BODA ACTIONSOn March 23, the Board of Discipli-

nary Appeals issued an opinion and.order conditionally granting the peti-tioner)s writ of mandamus. The petition-er asked the Board. to vacate two ordersof an evidentiary panel arising from. hisevidentiary panel proceeding. Ihe firstorder, an order compelling the petitionerto produce all his trust account recordsfor a period. of six years, was found bythe Board to be overbroad and an abuseof discretion. The Board denied relief onthe petitioner's request to vacate the sec-

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STATEWIDE REPRESENTATION

ond order, an order denying the petition-er s motion to strike the Commission forLawyer Discipline's amended petition.

Because this matter is a confidentialproceeding before an evidentiary panelin accordance with Texas Rule for Disci-plinary Procedure 2.16, no identifyinginformation -will be reported. A copy ofthe opinion and order is available onBODAs web site: www.txboda.org.

,J UDI{CIAL ACTIONSOn March 9, the State Commission

on Judicial Conduct issued a publicwarning to Judge Tony 'Torres, justice ofthe peace for Precinct 2, Place 2, inBrownsville, and ordered him to addi-tional education. 'The Commission con-cludes that Judge Torres failed to followthe law and failed to maintain profes-sional competence in the law, in viola-tion of Canons 2A and 3B(2) of theTexas Code of Judicial Conduct, whenhe (a) failed to provide notice to theplaintiff or hold a hearing before rulingon the defendant's attorney's untimelymotion to set aside default judgment; (b)failed to expressly grant or deny defen-dant's attorney's motion to set asidedefault judgment, but instead simply setthe case for trial "as if a. new trial hadbeen granted"; (c) failed to review thecase file prior to conducting the July 23,2007, trial in the case; (d) conducted theJuly 23, 200', trial in the case after thecourt had. lost jurisdiction over the mat-ter (e) entered a second judgment in. thecase after the default judgment in favorof the plaintiff became final; and. (f) pre-vented the plaintiff from testifying abotithe car wreck or the damage to her vehi-cle. In reaching this decision, the Com-mission has also taken into account thatJudge Iorres has received tsvo prior pub-lie sanctions, one that involved similai

mishandling of a small claims case.Pursuant to the order, Judge Torres

must obtain six hours of instruction witha nientor in addition to his requiredjudicial education. In particular, theCommission directs that Judge Torresreceive instruction in the areas of smallclaims suits and related provisions in theTexas Governminent Code and the TexasRules of Civil Procedure. Judge Torresshall complete the instruction within 60days from the date of written notifica-tion of the assignment of a mentor.Upon the completion of the instruction,Judge Torres shall sign and return theRespondent Judge Survey indicatingcompliance with the order. Failure tocomplete, or report the completion of,the required additional education in atiiely ianner may result in furtherCommission action.

On March 9, 2009, the State Con-mission on judicial Conduct issued apublic warning to Judge Gustavo Garza[#07731700], 55, justice of the peace,Precinct 6, Place I., in Los Fresnos. TheCommission concludes that Judge Garzawillfully and/or persistently fEailed to follow the law, in violation of Catron 2A ofthe Texas Code of Judicial Conduct, by(a) proceeding against students and theirparents under the same case numbereven when the parents were charged sep-arately for a different offense; (b) requir-ing parents to discharge the fine assessed.against the students in the failure toattend cases; (c) failing to inquire intothe students' or their parents ability topay a fine or to provide them with theoptions of a pay.rient plan, perfiormingcommunity service in satisfaction of afine or court costs, or waiving the fine orcosts after a determination of indigencs;(d) failing to properly docerment or issue

406 Texas Bar-Journa/!* May 2009 www.texasbar.com

a written judgment or order of probationor deferred disposition, including condi-tions for comipliance, in the students'cases; (e) failing to properly document orissue a written judgment or order assess-ing a fine, court costs, or special fee inthe students' cases; (f) failing to docu-ment or issue a written order of proba-tion or deferred disposition, includingconditions for compliance, in any casefiled against the parents; (g) failing toproperly document or issue a writtenjudgment or order assessing a fine, courtcosts, or special fee in any case filedagainst the parents; (h) requiring the stu-dents and their parents to return to courtafter the parents had discharged the finethrough paddling; (i) requiring the stu-

dents and their parents to return to courtmore than 180 days beyond the date oftheir first appearance in court and/orbeyond the end of the school year thatthe court order was entered; (j) holding astudent in contempt of court withoutproviding evidence of the violation of awritten order or judgment of the court;(k) holding a student in contempt ofcourt without affording her adequatedue process, including the right to berepresented by counsel; and (1) orderingthe confinemenit of a student, who was16 years old when charged with theoffense of failure to attend school, forcontempt of an unwritten court order.

