Wednesday, January 3, 2018

Albert G. Hill, Jr. v Shamoun & Norman, LLP - Motion for Leave to File Amicus Curiae Brief by a Member of the Public .


Albert G. Hill, Jr.
Shamoun & Norman, LLP

On Petition for Review
From the Fifth Court of Appeals, Dallas, Texas 
(No. 05-13-01634-CV)

Motion for Leave to Submit Post-Submission Amicus Curiae Brief
By a Member of the Public

December 31, 2017

To the Honorable Texas Supreme Court minus Justice Guzman:
            Comes now the undersigned member of the public and respectfully seeks leave to weigh on the Shamoun vs Hill fee fight in that nondescript capacity.
The public cares little that a billionaire may have to part with a few more millions on top of the one million he has already spent of his own volition on a drawn-out legal fight, however epic.
That said, the public has a dog in this fight if the Court should change the rules for charging clients – i.e. consumers of legal services -- more generally, and declares open season on ex-clients of Texas attorneys under a repurposed theory of quantum meruit that might be dubbed quantum meruit plus.  
According to the Attorney General, arguing as Amicus for the State, Hill vs. Shamoun is an open-and-shut case. A matter of giving effect to the statute of frauds that governs the enforceability of contingent fee agreements. No more, no less.
The fact that this case has seen oral argument after amici interjections in triplicate and full briefing on the merits -- and still remains in “awaiting opinion” limbo at the end of the year -- carries portends. All omens intimate that the Court is seriously considering not enforcing the statute of frauds as urged by Hill and the State. If that be the case, the Court would be making substantive public policy for the legal services market in Texas, and the public should be allowed to have a voice in that policymaking process too.
Since the existing rules permit non-parties to participate only via amicus brief, the public should be allowed to use that channel to have its voice heard in the decision-making forum that has the power to make, unmake, or remake common law doctrines such as quantum meruit, and the power to pass judgment on the constitutionality, if not the wisdom, of acts of the Texas Legislature.
The undersigned member of the public therefore prays that the Court will allow for wider participation in the supreme decision-making process on the matter of extra-contractual fee recovery by Texas attorneys, and offers to submit the first such public-member amicus brief, should the Court decide to permit it.
A.    Quantum meruit recovery is a court-fashioned remedy
            On the assumption that the will of the Legislature, as expressed in the statute of frauds, should be followed, Shamoun v Hill is an easy case. The Fifth Court of Appeals should have affirmed the take-nothing judgment in Hill’s favor in an unpublished opinion. [Docket for 05-13-01634-CV]. The Dallas Court clearly erred in purporting to apply to barratry-exception to the statute of frauds that was not even yet in effect, and would not even cover the fact scenario of this case, had it been in effect.
On petition of review, this Court should accordingly have reversed the Dallas Court of Appeals in a per curiam opinion, and should summarily have rendered judgment that Shamoun take nothing.[1] The High Court nevertheless granted the petition for review and scheduled oral argument. This factum alone compels the conclusion that the Court is seriously considering either gutting the statute of frauds governing contingent fee agreements, or fashioning an exception in the exercise of the court’s power to redefine and alter the common law, an exception the Texas Legislature has not seen fit to write into the relevant statute itself.  
            Quantum meruit is, after all, an equitable doctrine, rather than a statutory cause of action. To the extent the Court finds merit in Shamoun’s argument, the Court will necessarily exercise not only its power to create a work-around to circumvent the statute of frauds, but will also have to weigh in on the matter of the proper measure of “damages” on a quantum meruit claim; i.e. whether the quantum may be based in whole or in part on results obtained, and how success is measured in monetary terms when it involves avoidance of damages or other adverse outcomes, such as criminal liability for perjury.
It is respectfully submitted that these are public policy questions, and that the High Court – if it is to act as policy-making institution – should allow for the participation of a wider constituency of stake holders, not just attorneys with vested interests in the matter, and a rare billionaire ill-positioned to speak for the average consumer of legal services, even with the best of appellate talent that money can buy at his command.
A precedent-setting high-court decision on extra-contractual quantum meruit fees should be based on consideration of arguments and articulations of interests by a more representative segment of the affected population, - one that goes beyond the attorneys in private practice as an occupational category and their collectively shared economic interests. After all, most of the payors of attorney’s fees are not attorneys, and the vast majority are not millionaires. The public should accordingly be invited to submit amicus curiae letters and briefs in their own behalf and in defense of their shared interest in not being overbilled and overcharged, and in not being sued for legal fees that they did not agree to pay.  
B.     No good cause for exemption from the statute of frauds  
Gregory Shamoun is a top-notch lawyer and a sophisticated party. He was fully aware that he needed to obtain the client’s signature on the client’s alleged promise of an extraordinary “success fee” for him to collect it by force, should the client not pay him voluntarily. By proceeding without an agreement compliant with the statute of frauds, Shamoun assumed the risk of not getting paid. There is no good reason why the High Court should bend over backwards to protect Shamoun from the consequences of his own omissions, not to mention gutting the statute of frauds in the process.
The Texas Legislature saw fit to write a barratry-exception into the statute to cover a scenario where the attorney was not at fault. If the Legislature had seen fit to provide for other exceptions, it could have done so. The Legislature may yet do so in the future, but it would be bad policy. In any event, the statutes in effect at the relevant time governs this case, and there is no question that Shamoun did not comply with the statute. This is not to say that Shamoun committed a violation of law. He merely did not follow the requirements necessary to enforce his claim predicated on a verbal promise of a success fee in a court of law. He and other attorneys who commit similar error (whether on purpose or negligently) should be left to face the consequences of their omissions, rather than having this court create a special rule in an ad hoc fashion to accommodate their pecuniary interests in soaking an exceptionally well-heeled client who can afford to pay several millions more, whether he telephonically agreed to it or not.  
C.     No reason to countermand the Legislature when constitutionality is not an issue.
