Wednesday, February 7, 2018

Ronald E. Reynolds v State of Texas - Amicus Curiae Brief in Support of En Banc Rehearing (Appeal of Texas attorney and lawmaker Ron Reynolds' conviction under the anti-barratry statute)


Also see comment: Soliciting clients with 31 days - One Texas lawyer heading to jail, but another one got the barratry statute declared unconstitutional as to him so he could keep soliciting. 

Texas House Rep. Ron Reynolds - Link to official web page
Texas House Rep. Ron Reynolds Official Web Page 

NO. 08-15-00373-CR  



Per Curiam Order Refusing to Consider Amicus Curiae Brief 
February 8, 2018 

Appeal from County Court at Law Number Four
Montgomery County, Texas


February 7, 2018


Dear Chief Justice Crawford McClure as opinion author, and distinguished members of the panel: 
I have no reason to question, nor am I qualified to question, the correctness of the reasoning of the panel leading it to affirm Mr. Reynold’s conviction.
That said, I am very troubled by this case, for reasons that may be less obvious to other people than they are to me, having researched and followed the evolution of the Texas barratry statute, cases brought under it and media coverage thereof, and the sparse appellate case law it has spurred over the course of the past few years.
What concerns me most is that Mr. Reynolds was convicted under a law that others have gotten declared unconstitutional because it interfered with their desire to make money. Additionally, as a result of the conviction, Mr. Reynolds has been suspended from the practice of law.[1]
A.                Solicitation within 30 or 31 days versus later
As I understand it, the Reynolds conviction is one under the Penal Code provisions that says solicitation of professional employment may not happen within 31 days of the occurrence of specified events rather than the more serious forms of barratry that may result in felony prosecution and convictions. One charging instrument is attached to this brief as Appendix B. The hand-written correction on it suggests that the District Attorney was not even sure about whether it should be 30 days or 31 days under the relevant Penal Code provision, which the charging instrument does not even cite.
In all of the parallel Reynolds cases, the predicate event is the accident/collision giving rise to the claim against the tortfeasor (or suspected/putative tortfeasor, at that point). In other fact scenarios under the barratry statute, and for lawyers in other segments of the legal services business, the clock-starting occurrence is the warrant date or the arrest (in criminal cases), or the filing of a civil lawsuit (typically, a debt collection suit). This point may be lost on the ambulance-chasing media, but it should not be lost to the legal community.
Lawyers representing corporations, financial institutions, and insurance companies get their book of business by cultivating relationships with companies and are rewarded with repeat business if they perform to the client’s satisfaction. Lawyers in many other lines, however, whether plaintiff of defense, depend on a steady stream of small cases and once-in-a-lifetime clients to keep the law firm afloat. Is one category of rainmakers inherently more worthy than others? Should mere drizzle-inducers, or – less generously – the bottom feeders – be inherently suspect? And a few of them thrown in jail once in a while to remind them of their lowly status? 
B.                 Rich Reister vs. Wretch Reynolds
A few years ago, one lawyer in the bottom-feeder stratum on the pecking order, Rich Reister in Dallas (pun fortuitous) was sued under the civil barratry statute for soliciting individuals all too promptly after they became defendants in debt collection suits.[2] They likely got a letter from Mr. Reister even before the process server arrived on their doorstep.
Mr. Reister had scooped up the information on these defendants and their addresses (i.e. ”leads” or “prospective clients” in more respectable marketing lingo) from trial court dockets for the purpose of contacting them and pitching his legal services to them. The civil barratry suit subsequently brought against him by Janet Shearer – one of those who had not volunteered to become the focus of attention of either the debt collection lawyer or his opposite number -- made a detour the Dallas Court of Appeals, which resolved the appeal against Mr. Reister. See Janet L. Shearer v Rich Reister & The Law Offices of Rich Reister & Associates, No. 05-12-01475-CV (Tex.App. – Dallas, April 28, 2014, no pet.) (reversing summary judgment for Debt-Defense Attorney Reister on jurisdictional grounds and remanding for further proceedings).   
What is critical, however, is what happened after remand to the trial court. Mr. Reister fixed the jurisdictional problem (having challenged a criminal statute in a civil suit, rather than when being prosecuted) by joining the Dallas District Attorney as a party. And the lawsuit was resolved against the recipient of lawyer-originated direct mail on summary judgment. Shearer’s suit was dismissed.
Last time I looked into this, the trial court’s order entered in Attorney Reister’s favor on remand from the Dallas Court of Appeals was not even available on WestLaw. Nor can it, unlike the Fifth COA’s appellate opinion, be found on Google Scholar.
So, it is reasonable to assume that very few Texas lawyers, including staff attorneys and members of the courts of appeals, even know that it is okay to violate the 30-day solicitation black-out period in Dallas County, but not elsewhere in the State. And that it is quite likely that the same result could be procured in other venues, upon application of sufficient legal savvy and quality law firm muscle.  
The civil barratry statute has since been amended and no longer allows private parties to sue for being solicited by mail within 30 days of being sued. So civil suits like Shearer’s won’t be seen again. But the Penal Code still says it’s illegal.[3] Except it’s not illegal in Dallas County, because a state district court there has declared it unconstitutional and the Dallas District Attorney is bound by that ruling. At least for the benefit of Mr. Reister.   
C.                 The desire to make money is not an inherent wrong
The mens rea element of the offense of barratry is the motivation and intent to make money.[4] But as a general proposition, that is not in and of itself morally repugnant. Indeed, the desire to make money is a fundamental assumption of the free market economy, and in no way compels the conclusion that anyone is harmed.
It is entirely understandable that Mr. Reister did not like this law, but a law it was.
When sued in civil court for violating the barratry statute and facing a $10,000 statutory penalty (or bounty on the head of a lawyer who reached out to help a hapless consumer, depending on viewpoint), Mr. Reister not only “fessed up” voluntarily by admitting that he was violating the barratry law in the regular course of his business, he did so under oath, and he argued that not being able to violate this (unjust) law was interfering with his business and causing him to lose income. See Reister Affidavit in the Appendix at Tab A.   
Mr. Reister affirmatively used his own sworn admission as to violations he had committed intentionally and on a massive scale, to bolster his argument that the statute under which he was (at least in theory) incurring civil and criminal liability, should be declared invalid.
And he succeeded.