In reaching this conclusion, -the Com-mission notes that Judge Garzas positionthat he never ordered the corporal pun-ishment of students charged with failureto attend school could not be reconciledwith his assertion that he had the legalauthority to permit corporal punishmentas a "reasonable condition" of probationunder Article 45.051 of the Texas Codeof Criminal Procedure. Further, theConmmission concludes that Judge Carzaexcccded his authority by providing par-ents aiid thc school district xxith a "safehaven' for the administratioii of corporalpumishment. While aeknowlcdgiiig thatthle Lcgislature had not prosvidcd thecourts with aiiy lcgal authority to iiiposecorporal punishment as a sanctioii under

the Texas Education Code or the TexasCode of Criminal Procedure, JudgeGarza routinely facilitated and permittedthe paddling of juveniles in his court-room thereby clothing the practice withan improper judicial blessing. This couri-sanctioned paddling, which subjectedthe students and their parents to publicembarrassmeint, huimiliation, fear, andpain, failed to maintain proper order anddecorum in the courtroon as required byCanon 3B(3) of the Texas Code of Judi-cial Conduct.

DISBARME[ NTS

On Nov 24, 2008, Gar J. Dera[#057 7 01001, 66, of Plano, was dis-barred. n evidentiary panel of -the Dis-trict 6-A Grievance Committee foundthat on Sept. 26, 2005, Derer received$277,032.18 from the complainant.Derer advised the complainant in writ-ing that he would hold the funds in anaccount reserved for "client trust fundmonies." However, Derer did not placethe funds in a client trust account. Sub-sequently, Derer withdrew legal feesfrom the funds he was holding for theconplainant without the complainantsknowledge or consent. On multipleoccasions, the complainant requested anaccounting, but Derer failed to render aprompt accounting of the funds.

Derer violated Rules 1.14(a) and (b)and 8.04(a)(3). He was ordered to pay$4,052.30 in attorney's fees and costsand $20,000 in restitution.

SUSPE NSI{ONS

On Dec. 31, 2008, Hoagie L. Karcs[#11098600], 50, of Marlin, received afive-year, partially probated suspensioneffective Oct. 7, 2008, with the firstrhee months actively seived antI thernmainder probated. An evideritiary

panel of the District 8-B CriexanceCommittee fdund that in one matter,karels f'ailed. to furnish a response to theOffice of the Chief Disciplinarx Coun-sel. In a second matter, Karels failed tocomrntnicate either the total amount of"

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his fee as a flat fee or the basis or rate ofhis fee as an hourly fee and induced theclient to convey her share in real proper-ty to him as further legal fees withoutcommunicating the dollar amount of hisfee. Karels failed to convey a plea offerfrom a prosecutor and failed to furnish aresponse to the Office of the Chief Dis-ciplinary Counsel.

Karels -violated Rules 1.02(a), 1.03(b),1.04(c), and 8.04(a)(8). He was orderedto pay $17,349.95 in attorney's fees.

On Jan. 29, Monica Ann Ca puano[#00/963021, 42, of Austin, received athree-year, partially probated suspensioneffective Jan. 23, with the first yearactively served and the remainder pro-bated. An evidentiary panel of the Dis-trict 9-A Grievance Committee foundthat in a civil matter involving -the draft-

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ing of a will, Capuano failed to draft thewill, failed to keep the client reasonablyinformed about the status of the case,failed to refind any unearned fee, andengaged in legal work while administra-tively suspended from the practice oflaw. The panel fuirther found that in abankruptcy matter, Capuano engaged inlegal work while administratively sus-pended from the practice of law.

Capuano violated Rules 1.01(b)(1),1.03(a), 1.15(d), arid 8.04(a)(8) and(a)(1II). She was ordered to pay$2,227.25 in attorney's fees and $7,200in restitution.