No one has argued that the statute of frauds at issue in this case is unconstitutional. It should accordingly be given effect as written. Shamoun must be presumed to have been aware of the law that governs attorneys, and even if he was not, that hardly provides a valid excuse for an exemption. Contrary precedent would encourage other lawyers to provide services without a written agreement, and then sue their clients for exorbitant (or merely unaffordable) fees in quantum meruit. Which would have the further effect of forcing the (former) client to hire another lawyer to defend against the quantum meruit fee claim, thus incurring liability for even more fees.  If fees-on-fees litigation be good labor policy to address the oversupply of lawyers and scarcity of legal work thanks to computer-based automation and other developments reducing demand, the Texas Legislature should provide for it by statute.
D.    Oral argument confirms the entirely contingent nature of Shamoun’s claim for additional compensation.
To its credit, the Court makes recorded oral arguments available not only to attorneys-at-law, but to the media and to the public-at-large likewise. Alas, the privilege has not been extended to include the case records on appeal as to the latter two categories of stakeholders. [oral argument in Hill v Shamoun | Transcript ]
            Nevertheless, having listened to oral argument presented by the distinguished high-octane attorneys for the parties, and the questions and answers between bench and rostrum, it is crystal clear, if any more crystal clear it could be after full briefing on the merits, that the enormous fee sought by Shamoun is a contingent fee, and that it would not have been sought, had the “spiderweb litigation” resulted in a debilitating sting, rather than a favorable settlement. It also appears that Shamoun did not even pursue a claim for what would be a much smaller fee amount on a non-contingent quantum meruit theory; - one that would presumably utilize the lodestar method for calculating the quantum.
            Since the record on appeal is not available to the public via the court’s website, it is less clear what exactly happened with the non-contingent claim for attorney’s fees as an alternative theory of recovery (albeit a recovery that would pale by comparison with the amount sought by Shamoun and would be presumably be capped at 150 x $600, based on lodestar-type evidence presented at trial).
E.     Quantum meruit in the absence of a written attorney fee agreement
Neither side appears to question that quantum meruit recovery should be available when there is no written fee agreement, absent a contingency condition. Given the special and sensitive nature of the attorney-client relationship, and the unequal bargaining power between most pairs of attorneys and clients – this understanding, which is no doubt shared by most litigating attorneys as an occupational class – should not go unchallenged as a matter of public policy because it entails lack of transparency in the market for legal services. Quite simply, as a basis principle of the free market economy, the price should be known before the purchase, so as to allow for comparison shopping and competition. Not to mention market discipline. What Shamoun endeavored to do is have a jury determine his price after the fact, with the intent to then use the coercive powers of the court to force the former client to pay it.
While the Texas Supreme Court regulates the practice of law and promulgates rules governing litigation, the policy issue should be addressed by statute. Although it would be good public policy and would make the market for legal services more efficient, the Legislature has not seen fit to enact a requirement that any and all fees to be paid for non-contingent legal services be based on a retainer agreement in writing as a condition of enforceability in the event of nonpayment.
            But the Texas Legislature, in its collective wisdom, decided to require a written and signed contract for contingent fee contracts to be valid and enforceable. Oral argument confirms once more -- if any further confirmation were needed -- that Shamoun sought a contingent fee. Counsel for Shamoun pleaded with the Court to focus on the unique facts that “justify” the enormous fee award, but the whole point of the statute of frauds is that facts as to extraordinary circumstances to justify extraordinary compensation do not matter -- and cannot be considered -- when the basis for success-dependent liability – the required written and signed contract – never came into existence. In this context, the appellate advocate’s focus on unique facts is, much rather, an invitation to his former colleagues to render an unprincipled decision that is both ad hoc and sui generis.    
            The point of the statute of frauds is to not allow for recovery of fees when there is no fee contract compliant with its provisions, i.e. signed by attorney and client, and to deter noncompliance. Since this is a law specifically designed and enacted to regulate lawyers and their dealings with clients, it should be enforced as written, lest other lawyers feel free to ignore other rules governing the privilege of practice, and then come to this Court seeking special dispensation and consideration of the totality of the unique circumstances. If they can afford it.  
In this case, it is plain to the naked eye, and not just to the petitioner-parroting amici, that Shamoun’s extra-contractual fee claim is a contingent one that falls under the statute of frauds. If this Court embraces the proposition that the purpose of the common-law quantum meruit doctrine is to authorize fee recovery when fee recovery is expressly prohibited by the statute of fraud, which renders noncompliant agreements invalid, then this Court has established itself has ultimate policy maker and countermanded the will of the Legislature.
Shamoun’s argument must be rejected. If this Court is nevertheless inclined to rule for Shamoun or carve out an exception to the statute of frauds, the public should be given an opportunity to weigh in with amicus submissions. And they will not merely parrot the three amici for Hill in the pre-grant stage because there are larger issues concerning Arthur Andersen, lodestar, and alternative approaches to measuring the dollar value of legal services.
The Court might consider issuing a press release on its website and via the OCA’s twitter account, or a procedural order to request such public participation in decision-making.  
            If this Court creates an attorney-friendly exception to the statute of frauds using its power to evolve the common law as it governs quantum meruit claims, then this Court has established itself as an arbiter over what public policy should be in denigration of the will of the Legislature, which has clearly spoken on the matter, rather than having merely remained silent. The Court would in effect have preempted an act of the Legislature without finding such act unconstitutional or even bad public policy, rather than acknowledging that the Legislature has preempted the common law of quantum meruit to the extent it conflicts with the statute of frauds enacted to regulate attorney fee recovery in contingent fee cases.                                                                                                 Respectfully submitted,