In sum, Mr. Reister ultimately prevailed in obtaining an injunction against the Dallas District Attorney precluding the enforcement of the law he had complained of after being sued for violating it.  
The bottom line here is that Mr. Reister’s concerns were accommodated by the judicial system for the benefit of Mr. Reister’s bottom line, but Mr. Reynolds is heading for jail, not having similarly been accommodated. His bottom line is not being padded. His bottom is getting tarred and feathered instead. He is being made a whipping boy. This smacks of disparate treatment under the law.    
D.                Why no constitutional challenge in this case?
It seems to me that Mr. Reynolds, too, should have challenged the constitutionality of the 31-day solicitation black-out statute that he was convicted of violating by proxy.
I have no idea why he did not do it. Perhaps he thinks he is better at denying and lying. The appellate opinion provides plenty of evidence of furtiveness.  I am sure Reynold’s failure to mount a constitutional challenge constitutes procedural waiver, and that this waiver therefore most likely precludes him from raising it for the first time on appeal.
But if incompetence in the handling of his own criminal defense as a pro se in the trial court is the worst he can be accused of, does he really deserve to go to jail for an entire year? Besides, his constituents love him. If that be the result of gerrymandering, rather than a widespread sense that he was not dealt with fairly, it can hardly be laid at his door, or at the doors of his constituents.   
Please reconsider your decision to affirm the Montgomery County jury trial conviction of Texas lawyer and Texas Representative Ronald Eugene Reynolds from Missouri City, and invite legal scholars and other would-be amici curiae with gravitas to weigh in on this issue, after handing down an order withdrawing the opinion affirming that judgment of conviction. 
The fact that Reynolds was tried and convicted in a county in which he did not even have an office is even more troubling considering the enforceability and constitutionality of the barratry/solicitation statue varies among counties within the State of Texas even though the state law of barratry and solicitation is one of general applicability, rather than just a local ordinance.   
Would Ron now “Rap-sheet” Reynolds have been convicted in Judge Moy√©‘s court in Dallas, or would that statute of dubious merit wherein he got snared have been declared unconstitutional as applied to him, or even facially?
It is at least worth exploring this question a bit further, most suitably by a court sitting far away from Dallas, Fort Bend, Harris, and Montgomery Counties.
As are the wider ramifications for society and Texas lawyers, whether they be lions of the Bar with big portable books of business, and big ships steaming in on a regular basis carrying big hauls, or bottom-feeders subsisting on steady diet of debt suits, low-or-no-asset divorces, soft-tissue whip-lashes, and fender-benders.
Respectfully submitted,
Amicus Curiae in Support of Ronald E. Reynolds