On Feb. 17, Frederick D. Kefy[#112186001, 49, of Ilouston, accepteda one and a half-year, fuilly probated sus-pension effective March 1. The District4-E Grievance Committee found that

Kelly failed to hold funds belonging inpart to a client separate from his ownproperty arid. failed to properly accountto the client for finds that the client wasentitled to receive.

Kelly violated Rules 1.14(a) and (b).ie agreed to pay $7835.20 in attorney'sfees and costs.

On Feb. 19, Steven D. Grossman[#085478001, 51, of Houston, accepteda two-year, fully probated suspension,effective Feb. 15. An evidenrtiary panel ofthe District 4-A Grievance Connitteefound that Grossman, in wo tniatters,neglected legal matters entrusted to himand fEailed to keep his clients reasonablyinformed about the status of their cases.Grossman also failed to timely firnish tothe Chief Disciplinary Counsel's officeresponses to his clients' grievances asrequired by the Texas Rules of Discipli-nary Procedure.

Grossman violated Rules 1.01(b)(1),1.03(a), and 8.04(a)(8). lie was orderedto pay $3,999.35 in attorney's fees andexpenses and $740.75 in restitution.

On Feb. 7, Thomas A. Wiffbern III[#21 507700j, 57, of Houston, accepteda six-month, fully probated suspensioneffective March 1. An evidentiary panelof the District 4-D Grievance Commit-tee found that, in the first imatter, Will-bern neglected the legal matter entrustedto him and frequently failed to carry outcompletely the obligations owed to theclient. In the second matter, Willbernneglected the legal matter entrusted tohim and failed to timely fui nish to theChief Disciplinary Counsel's office aresponse. In the final miatter, Willbernneglected the legal matter entrusted tohim, arid, upon termination of represen-ration, failed to surrender papers arindproperty than rue client wxas entitled toie ce ie f'adie] to refuod advance pay-ruent of fees that had riot been earned.

Willbern violated Rules 1 .01(t)(1)and (b)(2), 11I5(d), and 8.04(a)(8). li-eagreed to pay $3,31 8.95 in attorneysfees and costs and $ I,000 in restitution.

On Dec. 2, 2008, 0. Wayne Crocker[#05087500], 61, of San Antonio,received a five-year, partially probatedsuspension effective Jan. 1, with the firstthree years actively served and. theremainder probated. The District 10AGrievance Committee found that in rep-resenting a client on a homeowner'sinsurance claim, Crocker failed toexplain the basis for his fee, convertedthe client's insurance proceeds, failed tomiaintain client fuids in a trust account,failed to provide an accounting, failed todeliver finds owed to the client, andfailed to respond to the grievance. In acriminal law representation, Crockermisrepresented facts regarding the use ofclient funds, failed to account for clientfunds, and failed to respond to the griev-ance. In a third matter, Crocker failed toappear for trial arid. failed to returnunearned fees. Crocker has filed a noticeof appeal.

Crocker violated Rules 1.01(b)(1);1.03(a);1.04(c); 1.14(a), (b), and (c);1.15(d); and 8.04(a)(3) and (a)(8). Ilewas ordered to pay $11,078.92 in attor-ney's fees and expenses and $160,647.96in restitution.

On Jan. 20, Bryan .H Hutson[#007954413, 40, of Magnolia, receiveda two-year, fuilly active suspension effec-tive Jan. 15. An evidenriary panel of theDistrict 4-A Grievance Committeefound that on March 3, 2006, a clientretained H utson to represent her son in achild visitation matter. The client paid aretainer fee in the amnount of $500 tohandle the case. The client made severalattempts to check the status of the case.I --iutson failed to comply with theserequests for information and failed toperform any meaningful legal services onbehalf of the client. Hutiirsoni failed toreturn the unearned f~ees. I ursoni failedto respod to the grievaoce. Jo a secondcase, I -{urson accepned representation ofa client in a divorce case. lie was paid$1,000. After an attempted reconcilia-ton, the client instructed IHursori to

pioceed wsirh the divorce. Thereaftei,

408 Texas Bar-ournal* May 2009 www.texasbar.com

Hutson failed to provide any meaningfilllegal services on behalf of the client and.failed to return an unearned fee. Hutsonalso failed to respond to the grievance.

Hutson violated Rules 1 01 (b)(1) and(b) (2) 1.03(a), 1,15(d), and. 8.04(a)(8).He was ordered to pay $1,495 in attorneysfees and. costs and $1,500 in restitution.

