Opinion
No. 04-03-00480-CV
Delivered and Filed: February 16, 2005.
Appeal from the 288th Judicial District Court, Bexar County, Texas, Trial Court No. 2000-CI-10620, Honorable Ben Hardin, Judge Presiding.
The Supreme Court of Texas appointed the Honorable Ben Hardin, Judge of the 23rd District Court of Brazoria County, Texas, to preside over this disciplinary action.
Affirmed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Morris Kirschberg appeals the trial court's judgment of public reprimand, arguing the evidence is insufficient to support the trial court's finding "that, in representing Adam Hinshaw, [Kirschberg] violated Rules 1.01(b)(1), 1.01(b)(2), 1.03(a), and 1.03(b) of the Texas Disciplinary Rules of Professional Conduct. . . . Without limitation as to other findings, the Court finds that [Kirschberg] did not take sufficient action to communicate to his client [Adam Hinshaw] the importance of attending the trial on May 5, 2000." We disagree and affirm the trial court's judgment.
Rule 1.01 provides in part:
(b) In representing a client, a lawyer shall not:
(1) neglect a legal matter entrusted to the lawyer; or
(2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients.
(c) As used in this Rule, "neglect" signifies inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients.
Tex. Disciplinary R. Prof'l Conduct 1.01(b), (c), reprinted in Tex Gov't Code Ann., tit. 2, Subtit. G app. A (Vernon 1998). Rule 1.03 provides:
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Id. R. 1.03.
As the Commission argues, "[t]he crux of this case is Kirschberg's lack of adequate communication with Mr. Hinshaw during the representation so that Mr. Hinshaw could make informed decisions regarding his divorce." This lack of adequate communication is apparent even from the March 18, 1999 sixteen-minute telephone call that initiated the representation. The call was placed to Kirschberg's office by Hinshaw's girlfriend, Donna Banta, from Hinshaw's and Banta's home in Illinois and handled not by Kirschberg but by his law clerk, Alan Buckley. During this telephone call, Hinshaw and Banta explained that Hinshaw had a son, Karter, with Kathryn Hothan, whom Hinshaw had later married and with whom he had briefly lived. Hinshaw had recently received from Hothan's attorney a copy of a petition seeking a divorce, custody of Karter, and child support, along with a letter requesting that Hinshaw sign a waiver of citation. According to Buckley, during this initial telephone conversation, he read to Hinshaw and Banta the Texas statute requiring a putative father to deny paternity in order to obtain paternity testing. After this sixteen-minute telephone call, it was Buckley's understanding that Hinshaw's interest "was in denying paternity" and "get[ting] by as cheaply as he could" with respect to past and future child support. Accordingly, on Hinshaw's behalf but without his prior review, Kirschberg filed an answer and a counterpetition specifically denying paternity and requesting paternity testing. In fact, however, Hinshaw had never denied being Karter's father and did not authorize a specific denial of paternity. Hinshaw later instructed Kirschberg to drop the request for paternity testing; but Kirschberg never filed an amended pleading. And, other than a few unfruitful telephone calls to Hothan's attorney in December 1999, it does not appear Kirschberg ever followed up on Hinshaw's repeated request that Kirschberg establish Hinshaw's right of access to and visitation with Karter.
After filing Hinshaw's answer on April 29, 1999, and his counterpetition on May 3, 1999, Kirschberg had one three-minute telephone conversation with Hinshaw. Kirschberg had no other substantive communication with Hinshaw until August 26, 1999, when at 9:45 p.m. Kirschberg left on Hinshaw's answering machine a message informing him that he needed to be in San Antonio at 9:00 a.m. the following morning for a hearing on Hothan's motion for temporary orders. Buckley testified that Kirschberg had not learned of the hearing until August 26; and it ultimately did not take place. But Kirschberg never relayed this information to Hinshaw.
Another hearing was set for December 3, 1999. Again, Kirschberg failed to notify Hinshaw. Hothan, on the other hand, appeared at the hearing and gave sworn testimony that was in part the basis for the terms of the final decree.