    [Member of the Public]


No. 16-0107

Albert G. Hill, Jr.
Shamoun & Norman, LLP
On Petition for Review
From the Fifth Court of Appeals, Dallas, Texas (No. 05-13-01634-CV)




Index of Authorities ……………………………………………………  4
Issues Presented ..….……………………………,……………………..  1

I.                    The Shamoun-Hill dispute is as atypical as it can get, factually speaking, but this Court’s resolution thereof will likely impact the vast majority of cases in which the amount in controversy is less than $50,000, and the market-based attorney’s fees are in the range of $150 - $500 per hour.  

II.                 The implications of the issues in this case go far beyond the statute of frauds governing contingent fee contracts and the reasonableness of an hourly fee of $85,000.00, whether imputed or part of an express lodestar calculation.

III.               The briefing of the distinguished legal practitioners on behalf of the parties and the amici in this case fails to address the wider ramifications of the Court’s anticipated ruling on the availability of quantum meruit recovery for attorney work not expressly contracted for.

IV.              If the Court were to rule for Shamoun, it would encourage other attorneys to deceive their clients about the scope of representation, would encourage them to turn the tables on their own clients, and would reward them for colluding with opposing counsel to proffer favorable testimony about their “formidable-foe” status to exaggerate the alleged value of settlements to the former client and the quantum of compensation to be awarded on the quantum meruit claim asserted against the former client.

V.                 This Court should address the matter of how attorney’s fees are properly “priced” in the context of fee-shifting and in the absence of a contractual agreement across the full spectrum of cases, including those involving small or moderate amounts in controversy, which would never make it to the Supreme Court by petition for review or mandamus, and do not therefore provide the High Court with an opportunity to address the attorney-fee issue for the judicial system as a whole and the bulk of the caseload.

VI.              The methodology for judicial determination of the value of legal work in Texas courts should be revisited and revamped to take into account advances in technology.  

A.    The lodestar approach incentivizes inefficient busywork and bill padding, but it also imposes some accountability because it is based on quantifiable measures and requires factual particulars. It thus promotes reasonableness in amounts requested and awarded, transparency, and predictability. As such, it facilitates rational assessments on both sides and settlement. It also enables trial courts to engage in a meaningful review of the necessity of discrete tasks performed in cases litigated to trial, and the reasonableness of the amount of time spent on them. 
B.     The Andersen laundry-list is nebulous, unempirical, and outmoded.
C.     Neither the Lodestar nor the Andersen approach is satisfactory for computer-driven mass litigation that is largely template-driven and automated and requires minimal attorney time as a consequence
D.    While not squarely before this Court, the issue of how legal work is properly appraised in small-value cases at the “retail level,”
and how excessive fees are to be curbed, cries out for high-court attention. 

Issues Argued ........………………………………………………………… 4

A.    The Shamoun-Hill dispute is as atypical as it can get on the facts,
but the issues are not sui generis. …………....……………..…… 4
B.     The implications of the issues raised in this case go far beyond the statute of frauds and the $85,000.00 per-hour-equivalent fee…..… ..............5
C.     The ample briefing fails to address the collateral consequences
of a ruling on viability of quantum meruit recovery for attorney
work not covered by contract………………………………………………………........ 7
D.    Ethical attorneys and law firms would suffer a competitive
disadvantage …………………………………………………....... 8
E.     Lawyers are in a privileged position to know the law
and obtain client consent ……………………………………….  10
F.      The Court should address the “pricing issue” in the absence of an attorney-client contract and in the fee-shifting context ……………….......13
G.    Scenario I: Computer-driven flat-fee mass litigation…………,.. 15
H.    Scenario II: Computer-driven mass litigation with fee calculated
as a percentage of amount in controversy ………........................ 17

Conclusion …...…………………………..……………………………….. 22
Amicus Curiae Statement of Interest ..……………………………………. 23
Certificate of Service………………………………...……………………. 23
Certificate of Word Count ……………………...…………………………. 23

[1] The Court recently stated in a per curiam opinion that “we cannot judicially amend the statute to exempt legal professionals and must, instead, ‘apply the statute as written.’” See In re Coppola, No. 16-0723 (Tex. Dec. 15, 2017), citing Lippincottv. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015)). 