On Jan. 29, John C. Lagrappe[#1 1819580] 5-4, of Houston, accepteda two-year, fully probated. suspensioneffective Nox 1. The 129th DistrictCourt of Harris County found thatI.agrappe neglected his client's case, fie-quently failed to carry out completelythe obligations owed. to his client, failedto abide by the client's decisions con-cerning the objectives and. general meth-ods of representation, and. failled to keepthe client reasonably informed about thestatus of his legal matter.

Lagrappe violated Rules 1.01(b)(1)and (b)(2), 1.02(a)(1), and 1.03(a). Heagreed to pay $843.73 in attorney's feesand. costs and. $5,700 in restitution.

On Feb. 24, Elaine Watson[#20945900], 53, of Wimberley, agreedto a two-year, partially probated suspen-sion effective Feb. 1_, with the first 30days actively served and the remainderprobated. The District 15-C GrievanceCommittee found Watson neglected alegal matter entrusted to her, failed tokeep her client reasonably informed, and.failed to provide a ffull accounting uponrequest by the client. In addition, \Wat-son failed to advise her client in writingof a prior suspension and did not timelyfirnish a grievance response to the ChiefDisciplinary Counsel's office.

Vatson violated. Rules 1_.01_(b)(1),1.03(a), 1.14(b), and. 8.04(a)(7)and.(a)(8). She was oidered to pay S750 inattoinex's fees and expenses.

On Feb. 25, Lucian o MaI onado[#1 28552501. 57, of Houston, acceptedathree-yeai, .fully piobated suspension

ef'fecrixe Maich 15. An_ exidenriary panelof the LDistrict i-A Ciievance Commit-

tee found that Maldonado neglected alegal matter entrusted to him, frequentlyfailed to carry out completely the obliga-tions owed to his client, filled to keepthe client reasonably informed about thestatus of' his legal matter, and., upon ter-mination of representation, failed torefund fees that had not been earned.Maldonado engaged in the practice oflaw when his right to practice had beenadministratively suspended.

Maldonado violated Rules 1.01 (b)(1)and (b)(2), 1.03(a), 1.15(d.), and8.04(a)(11). He agreed to pay $500 inattorney's fees and. costs.

On Dec. 12, 2008, Wedon W. Brady[#028530001, 70, of Fort \Worth,received a one and a half-year, fuilly pro-bated suspension effective Dec. 15,2008. On May 9, 2007, Brady's clientborrowed money fiom ComplainantLaw Cash in advance of the client's per-sonal injury settlement. lhe personalinjury matter later settled. On Aug. 9,2007, Brady remitted a check to LawCash written on his JO'llA trustaccount in repayment of the findsloaned to his client. 'T'hereafter, Brady'scheck was returned by the bank due toinsufficient finds.

Brady violated Rules 1.14 (a) and. (b).He was ordered to pay $1,300 in attor-ney's fees.

On Feb. 18, Lori D. Mack[#240047861, 43, of Houston, accepteda one-year, fuilly probated suspensioneffective Dec. 15, 2010. An evidentiarypanel of the District 4-A GrievanceCommittee found. that Mack failed tokeep her client reasonably informedabout the status of his legal matter and,upon termination of representation,failed to refiund an advanced paymnent offees that had not been earned.

Mack vio1lated Rules 1 .03(a) and1 .13 (d). She agreed to pay $600 in attor-ney's fees and costs and $2)05 in restitution.

On March 5, Sean E O'Neill[#152881501], 55, of San Antonio,

wwwtexasbar.com'tbj

accepted a two-year, probated. suspen-sion effective March 1. The District 12-B Grievance Committee found that inconnection with funds withheld .o payhealth care providers in personal injurycases, O'Neill failed to notify theproviders of the receipt of settlementffinds timely, failed to pay the sumswithheld to the providers timely failed.to maintain the finds in trust, and. con-mingled the withheld finds with hisown finds.

O'Neill violated Rules 1.14(a), (b),and (c). He was ordered to pay $2,000 inattorneys fees and expenses.

On March 5, Charles R. Herbec[#09500000], 69, of'lexas City; accepteda one-year, fiully probated suspensioneffective Feb. 23. The District 11-A Griev-ance Committee found Herbeck revealed.

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confidential information of" a client, neg-lected his client's representation, andcounseled a witness to testih r falsely.

