they were going to betray him in that way. Appellant told them they should not accept the offer. He could not sign the settlement papers because he had withdrawn as their counsel. When he asked what his fee was going to be and O'Hare said 33 1/3 percent, he disagreed vehemently and counteroffered that his fee should be the whole settlement amount. None of the clients agreed to that. Appellant said he would not sign the papers unless he got 45 percent, and because of that, O'Hare agreed to that fee.

Appellant testified to the following. Upon reentering the room where the women had been conferring, Probst told him they had developed various scenarios of what a fair attorney's fee would be. The scenarios, contained in appellant's exhibit 16, allowed for expenses of $40,000, plus and fees ranging from 50 percent to 36.5 percent. Appellant told them he did not think the 50 percent figure fair, but that the 46 percent figure was. At his request, they called Henry. He advised her he did not think it wise to settle for the $285,000, but she agreed to it, and with that the mediation ended.

In August 1992, O'Hare requested appellant provide documentation of the expenses. Sometime thereafter, the women filed grievances against appellant.

On September 15, 1992, Mr. Halbach, an attorney representing the three women, wrote a letter demanding appellant provide, within three days, an accounting of all attorney's fees and expenses, and pay $23,500, the difference between the amount appellant had already remitted to Halbach's clients and what they should have been paid under the 33 1/3 percentage O'Hare had testified was the original agreement. In mid-November, the three women, joined by the other two, sued appellant for an accounting of the expenses and the attorney's fees he had paid himself. O'Hare testified that appellant did not provide an accounting until the Friday before they were set for trial in January 1995.

Appellant testified that in September 1992, in response to Probst's request he went through a list of the expenses and estimated them for her, but that nothing was in writing at that time. On November 6, 1992, appellant wrote Halbach, stating that resolution of the accounting was influenced by a probate proceeding, 1 but that he would try to finish it within a couple of days. After the women and defense counsel provided him with releases to avoid concern about breaching the confidentiality provisions of the settlement, appellant provided an accounting of the expenses dated July 30, 1993. At his deposition, appellant produced another accounting dated December 17, 1993. He had difficulty locating the supporting documentation for the accounting because of missing records that he attributed to his wife's activities in connection with their divorce.

Eventually, in 1995, appellant produced sufficient documentation to satisfy the women, and they settled their case against him with no money changing hands. As part of the settlement, the women were tendered affidavits to sign containing the following language:

I have no desire to see the State Bar of Texas discipline Mr. Wade in any way whether by reprimand, suspension or disbarment, indeed because I want to get on with my life. For this reason I have agreed, as has Mr. Wade, to accept the resolution of disagreement I may have had with him in the past.

O'Hare testified that neither she nor any of the other women signed such an affidavit because it did not reflect the way they felt. Instead, they signed an affidavit that said:

I do not wish to personally pursue the grievance. However, I am aware that this is no longer my decision but rather the Commission for Lawyer Discipline for the State of Texas. I'm giving this affidavit in connection with my resolution with Mr. Wade and because he was advised by Mr. Ted Halbach the individual filing cannot withdraw such a complaint once the Commission for Lawyer Discipline for the State Bar of Texas has taken action thereon.

O'Hare testified that she did not want to do anything to hinder the Commission from proceeding with its action against appellant.

On July 8, 1994, the State Bar of Texas wrote appellant that the Grievance Committee had concluded that he had engaged in professional misconduct. Appellant refused to accept the committee's settlement offer, and the disciplinary proceeding in the trial court ensued.

O'Hare testified that appellant never told her of the need for a contingency fee contract to be in writing signed by the attorney and the client, for it to state the method for determination of the attorney's fees, or for it to state how expenses would be deducted. This information was important to her to make an informed decision regarding appellant's representation.

Appellant testified that his exhibit 16, although not signed by anyone, was the written fee agreement he had with the women; that it was not signed by anyone, nor required to be; and that it does not say what expenses are to be paid and by whom. He admitted that he had no written agreement with the women up until the night of mediation.

Appellant knew the women were challenging any attorney's fee above 33 1/3 percent. He nevertheless paid himself 35 percent to 36 percent of the settlement and did not safekeep the two to three percent of his fee that was in dispute.

Following Halbach's testimony, appellant moved for instructed verdict due to lack of jurisdiction. Appellant contended the court did not comply with sections 2.11-2.13 of the Texas Rules of Disciplinary Procedure, 2 requiring that the Committee make a finding of "just cause." The court denied the motion.

Then, appellant presented an alternative motion for instructed verdict, based on section 3.08(F) of the Texas Rules of Disciplinary Procedure. 3 In it, he argued that because four of the five complainants did not cooperate in the prosecution of the action and all five signed affidavits saying they did not personally wish to pursue the grievance, the action should be dismissed. The court denied that motion.

The judgment suspended appellant for 90 days and for 15 additional months of probated suspension. Appellant moved for new trial and twice requested findings of fact and conclusions of law. No findings of fact or conclusions of law were filed.

Under the same trial court cause number as the original discipline proceeding, the court, on January 29, 1996, signed an order revoking appellant's probation. On May 20, 1996, appellant filed a separate cash bond, presumably in an attempt to perfect an appeal of the order of revocation.

Motion to Dismiss Second Appeal

Appellee, the Commission for Lawyer Discipline (CLD...

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