483 S.W.3d 767 (2016)

SHAMOUN & NORMAN, LLP, Appellant and Cross-Appellee
Albert G. HILL, Jr., Appellee and Cross-Appellant.

No. 05-13-01634-CV.
Court of Appeals of Texas, Dallas.
Opinion Filed January 26, 2016.
773On Appeal from the 160th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-10-14714-H
Reverse, Render, Reinstate in part; Reverse and Remand in part; and Affirm in part 

Charles T. Frazier, Jr., Daniel D. Tostrud, Jonathan J. Cunningham, William D. Cobb, Jr., Lindsey K. Wyrick, C. Gregory Shamoun, Melanie Plowman, Dallas, TX, Jennifer R. Josephson, Houston, TX, Douglas W. Alexander, Wallace Jefferson, Austin, TX, for appellants.
Joseph B. Morris, James C. Ho, Tom M. Dees III, Stewart H. Thomas, Rick Thompson, Andrew P. LeGrand, Sr., Michael L. Raiff, Dallas, TX, Broadus A. Spivey, Austin, TX, for appellees.
Before Justices Bridges, Francis, and Myers.


Opinion by Justice Bridges.

This case involves the settlement of lawsuits involving Albert G. Hill Jr. ("Hill"), his son, other family members, family trusts, and business entities. Following a ten-day jury trial, the jury awarded Shamoun & Norman, LLP ("S & N") $7,250,000 in attorney's fees under the theory of quantum meruit for the reasonable value of services it rendered to settle those suits. The trial court, however, set aside the jury's findings and rendered a take-nothing judgment in Hill's favor.

For the reasons set out below, we reverse the trial court's judgment as to S & N's quantum meruit claim and render judgment reinstating the jury's $7,250,000 verdict. We reverse the trial court's judgment as to attorney's fees and remand to the trial court for a determination of S & N's reasonable and necessary attorney's fees in prosecuting the quantum meruit claim. In all other aspects, the judgment of the trial court is affirmed.


Wednesday, July 8, 2015

Texas Attorney General drops challenge to same-sex marriage ruling in Austin probate case involving claim of a common-law marriage and application for heirship by surviving partner

One more same-sex marriage case to be cleared off the Texas Supreme Court's docket before the fiscal year ends  

On July 7, 2015 the Attorney General filed a motion to dismiss the mandamus proceeding in which the AG had challenged a preliminary ruling by Travis County Judge Guy Herman in a probate case in which a same-sex partner sought recognition as an heir based on an alleged informal "common-law" marriage after her partner had died of cancer (apparently without a will). 

In moving for dismissal the Attorney General took the position that the mandamus proceeding he had filed against the judge in that case had become moot based on the recent decisions of the Texas and U.S. Supreme Court in other cases involving same-sex marriage. 

The Texas Supreme Court has yet to issue an order on the motion, but it is unopposed. The expected termination of the mandamus case in the Supreme Court will lift the stay imposed on the trial court, where the case will continue on the merits of the common-law marriage claim by Sonemaly Phrasavath, now that the prohibition of same-sex marriage recognition by Texas law is no longer valid, given that the U.S. Supreme Court has resolved the issue in favor of same-sex marriage as a constitutional right under the federal constitution in Obergefell v. Hodge.  Judge Herman had refused to dismiss the application for heirship by Phrasavath that had been filed by family members of her deceased partner. 


[partial reproduction]

Judge Guy Herman's order finding Texas prohibition of same-sex marriage unconstitutional
Judge Guy Herman's order finding Texas prohibition of same-sex marriage unconstitutional
under the Fourteenth Amended of the federal constitution

(converted from pdf file)
(Click on docket number and follow link to read the original)

No. 15-0135
In the Supreme Court of Texas
IN RE STATE of Texas,

Original Proceeding from
Probate Court No. 1
Travis County, Texas



Relator State of Texas hereby moves to dismiss its petition for writ of mandamus. Real Parties in interest do not oppose this motion.


On February 17, 2015, Probate Court No. 1 of Travis County, Texas entered an interlocutory order in a probate proceeding that Texas Family Code § 2.401, Texas Family Code § 6.204(b), and Article I, § 32 of the Texas Constitution are unconstitutional insofar as they restrict marriage in the State of Texas to a union of a man and woman and prohibit the creation or recognition of marriage to same-sex couples, because such restrictions and prohibitions violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.


MR Tab F at 1. The State immediately intervened and filed a mandamus petition and emergency motion for temporary relief in this Court. The State sought mandamus relief in the form of a stay or vacatur of the probate court’s holding on the constitutionality of Texas law pending this
Court’s resolution of that issue in State v. Naylor, 11-0114, In re Texas, No. 11-0222, and In re J.B. and H.B., 11-0024. On February 19, the Court granted the emergency motion for temporary relief, staying the probate court’s order. The mandamus petition is pending.

