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In Hall, however, the supreme court held that, because the chancellor was given unrestricted authority to interpret federal privacy law, the allegation that he misinterpreted the law did not constitute an ultra vires act or an exception to sovereign immunity.
Summary of this case from Paxton v. Comm'n for Lawyer DisciplineOpinion
No. 07-18-00336-CV
07-23-2020
COMMISSION FOR LAWYER DISCIPLINE, APPELLANT v. STEVEN N. HALL, APPELLEE
On Appeal from the 223rd District Court Gray County, Texas
Trial Court No. 37,186; Honorable Charles M. Barnard, Presiding by Special Assignment of the Texas Supreme Court
ORDER ON MOTION FOR REHEARING
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Pending before this court is Appellant's Partial Motion for Rehearing by which the Commission for Lawyer Discipline seeks a modification of this court's opinion dated May 7, 2020, affirming the trial court's directed verdict in favor of Appellee, Steven N. Hall, on alleged violations of the Texas Disciplinary Rules of Professional Conduct. See Comm'n for Lawyer Discipline v. Hall, No. 07-18-00336-CV, 2020 Tex. App. LEXIS 3894 (Tex. App.—Amarillo May 7, 2020, no pet. h.). While the Commission's Motion for Partial Rehearing is denied, we nevertheless withdraw our opinion and judgment dated May 7, 2020, and in lieu thereof, substitute the following opinion and judgment.
Since the issuance of our opinion, it has come to this court's attention via a Suggestion of Death filed by Mr. Hall's counsel that Mr. Hall passed away on July 5, 2020.
The issue presented for our decision in this case is a narrow, but somewhat complicated one. Appellant, the Commission for Lawyer Discipline, brought a disciplinary proceeding against Appellee, Steven N. Hall, alleging a violation of certain enumerated rules of the Texas Disciplinary Rules of Professional Conduct. At the conclusion of the Commission's evidence in a bench trial and after the Commission had "rested," the trial court granted a "directed verdict" in favor of Hall. The Commission now brings this limited appeal pertaining to its claim that Hall violated Rule 1.05(b)(3), relating to the improper disclosure of confidential client information. The Commission does not appeal the dismissal of the other rule violations alleged. We affirm.
The Texas Disciplinary Rules of Professional Conduct appear at Article X, Section 9, of the State Bar Rules, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G, app. A (West 2019).
And herein lies the complication. Because this was a bench trial, the trial court expressly considered the "motion for directed verdict" to be a motion for judgment since the fact-finding decision was not one being taken away from a jury. Where, as here, the presiding judge, acting as fact finder, believes there is no evidence regarding an essential element of the plaintiff's cause of action upon resting, and he enters a take-nothing judgment on that cause of action, a reviewing court must apply the same standard of review that would be applied following a conventional trial on the merits.
BACKGROUND
Relevant to this limited appeal, Hall is an attorney, licensed by the State Bar of Texas to provide legal services to clients in the State of Texas. As such, his conduct as an attorney is subject to the Texas Rules of Disciplinary Procedure and the Texas Disciplinary Rules of Professional Conduct. See TEX. GOV'T CODE ANN. § 81.072(d) (West 2013). In 2012, a complaint was filed with the Commission, alleging the violation of certain rules, leading to the filing of a formal disciplinary action pursuant to the State Bar Act. See id. at § 81.001 - .156. The Disciplinary Petition alleged that in October 2010, Hall was retained to represent the complainant, Yolanda Trevizo-Garcia, in connection with an immigration matter. According to the original petition, Hall "failed to do any significant legal work" on Yolanda's case, and he "failed to carry out completely the obligations that he owed to [Yolanda] during the course of representation." Furthermore, Hall allegedly failed to keep Yolanda "reasonably informed about the status of her case, and he failed to promptly comply with [her] reasonable requests for information regarding her matter." The petition went on to complain that, during the course of his representation, Hall "engaged in conduct constituting dishonesty, fraud, deceit or misrepresentation."