By March 2, 2000, Hinshaw was plainly frustrated, as evidenced by the following letter signed by Banta for Hinshaw:
Adam I are still waiting to hear from you as to what is happening with this case. I have left several messages for you with no reply. Adam I would like you to continue with this case, but we would like things to be a little easier to deal with. I have spoken to the Texas State Bar Association, and per their advise we are asking you to do the following and resolve this much over due divorce.
In the remainder of the letter, Hinshaw and Banta asked Kirschberg to request visitation with Karter, provide for Hinshaw to receive sole custody if something were to happen to Hothan, Hinshaw "to carry Karters [sic] Medical Insurance, etc.," and "Child support to begin upon ruling on this case . . ." If Kirschberg did not wish to continue representing Hinshaw, he was asked to refund Hinshaw's deposit and turn over his file. Kirschberg was asked to respond to the letter by March 6. Kirschberg responded that Hinshaw still owed him money; he would no longer communicate with Banta; and he sought instructions directly from Hinshaw. On March 7 Hinshaw sent Kirschberg another letter, repeating the requests in Banta's letter and stating:
Why are we waiting for them? If they, the other party, are not responding to your/our requests, what are WE waiting for? I asked you back in November, when we dropped the paternity issue, to request visitation, get child support set and put in writing that if anything were to happen to Kathy, I would get custody of Karter. Was this done? We never received any documents from you requesting it. This is what we were trying to find out the response to with all the phone calls to you in February, feeling it had been plenty of time to respond, or receive paperwork from you. . . . . If I need to be there, give us the date as soon as possible.
Kirschberg did not respond to this letter at all.
When Hothan's attorney filed a motion to set the case for a final hearing on May 5, 2000, Kirschberg sent a copy of the motion and accompanying fiat to Hinshaw but, in their subsequent five-minute telephone conversation, did not explain to Hinshaw the importance of his attending the hearing. Kirschberg admitted he made no attempt to ascertain whether Hinshaw would attend the hearing or arrange a pre-hearing meeting. Nor did Kirschberg later communicate to Hinshaw what had transpired at the May 5 hearing. Indeed, Hinshaw did not hear from Kirschberg again until July 31, 2000, when he received a draft of a divorce decree reflecting the trial court's rulings. When Hinshaw expressed dissatisfaction with several of the decree's terms, Kirschberg indicated he would try to negotiate better terms; but, without again speaking with his client, Kirschberg agreed to the terms of a decree signed on August 9, 2000. We hold the evidence recited above is legally and factually sufficient to support the trial court's finding that Kirschberg violated Texas Rules of Professional Conduct1.01(b)(1), 103(a), 1.03(b), 1.01(b)(2), and 1.01(b)(2).
Kirschberg argues that he fulfilled his duty to Hinshaw by sending him a copy of Hothan's motion to set the case for a final hearing on the May 5, 2000 hearing. We are inclined to disagree. Whether receipt of a copy of a motion to set and fiat would be sufficient to inform a client that a trial date had been set and that it was important that the client attend the trial would, it seems to us, rest entirely upon the client's level of sophistication and familiarity with the legal process. But whether receipt of a copy of motion to set would be sufficient in the abstract is immaterial. It was not sufficient in this case, as is made clear by Hinshaw's testimony that he did not know what the notice "was for, what was going to happen on May the 5th"; and neither Kirschberg nor anyone else in his office ever explained its significance. Kirschberg's argument also ignores the trial judge's statement that his finding that "[Kirschberg] did not take sufficient action to communicate to his client [Adam Hinshaw] the importance of attending the trial on May 5, 2000" was "[w]ithout limitation as to other findings." And the record is silent on any formal efforts Kirschberg made to follow up on Hinshaw's repeated request that Kirschberg establish Hinshaw's right of access to and visitation with Karter.
Because the evidence is legally and factually sufficient to support the trial court's finding that Kirschberg violated Texas Rules of Professional Conduct1.01(b)(1), 103(a), 1.03(b), 1.01(b)(2), and 1.01(b)(2), we affirm the trial court's judgment.