On June 19, 2015, the Court decided Naylor and In re Texas, and dismissed J.B. and H.B. without ruling whether Texas marriage law is consistent with the United States Constitution. On June 26, 2015, the United States Supreme Court issued Obergefell v. Hodges, No. 14-556, 2015 WL 2473451 (U.S. June 26, 2015). Obergefell held that the Fourteenth Amendment requires States to allow same-sex marriages and to recognize same-sex marriages from other States. 2015 WL 2473451, at *22-23.



The mandamus relief sought by this petition is moot in light of the Court’s disposition of Naylor, In re Texas, and In re J.B. and H.B., and the United States Supreme Court’s decision in Obergefell. Nevertheless, whether Real Party in Interest Powell can establish a common-law same sex
marriage prior to Obergefell is far from certain, and dismissal of the mandamus petition does not bear on the validity of such a claim. The mandamus petition should be dismissed as moot.


The motion to dismiss should be granted and the stay should be lifted.

 Respectfully submitted.
 Attorney General of Texas
 First Assistant Attorney General
 Solicitor General

 /s/ Michael P. Murphy
 Assistsant Solicitor General
 State Bar No. 24051097

 P.O. Box 12548 (MC 059)
 Austin, Texas 78711-2548
 Tel.: (512) 936-2995
 Fax: (512) 474-2697
Counsel for Relator 



Pursuant to Texas Rule of Appellate Procedure 10.1(a)(5), I certify that counsel for Relator contacted counsel for Real Parties in Interest by telephone and e-mail. Counsel for Real Parties in Interest stated that the Real Parties in Interest do not oppose this motion.

/s/ Michael P. Murphy
 Michael P. Murphy
 Counsel for Relator


 This motion contains 390 words, counted consistent with Rule of
Appellate Procedure 9.4(i)(3).
/s/ Michael P. Murphy
 Michael P. Murphy
 Counsel for Relator 



I certify that on July 7, 2015, the foregoing document was served
via File & ServeXpress or electronic mail upon counsel for real parties in
interest. A courtesy copy was also sent to counsel for real parties in
interest by electronic mail.

Kurt Kuhn
Lisa Bowlin Hobbs
3307 Northland Drive, Suite 310
Austin, Texas 78731
Tel.: (512) 476-6003
Fax: (512) 476-6002

Brian T. Thompson
Craig Hopper
400 W. 15th Street, Suite 408
Austin, Texas 78701
Tel.: (512) 615-6195
Fax: (512) 610-1306

Charles Herring, Jr.
Jess M. Irwin III
1411 West Ave., Ste. 100
Austin, Texas 78701
Tel.: (512) 320-0665
Fax: (512) 519-7580

Catherine A. Mauzy
1717 West 6th St., #315
Austin, Texas 78703
Tel.: (512) 474-1493
Fax: (512) 479-7910

Counsel for Real Party in Interest
Sonemaly Phrasavath


Michael B. Knisely
Jason S. Scott
301 Congress Avenue, Suite 1910
Austin, Texas 78701
Tel.: (512) 542-2000
Fax: (512) 542-2011

Counsel for Real Parties in Interest James Powell and Alice Huseman

Respondent was served a copy by email and by U.S. Mail, sent July 7, 2015.

Hon. Guy Herman
Probate Court No. 1, Travis County, Texas
1000 Guadalupe, Room 217
Austin, Texas 78701
Tel.: (512) 854-9258
Fax: (512) 854-4418

/s/ Michael P. Murphy
 Michael P. Murphy
 Counsel for Relator 

Monday, June 29, 2015

Special interest jurisprudence for Texas lawyers from the State's High Court raises concerns - Second thoughts on Cantey Hanger LLP v. Byrd (Tex. 2015) and whether this is good news for attorneys

As the 2016 election season gets under way, and judicial campaigns are being launched or reactivated (in case of incumbents), the Texas Supreme Court is handing down rulings bound to please Texas attorneys by strengthening their hand vis-a-vis clients and non-clients alike.

Or so it may seem.


Just in time for the start of the 2016 election season, the Texas Supreme Court is throwing some gifts at its most captive constituency, Texas attorneys.

While attorneys make up only a small part of the electorate, they are nevertheless important because an even smaller number of them participates in bar-sponsored judicial evaluations and polls. Judicial candidates like to point to the results of these polls when they are in their favor, and use them to promote themselves as the candidate of choice. Which is particularly important in primary elections, since party affiliation does not provide a voting cue in such intra-party contests.

Here are the latest offerings of the Texas Supreme Court to the legal profession, which it regulates, both handed down on June 26, 2016: Official mark of approval for one-sided attorney-client agreements and attorney immunity to civil claims by opponents.


In Royston, Rayzor, Vickery & Williams, L.L.P. v. Lopez the Court held that there was nothing inherently objectionable ("unconscionable") about a one-sided legal services agreement that forces the client to arbitrate any claims he or she may have against the attorney/lawfirm (most notably, of course, legal malpractice), but allows the legal service provider to take the client to court for not paying the firm's bill. The lawfirm can thus keep its dirty linen out of court (arbitration is private) but will not have the hassle of having to arrange for arbitration and then having to seek confirmation of arbitration award to collect from the client.

The bottom line: Legal malpractice claims can be removed from the court system, and thus from public (and media) scrutiny because arbitration does not create a paper trail in the nature of a public record. Nor an electronic one on the Internet (which makes arbitration proceedings even more attractive, given that trial court records are increasingly available online, too, not just appellate filings and opinions).