The record contains conflicting evidence as to whether Yolanda Trevizo-Garcia is male or female. Because that fact is not outcome-determinative, we will follow the lead of counsel and, for purposes of gender identification, address the complainant as female.
The Disciplinary Petition also alleged that when Yolanda discharged Hall in October 2011, he "failed to refund advance payments of a fee that had not been earned." The Commission, in its petition, further averred that Hall's acts or omissions constituted violations of Rules 1.01(b)(1), 1.01(b)(2), 1.03(a), 1.03(b), 1.15(d), and 8.04(a)(3). The Honorable Charles M. Barnard, of the 89th District Court, Wichita County, Texas, was specially appointed by the Texas Supreme Court to preside over the proceeding. On May 21, 2018, the matter was tried to the bench. At the conclusion of the Commission's evidence, both testamentary and documentary, Hall moved for a directed verdict. After consideration of the record and the arguments of counsel, Judge Barnard granted the motion and entered a final judgment finding that Hall had not engaged in professional misconduct as alleged in the Commission's First Amended Disciplinary Petition. As stated above, by this limited appeal, having abandoned the other violations alleged, the Commission contends the lower court erred by granting a directed verdict on the single allegation that Hall violated Rule 1.05(b)(3) by improperly disclosing confidential client information. See TEX. GOV'T CODE ANN. § 81.0751 (West 2013) (providing that the Commission or a respondent attorney may appeal the judgment of a district court "as in civil cases generally"). Relevant thereto, Judge Barnard entered Findings of Fact and Conclusions of Law that (1) there was no evidence or, in the alternative, there was insufficient evidence that Hall "used confidential information of a former client (Yolanda Trevizo-Garcia) to the disadvantage of the former client . . . after the representation had concluded" and (2) Hall "did not violate [Disciplinary Rule] 1.05(b)(3)." By a single issue, the Commission takes issue with the trial court's finding that Hall did not violate Rule 1.05(b)(3).
STANDARD OF REVIEW
The standard of review to be applied in this case is outcome-determinative. The Commission contends the proper standard of review to be applied is the standard a reviewing court would apply in a situation where the trial court, by granting a directed verdict, deprives a party of the right to have a jury decide any factual disputes. Under the facts of this case, the application of such a standard would be incorrect. The proper standard of review in a bench trial, following the completion of the plaintiff's case-in-chief, where the trial court enters a judgment in favor of the defendant, would be the same standard a reviewing court would apply following a conventional trial on the merits.
As generally stated, under the standard advocated by the Commission, if there is any evidence of probative value to raise a fact issue on a material question, the issue must go to the trier of fact and a directed verdict would be improper. See Exxon Corp. v. Emerald Oil & Gas Co. L.C., 348 S.W.3d 197, 217 (Tex. 2011). See also Allen v. State Farm Lloyds, No. 05-16-00108-CV, 2017 Tex. App. LEXIS 7211, at *10 (Tex. App.—Dallas Aug. 1, 2017, pet. denied) (mem. op.). Under this standard, in determining whether an issue is raised on a material fact, the appellate court must consider all of the evidence in the light most favorable to the party against whom the directed verdict was entered, resolving all reasonable inferences in that party's favor, and discarding all contrary evidence and inferences, provided, however, that the reviewing court may not disregard evidence that allows only one inference. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). According to the Commission's position, under this standard of review, a trial court's directed verdict is reviewed de novo under the same standards used in a legal sufficiency analysis. See John v. Marshall Health Servs., Inc., 91 S.W.3d 446, 450 (Tex. App.—Texarkana 2002, pet. denied) (citing City of Keller, 168 S.W.3d at 823).
By way of contrast, the appropriate standard of review mandates that a reviewing court consider the evidence in the light most favorable to the verdict and that it indulge every reasonable inference that supports the verdict. City of Keller, 168 S.W.3d at 821-22. The evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the verdict under review. Id. at 827. In our review, this court must credit favorable evidence if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could not. Id.