[1] See BODA Interlocutory Order of Suspension of Ronald Eugene Reynolds, April 29, 2016, available at: (visited 2/2/2018).
[2] 2012 version of Penal Code § 38.12(d)(2)(D), which prohibited an attorney from soliciting professional employment from a defendant in a civil suit unless the lawsuit in which the defendant was named had been on file for more than 31 days before the solicitation and which was incorporated by reference in the civil barratry statute. §38.12(d)(2)(D). 
The current version of the same provision has a different letter designation: (C) instead of (D):  
See Tex. Penal Code §38.12(d)(2)(C). 
(C)   concerns a lawsuit of any kind, including an action for divorce, in which the person to whom the communication or solicitation is provided is a defendant or a relative of that person, unless the lawsuit in which the person is named as a defendant has been on file for more than 31 days before the date on which the communication or solicitation was provided;
Available at Texas Statutes Online at:
[3] Tex. Penal Code §38.12(d)(2)(C). 
[4] State v. Sandoval, 842 S.W.2d 782, 788 (Tex. App.-Corpus Christi 1992, pet. ref'd) ("The culpability required under the [barratry] statute is the intent `to obtain an economic benefit.'").





Sec. 38.12. BARRATRY AND SOLICITATION OF PROFESSIONAL EMPLOYMENT. (a) A person commits an offense if, with intent to obtain an economic benefit the person:
(1) knowingly institutes a suit or claim that the person has not been authorized to pursue;
(2) solicits employment, either in person or by telephone, for himself or for another;
(3) pays, gives, or advances or offers to pay, give, or advance to a prospective client money or anything of value to obtain employment as a professional from the prospective client;
(4) pays or gives or offers to pay or give a person money or anything of value to solicit employment;
(5) pays or gives or offers to pay or give a family member of a prospective client money or anything of value to solicit employment; or
(6) accepts or agrees to accept money or anything of value to solicit employment.
(b) A person commits an offense if the person:
(1) knowingly finances the commission of an offense under Subsection (a);
(2) invests funds the person knows or believes are intended to further the commission of an offense under Subsection (a); or
(3) is a professional who knowingly accepts employment within the scope of the person's license, registration, or certification that results from the solicitation of employment in violation of Subsection (a).
(c) It is an exception to prosecution under Subsection (a) or (b) that the person's conduct is authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court.
(d) A person commits an offense if the person:
(1) is an attorney, chiropractor, physician, surgeon, or private investigator licensed to practice in this state or any person licensed, certified, or registered by a health care regulatory agency of this state; and
(2) with the intent to obtain professional employment for the person or for another, provides or knowingly permits to be provided to an individual who has not sought the person's employment, legal representation, advice, or care a written communication or a solicitation, including a solicitation in person or by telephone, that:
(A) concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication or solicitation is provided or a relative of that person and that was provided before the 31st day after the date on which the accident or disaster occurred;
(B) concerns a specific matter and relates to legal representation and the person knows or reasonably should know that the person to whom the communication or solicitation is directed is represented by a lawyer in the matter;
(C) concerns a lawsuit of any kind, including an action for divorce, in which the person to whom the communication or solicitation is provided is a defendant or a relative of that person, unless the lawsuit in which the person is named as a defendant has been on file for more than 31 days before the date on which the communication or solicitation was provided;
(D) is provided or permitted to be provided by a person who knows or reasonably should know that the injured person or relative of the injured person has indicated a desire not to be contacted by or receive communications or solicitations concerning employment;
(E) involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; or
(F) contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.
(e) For purposes of Subsection (d)(2)(D), a desire not to be contacted is presumed if an accident report reflects that such an indication has been made by an injured person or that person's relative.
(f) An offense under Subsection (a) or (b) is a felony of the third degree.
(g) Except as provided by Subsection (h), an offense under Subsection (d) is a Class A misdemeanor.
(h) An offense under Subsection (d) is a felony of the third degree if it is shown on the trial of the offense that the defendant has previously been convicted under Subsection (d).
(i) Final conviction of felony barratry is a serious crime for all purposes and acts, specifically including the State Bar Rules and the Texas Rules of Disciplinary Procedure.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1989, 71st Leg., ch. 866, Sec. 2, eff. Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 723, Sec. 2, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 750, Sec. 2, eff. Sept. 1, 1997.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1252 (H.B. 148), Sec. 1, eff. September 1, 2009.
Acts 2013, 83rd Leg., R.S., Ch. 315 (H.B. 1711), Sec. 3, eff. September 1, 2013.

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 in 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.