But the second decision is even more noteworthy. And more troubling, -- not only for the interests of the public at large, but for the integrity of the legal profession, and the soundness of the Texas Supreme Court's supervision thereof.


In Cantey Hanger, LLP v Byrd, a majority of the Court granted attorneys immunity from lawsuits brought by opponents that are based on the attorney's (or law firm's) conduct while representing a client. The questionable conduct at issue in that case involved the alleged preparation of a fraudulent bill of sale. The opinion was written by Justice Lehrman. To his credit, Justice Green, who is also seeking re-election, dissented.

But are all Texas attorneys' interests really well served by a blanket rule that says you cannot sue an opposing counsel for misconduct committed to advance the interests of his or her client? 

I would submit that the answer is No.

First, most attorneys never face a lawsuit by an opposing party or attorney, meritorious or otherwise. So, they have no occasion to benefit from the immunity ruling.

Second, the immunity effectively shields only those that might otherwise be liable for wrongdoing. For, if a litigant's claim against the opposing counsel has no merit at all, the defendant-attorney could simply invoke the newish dismissal rule designed specifically for quickie dispatch of frivolous lawsuits (RULE 91a), and might even collect attorney's fees upon dismissal of the baseless lawsuit.

An ethical attorney faced with a frivolous claim has no need for blanket immunity from civil lawsuits brought by a disgruntled opponent because the frivolous claim would fail just for that very reason. And it would fail early. A motion to dismiss under Rule 91a must be filed within 60 days after the first pleading containing the challenged cause of action is served on the movant, and must be granted or denied within 45 days from the filing date.


What the blanket immunity from civil suit by non-clients effectively does is to shield wayward attorneys from meritorious claims against them. As such, the common-law immunity is one that mostly clearly confers an advantage upon unethical attorneys by protecting them from being held accountable for their misdeeds through the civil justice system.

There is still the attorney disciplinary system, of course, but as the Court informed us a few years ago, and reminds us in Royston, Rayzor, Vickery & Williams, L.L.P. v. Lopez, the Disciplinary Rules are not binding as substantive law regarding attorneys, although they inform that law. In re Meador, 968 S.W.2d 346, 350 (Tex. 1998). And when a disciplinary complaint is filed by a party opponent, it is inherently less likely to be effective because it is assumed at the outset that the complainant is a sore loser with a retaliatory motive.

And a non-client cannot sue the attorney on the other side of a dispute or court case for legal malpractice because there is no privity of contract between them.

It would seem that rotten scoundrels have the most to gain from the majority opinion of the Texas Supreme Court in Cantey Hanger, LLP v. Philip Gregory Byrd et al. (Tex. 2015).

By contrast, Texas attorneys with high ethical standards who treat their opponents respectfully and honestly rather than underhandedly, have nothing to gain. They may even be harmed to the extent they are placed at a competitive disadvantage, or suffer a direct negative impact on their cases and clients, as a result of the deterrent to wrongful conduct by unethical attorneys on the other side of the case have been removed by the Supreme Court's blanket grant of attorney immunity for acts committed in the rendition of legal services.

It is the Texas Supreme Court's latest addition to its immunity jurisprudence, which -- over the years -- has significantly reduced the availability of the civil justice system to the public, and shrunk its ability to performance its core function.


Cantey Hanger, LLP v. Philip Gregory Byrd et al, No. 13-0861 (Tex. June 26, 2015). Justice Lehrmann delivered the opinion of the Court, joined by Justice Guzman, Justice Boyd, Justice Devine, and Justice Brown. Justice Green delivered a dissenting opinion, which was joined by Chief Justice Hecht, Justice Johnson, and Justice Willett.
Royston, Rayzor, Vickery & Williams, L.L.P. v. Francisco "Frank" Lopez No. 13-1026 and No. 14-0109 (Tex. Jun. 26, 2015); from Nueces County; 13th Court of Appeals District (13-11-00757-CV, 443 SW3d 196, 06-27-13)
Justice Johnson delivered the opinion of the Court. Justice Guzman delivered a concurring opinion, in which Justice Lehrmann and Justice Devine joined.


TEXAS LAWYER article on Attorney Immunity Ruling 

Tuesday, June 23, 2015

J.B. v H.B. Same-sex divorce case - Death of respondent moots Texas Supreme Court appeal

UNTIL DEATH DO US PART: Long-pending same-sex divorce appeal dismissed as moot following death of one of the parties. 
According to a motion to dismiss filed by the petitioner in J.B v. H.B., the respondent in the trial court, H.B. [Henry Buck], died on April 11, 2015, thus rendering the appeal moot. The State agreed, and the case was dismissed by the Texas Supreme Court on June 19, 2015, the same day it issued its opinion in State of Texas v. Daly, the same-sex divorce case from Austin involving a lesbian couple. 

Texas Supreme Court's postcard to deceased same-sex spouse
in same-sex divorce case J.B. v. H.B. who mooted the pending appeal by his death.  
The Attorney General representing the State of Texas did insist, however, that the opinion issued by the Dallas Court of Appeals -- which favored the State -- not be vacated. In re Marriage of J.B. & H.B ., 326 S.W.3d 654 (Tex.App. - Dallas, 2010). 