Therefore, because the trial judge was the sole trier of fact concerning the credibility of the witnesses and of the weight to be given to their testimony, we must give deference to his findings if supported by the evidence. Id. at 819. Furthermore, as the reviewing court, we may not substitute our judgment for that of the trial judge, so long as the evidence falls within the zone of reasonable disagreement. Id. at 822. But if the evidence allows only one inference, neither the trial judge nor this court may disregard it. Id. Additionally, where a directed verdict is based on a question of law, we review that aspect of the ruling de novo. Id.
TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT
Rule 1.05(b)(3) of the Texas Disciplinary Rules of Professional Conduct provides, "[e]xcept as permitted by paragraphs (c) and (d), or as required by paragraphs (e) and (f), a lawyer shall not knowingly: . . . (3) [u]se confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known." TEX. DISCIPLINARY RULES OF PROF'L CONDUCT R. 1.05(b)(3). As the Commission has noted in its brief, this rule is born out of "sound principles of agency law" and forbids an attorney from using confidential information "in a manner disadvantageous" to the client. Id. (Comment 8).
While Hall argues in his brief that his conduct falls within one of the exceptions found in Rule 1.05(b), we need not reach that argument. See TEX. R. APP. P. 47.1.
Confidential information includes both "privileged information" and "unprivileged client information." Id. at Rule 1.05(a). "Privileged information" means "information of a client protected by the lawyer-client privilege of Rule 503 of the Texas Rules of Evidence . . . or by the principles of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates." Id. "Unprivileged client information" includes "all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client." Id.
ANALYSIS
Here, the Commission contends Hall violated Rule 1.05(b)(3) when he filed a Motion to Withdraw as counsel for Yolanda, in a federal immigration proceeding, wherein Hall alleged that she had "provided false information to Immigration and Customs Enforcement [ICE] officers when processed at the Amarillo, Texas substation of Border Patrol." At Hall's disciplinary trial, no evidence was introduced as to how Hall came to form that opinion or, for that matter, whether Yolanda had ever, in fact, provided false information to any ICE agent. To the contrary, there was evidence that Yolanda was able to remain in the United States with the assistance of new legal counsel.
The only direct evidence concerning the matter was Respondent's Exhibit 26, a hearsay letter from Hall's attorney to the Associate Disciplinary Counsel for the Executive Office for Immigration Review, wherein Hall's counsel offered his opinion that Hall believed Yolanda's bond in the immigration proceeding had been increased because she "provided contradictory or false information to ICE agents regarding the circumstances of her entry and the duration of her presence in the country." Even assuming the trial court considered this evidence and believed it, the only direct conclusion that can be drawn from that evidence is that Hall believed (correctly or incorrectly) that Yolanda had provided false information to ICE agents. In this context, what Hall may have believed was not "privileged" or "confidential information." There was no evidence, from Yolanda, or otherwise, that indicated that Hall's belief was based on "information of a client protected by the lawyer-client privilege of Rule 503 of the Texas Rules of Evidence . . . or by the principles of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates." Furthermore, there was no evidence that such information was ever furnished by Yolanda to Hall. Even if we were to assume that Respondent's Exhibit 26 inferentially established that Yolanda had provided this information to Hall, we are required to construe the evidence in favor of the judgment, not against it. The closest the Commission can come to establishing the disclosure in question as "confidential information" is the argument that it must be "information relating to a client . . . other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client." Yet, even then, to do that we would be required to construe inferences against the judgment, which we cannot do.
Because the evidence presented, together with reasonable inferences that might be drawn from that evidence, supports the trial court's finding of fact that Hall did not use confidential information to the disadvantage of his former client at a time after his representation had concluded and because the trial court's conclusion of law that Hall did not violate Rule 1.05(b)(3) of the Texas Rules of Professional Conduct is not incorrect as a matter of law, or otherwise inconsistent with the law applicable in a civil disciplinary proceeding, we must conclude the trial court did not err in granting Hall's motion for a directed verdict in this case. Accordingly, the Commission's sole issue is overruled.
CONCLUSION
The trial court's judgment is affirmed.
Patrick A. Pirtle
Justice