I-lerbeck violated Rules 1.01(b)(2),1.05(b), and 3.04(b). i--le was ordered topay $750 in attorneys fees and expenses.

On March 5, Ben B. Boothe, Jr.[#24006871] 38, of Fort Worth, accept-ed a six-year, partially probated suspen-sion effective March 15, with the firsttwo arid a half years actively served andthe remainder probated. The 48th Dis-trict Court found that Boothe, in con-nection with his representation of eightclients, neglected the legal matters, fre-

quently failed to carry out completelythe obligations owed to the clients, failedto keep the clients informed about thestatus of their matters, failed to respondto the clients' reasonable requests for

information, and failed to respond. to thegrievances filed against him.

Boothe violated Rules 1.01(b)(1) and.(b)(2), 1.03(a), and 8.04(a)(8). le wasordered to pay $10,470 in attorneys feesand costs and $800 in restitution.

On Feb. 8, Neal Y. Pickett[#15981000], 70, of Houston, received afive-year, partially probated suspension,effective April 1I, with the first three yearsactively served and the remainder pro-bated. The District 4-B Grievance Corn-mittee found that Pickett was hired. farrepresentation in a personal injury mat-ter. During the course of the representa-tion, Pickett was suspended from thepractice of law pursuant to a disciplinaryjudgment, but continued to represent hisclient and further failed to inform hisclient of his suspension.

Pickett violated Rules 1.03(a) and8.04(a)(7). le was ordered to pay costsin the amount of $426.

REPRIIMANDS

On Jan. 16, T.W Schueller[#17823200j, 60, of Wichita Falls,received a public reprimand. An eviden-tiary panel of the District 14-A Griev-ance Committee found that Schuellermade false representations to the con>plainant during a phone call on June 14,2007, where he stated that he was co-counsel in a criminal case with thedefendant's court-appointed counsel andthat he was calling with the approval ofcourt-appointed counsel.

Schueller violated Rule 8.04(a)(3).He was ordered to pay $3,515.25 inattorney's fees and costs.

On Jan. 22, David Turner Duncan,Jr. [#062111001, 50, of Austin, receiveda public reprimand. An evidentiary panelof the District 9-A Gievance Commit-tee found that in a civil matter, Duncanfailed to send. letters as requested, failedto respond to iequests for info-rmation,failed to piovide an accounting fo)r hisfees, ad. failed to timely refundunearned .fees. Ehe committee firtber

found that in a fatrily law iatter, Dun-can failed to reduce a judgment to writ-ing and no written judgment was filedwith the court.

Durncan violated Rules 1.01(b)(1),1 .03(a), 1,14(b), 1.15(d), and 8.04(a)(I).Ile was ordered to pay $967.55 in attor-ney's fees.

On Feb. 11, Thomas B. Greene III[#083955001, 60, of Houston, accepteda public repriniand. The District 4-FGrievance Committee found thatGreene was hired .fr representation in abankruptcy tiatter. Greene thereafterfiled a petition on behalf of his client,but failed to pay the required filing fees.Greene received. notice of the oversightfroti the court, but still failed to pay. Asa result, the case was disirissed. Greenefiled a new petition, but again failed topay the filing fee arid again failed to cor-rect the oversight.-As a result of Greene'serrors, the second case was also dis-missed. Furthermore, during the courseof the representation, Greene wasadiniistratively suspended froi thepractice of law flr norn-cornipliartce withthe Minimum Continuing Legal Educa-tion requirements.

Greene violated Rules 1.01 (b)(1)8.04(a)(1.1). I--e was ordered to$587.70 in attorney's fees and. costs.

andpay

On Feb. 23, William E. Trantham[#201870001], 65, of Denton, accepted apublic reprimand. In March 2005, Tran-tiam represented the complainant in adisvorce. The divorce was finalized inNovember 2005. Thereafter, Trarthamnrepresented the complainant's ex-hus-band in a matter against the complainantinvolving a niodification of the priordivorce decree. The ex-liusbattd's interestsin the matter were materially and. directlyadverse to the interests of the com-plainant, Trantham's former client. Thecomplainant did not consemtt to the repre-seritation or waive the conflict of interest.

Trantiam violated Rules 1.09(a)(2)and. (a)(3). He was ordered to pay$2,492.50 in attorney's fees. sG

410 -Texas Bar ournal , May t2009ww.texasbar.com