In re State of Texas, Relator

Court of Appeals of Texas, Dallas.

August 31, 2010.

Supplemental Opinion on Denial of En Banc Reconsideration December 8, 2010.



Opinion By Justice FITZGERALD.

Does a Texas district court have subject-matter jurisdiction over a divorce case arising from a same-sex marriage that occurred 659*659 in Massachusetts? The trial court held that it had jurisdiction and that article I, section 32(a) of the Texas Constitution and section 6.204 of the Texas Family Code, which limit marriage to opposite-sex couples, violate the Equal Protection Clause of the Fourteenth Amendment. We hold that Texas district courts do not have subject-matter jurisdiction to hear a same-sex divorce case. Texas's laws compelling this result do not violate the Equal Protection Clause of the Fourteenth Amendment.

Accordingly, we reverse the trial court's order and remand with instructions to dismiss the case for lack of subject-matter jurisdiction. We also conditionally grant the State's petition for writ of mandamus to correct the trial court's erroneous striking of the State's petition in intervention.


Appellee filed a petition for divorce in Dallas County in which he sought a divorce from H.B., whom appellee alleged to be his husband. Appellee alleged that he and H.B. were lawfully married in Massachusetts in September 2006 and moved to Texas in 2008. Appellee further alleged that he and H.B. "ceased to live together as husband and husband" in November 2008.

Appellee alleged in his divorce petition that there are no children of the marriage, born or adopted, and he requested a division of community property if a property-division agreement could not be reached. He prayed for a divorce, that his last name be changed back to his original last name, and "for general relief." The record contains no answer by H.B.

A few days after appellee filed suit, the State intervened in the action "as a party respondent to oppose the Petition for Divorce and defend the constitutionality of Texas and federal law." The Texas laws in question are article I, section 32(a) of the Texas Constitution and section 6.204 of the Texas Family Code. The federal law in question is the Defense of Marriage Act (DOMA), 28 U.S.C. § 1738C.[1] The State alleged that appellee is not a party to a "marriage" under Texas law, that he is therefore not eligible for the remedy of divorce, and that the trial court cannot grant a divorce without violating Texas law. At the end of its petition in intervention, the State prayed for dismissal of the petition for divorce.

Several weeks later, the State filed a plea to the jurisdiction in which it asserted, inter alia, that the trial court lacked subject-matter jurisdiction because appellee's petition demonstrated on its face that he and H.B. were not "married" as a matter of Texas law. The State asserted that section 6.204(c) of the family code "strips courts of jurisdiction" to confer the legal status of marriage upon any relationship besides the union of one man and one woman—even if only for the purpose of granting a divorce.

The trial court denied the State's plea to the jurisdiction without a hearing. In its order, the court concluded that article I, section 32(a) of the Texas Constitution and section 6.204 of the family code violate the Equal Protection Clause of the Fourteenth Amendment. It further concluded that it 660*660 had jurisdiction "to hear a suit for divorce filed by persons legally married in another jurisdiction and who meet the residency and other prerequisites required to file for divorce in Dallas County, Texas." It ordered "that Intervenor's Plea to the Jurisdiction is denied and that the Intervention filed by the Office of the Attorney General is hereby stricken." The State filed its notice of interlocutory appeal the day after the trial court signed the order. A few days later, the State filed its Conditional Petition for Writ of Mandamus in this Court seeking relief from the part of the trial court's order striking its petition in intervention.

Within twenty days after the court signed the order, appellee filed a request for findings of fact and conclusions of law. The State opposed the request. A few weeks later, the trial court signed both a set of findings of fact and conclusions of law and an amended order denying the State's plea to the jurisdiction. In the amended order, the court made no reference to article I, section 32 of the Texas Constitution, concluded that section 6.204 of the family code violated several provisions of the federal Constitution in addition to the Equal Protection Clause, and concluded that the State lacked both constitutional and statutory authority to intervene. The amended order concluded, "Therefore, the State's Plea to the Jurisdiction is denied and the Intervention filed by the Office of the Attorney General is hereby stricken."

We have consolidated the State's mandamus proceeding with its interlocutory appeal.

Sunday, June 21, 2015

Texas Supreme Court split on AG's appeal of same-sex divorce decree: Majority votes to uphold dismissal for procedural reasons, Justice Willett and two of his peers would have created special rule to permit Attorney General to pursue appeal in the highest court


While the same-sex marriage cases from Travis County (Austin) remain under review, the Texas Supreme Court last Friday (6/19/2015) disposed of two long-pending same-sex divorce cases from Dallas and Austin, respectively. The case from Dallas, which involved two men, was dismissed because one of the parties had died in the interim. Opinion below: In re Marriage of J.B. and H.B., 326 S.W.3d 654 (Tex. App.—Dallas 2010, pet. dism’d). --> Death of same-sex spouse moots Texas Supreme Court appeal.

The other one involved a lesbian couple, Angelique Naylor and Sabina Daly, who had married in Massachusetts and were residents of Texas at the time their relationship failed. After one of them brought a contested suit for divorce, they subsequently settled their differences, resulting in the grant of an agreed divorce. The Attorney General sought to invalidate the judgment after the fact, but was unsuccessful in the courts below.  State v. Naylor, 330 S.W.3d 434 (Tex. App.—Austin 2011).

In the Supreme Court, the AG undertook a two-pronged approach - an appeal from the dismissal by the Austin Court of Appeals and a request for mandamus relief. The attempt to  overturn the divorce decree ultimately resulted in rejection by the Supreme Court for procedural reason. State of Texas v. Naylor, No. 11-0114 (Tex. June 19, 2015)("We agree with the court of appeals that the State lacks standing to appeal the trial court’s decree.").

As it should. The Attorney General had intervened in the Austin case only after the agreed divorce had been granted by the trial judge. The trial court judge disapproved the AG's belated post-judgment intervention and the Third Court of Appeal in Austin dismissed the Attorney General's attempted appeal as a non-party for want of standing and resultant lack of jurisdiction. The Supreme Court likewise found that it couldn't reach the merits because they were not properly before the court.

The Attorney General was the only one to challenge the agreed decree of divorce, and did not have standing to do so because the State was not a party to the case.

But the Supreme Court's resolution was not unanimous, which is the likely reason why it took so long for the court the decide the case. Justice Willett would have exempted the Attorney General from having to play by the same rules, and would have allowed the AG pursue his attack on the same-sex divorce decree even though he had not filed a petition in intervention in a timely fashion. The AG failed to do so fully aware of the pendency of the case involving the same-sex couple. Representative of the Attorney General were even in attendance at the hearing that resulted in an agreed resolution.

Partial snip of June 19, 2016 Orders List, which has links to opinions
and Supreme Court dockets 
Justices Guzman and Justice Devine joined Willett's dissent. Devine also wrote a separate opinion that addressed the merits of the constitutional issues that majority did not reach. Justice Willett nevertheless complained that the State had not been afforded a hearing. Even though the State had made its case in the Third Court of Appeals as well as in the Supreme Court. The majority decided the the merits could not be reached for procedural reasons, but that hardly means that they did not read the briefs and did not ponder the State's arguments.

Justice Boyd sided with the majority, but also wrote a separate concurrence, stressing that the State was not bound by the divorce decree. Lehrmann abstained, with no reasons given. The case was thus resolved on a 5 to 3 vote. But it was not resolved on the merits of the underlying issue: the validity of Texas law as to non-recognition of same-sex marriages. That is the pivotal issue in the cases that remain pending, one involving the grant of a same-sex marriage license pursuant to a district court's order, the other one involving the claim of a common law marriage, and claim to a share of the estate under the intestacy laws, in the probate context.

The case numbers in the Supreme Court are 15-0139 and 15-0135 respectively. Both cases are styled In Re State of Texas

Oddly, Attorney General Paxton released a statement shortly after the Texas Supreme Court confirmed that the lack-of-jurisdiction dismissal of State v Daly was proper in which he asserting that the Court effectively recognized same-sex divorce in Texas. Paxton further complained that the Attorney General should always have a voice in the discussion when the Texas Constitution is at risk. As if the AG did not get a chance to brief its case in two appellate courts, first in the Third Court of Appeals and in then in the Supreme Court of Texas, not to mention being granted oral argument. What Ken Paxton was obviously unhappy about is that the Court did not rule in his favor on the merits.


[Snippet from relevant portion of Table of Contents] 

Editorial note: This post was updated 6/23/2015 


NO. 11-0114






- consolidated with -

NO. 11-0114 



Argued November 5, 2013

JUSTICE BROWN delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE


JUSTICE BOYD filed a concurring opinion.

JUSTICE WILLETT filed a dissenting opinion, in which JUSTICE GUZMAN and JUSTICE DEVINE

JUSTICE DEVINE filed a dissenting opinion.

JUSTICE LEHRMANN did not participate in the decision.

This case arises from the State’s attempt to intervene in a civil action after the trial court had
already rendered final judgment. We must determine whether the court of appeals erred in holding

The State lacks standing to appeal the judgment and, if not, whether the State is entitled to mandamus

relief. We answer both questions in the negative, affirming the decision of the court of appeals and

denying the State’s petition for writ of mandamus.


Texas residents Angelique Naylor and Sabina Daly were married in Massachusetts in 2004.
A few years later, Naylor filed for divorce in Travis County. Because the two women were raising

a child and operating a business together, Naylor hoped to obtain a judgment addressing their

respective rights, some of which they had already settled in a suit affecting the parent-child

relationship (“SAPCR”).

The State of Massachusetts indisputably recognizes this same-sex marriage. Texas, however,

adheres to the traditional definition of marriage and does not recognize same-sex unions. Our
constitution unambiguously provides that “[m]arriage in this state shall consist only of the union of

one man and one woman.” TEX. CONST. art. I, § 32(a). And while other states allow same-sex
unions, Texas is not “required to give effect to any public act, record, or judicial proceeding of any
other State . . . that is treated as a [same-sex] marriage under the laws” of that state. 28 U.S.C. 

§ 1738C; see also TEX. FAM. CODE § 6.204(c)(1) (indicating Texas courts may not “give effect” to
such arrangements).