Crystal Henderson v. Commission for Lawyer Discipline

• Court: Court of Appeals of Texas
• Decided: December 28, 2023
• Docket: 01-22-00602-CV
• Status: Published

Opinion

Opinion issued December 28, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00602-CV ——————————— CRYSTAL HENDERSON, Appellant V. COMMISSION FOR LAWYER DISCIPLINE, Appellee

On Appeal from the 190th District Court Harris County, Texas Trial Court Case No. 2019-55008

MEMORANDUM OPINION

Appellant Crystal Danielle Henderson appeals the judgment of active

suspension entered in favor of appellee the Commission for Lawyer Discipline. In

two issues, Henderson contends that (1) the trial court erred in not allowing two of

her witnesses to testify remotely via Zoom, and (2) her trial counsel provided ineffective assistance of counsel during the underlying disciplinary proceeding. We

affirm.

Background

Henderson is an attorney licensed to practice in Texas. The Commission for

Lawyer Discipline (the Commission), a standing committee of the State Bar of

Texas, is an administrative agency of the Texas Judicial Department. See TEX.

GOV’T CODE §§ 81.011(a), 81.076(b).

On August 9, 2019, the Commission filed its original disciplinary petition and

request for disclosure alleging that Henderson committed professional misconduct

by failing to properly account for, misappropriating, and/or stealing $25,800.00 in

funds transferred to her by her client, Fritz Zephir. The Commission alleged that

Henderson’s acts and omissions constituted violations of Texas Disciplinary Rules

of Professional Conduct (TDRPC) 1.14(a), (b), 1.15(d), and 8.04(a)(2), (3).

Henderson answered asserting general and specific denials and affirmative

defenses. She later filed her responses to the Commission’s request for disclosure,

identifying the following witnesses: Fritz Zephir, Tanae Bolton, JD Euroway

Distribution USA LLC, Timothy Baldwin, and Allen Morris. The Commission

amended its petition alleging facts which it asserted constituted additional violations

of TDRPC 1.01(b)(1), 1.03(a), 1.04(a), 1.14(c), 4.01(a), and 8.04(b).

2 The trial court held a bench trial in the disciplinary action. On February 21,

2020, the trial court entered a judgment of suspension finding that Henderson had

committed professional misconduct in violation of TDRPC 1.04(c), 1.14(a)-(c),

8.04(a)(2), (3), and 8.04(b) and imposing a three-year active suspension from the

practice of law.

On April 14, 2020, the trial court granted Henderson’s amended motion for

new trial, vacated its February 21, 2020 judgment of suspension, and set a new trial

date of July 28, 2020. The trial court later entered an amended docket control order

resetting the trial date to November 17, 2020.

On October 30, 2020, Henderson filed a motion in limine seeking, among

other things, to exclude “any remote witness testimony . . . unless specifically

permitted by an Order of this Court.”

On July 21, 2022, the trial court conducted a hearing on Henderson’s motion

to allow two witnesses, Allen Morris and Lorissa Lubimiv, to appear at trial remotely

via Zoom. As to Lubimiv, the Commission objected to allowing Lubimiv to testify

because Henderson did not disclose that she intended to call Lubimiv until six days

before trial. As to both Allen and Lubimiv, the Commission objected to allowing

them to testify remotely on the grounds that Henderson sought in her motion in

limine to exclude any remote witness testimony and the Commission had incurred

considerable expense in arranging for its own witnesses to appear in person at trial.

3 After advising counsel that it no longer allowed witnesses to testify via Zoom, the

trial court sustained the Commission’s objections and denied Henderson’s motion.

On July 24, 2022, Henderson filed a second motion for continuance of the

trial setting due to the unavailability of witnesses to testify in person. She asserted

that she “did not anticipate the Court not permitting remote testimony” because the

Texas Supreme Court’s 52nd Emergency Order Regarding the COVID-19 State of

Disaster (Emergency Order) “specifically permits a court to make reasonable efforts

to allow witnesses or parties to participate in hearings of any kind remotely.”

The trial court held a jury trial on July 26 and 27, 2022. Prior to the start of

testimony, Henderson sought a ruling on her second motion for continuance. The

trial court denied the motion.

At the conclusion of trial, the jury returned its verdict finding that Henderson

engaged in professional misconduct with respect to her client by:

(1) Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in her dealings with Fritz, in violation of TDRPC 8.04(a)(3);

(2) Failing to keep Fritz reasonably informed about the status of the matter in which she was representing him and failing to promptly comply with his reasonable requests for information, in violation of TDRPC 1.03(a);

(3) Failing to hold funds belonging in whole or in part to Fritz, his company, or other third person(s), in connection with the representation, in a “trust” or “escrow” account, and failing to promptly deliver to Fritz, his company, or other third person(s) funds or other

4 property, which such person(s) were entitled to receive, in violation of TDRPC 1.14(a);

(4) Failing to disburse the funds referenced in (3) above only to those persons entitled to receive them by virtue of the representation, in violation of TDRPC 1.14(b);

(5) Upon termination of the representation, failing to take steps to the extent reasonably practicable to protect Fritz’s or his company’s interests, such as refunding any advance payments of fees that had not been earned, in violation of TDRPC 1.15(d);

(6) In representing Fritz, neglecting a legal matter entrusted to her, in violation of TDRPC 1.01(b)(1); and

(7) In the course of representing Fritz, committing a serious crime or committing another criminal act that reflected adversely on her honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of TDRPC 8.04(a)(2).

After holding a separate bench hearing to determine appropriate sanctions, the

trial court imposed a five-year active suspension and ordered that Henderson pay

restitution to Zephir in the amount of $25,800.00 as a condition of reinstatement and

$14,700.00 in attorney’s fees and costs to the State Bar of Texas. The trial court

signed its judgment of active suspension on August 1, 2022.

Henderson filed an amended motion for new trial which was overruled by

operation of law. This appeal followed.

Briefing Waiver

As a preliminary matter, we note that Henderson’s brief does not comply with

our appellate rules for briefing in several respects. See TEX. R. APP. P. 38. These

5 rules require an appellant, among other things, to cite and apply law that is applicable

to the complaint being made along with appropriate record references. TEX. R. APP.

P. 38.1(i). We are not responsible for searching the record for facts that may be

favorable to a party’s position, see Fredonia State Bank v. Gen. Am. Life Ins. Co.,

881 S.W.2d 279, 283–84 (Tex. 1994), or doing the legal research that might support

a party’s contentions, see Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d

893, 895 (Tex. App.—Dallas 2010, no pet.).

Although Henderson’s brief includes a recitation of the facts she believes are

relevant on appeal, it includes no record references and cites only generally to the

Emergency Order and to Strickland v. Washington, 466 U.S. 668 (1984), with no

explanation of how those authorities support her arguments. See Borisov v. Keels,

No. 01-15-00522-CV, 2016 WL 3022603, at *2 (Tex. App.—Houston [1st Dist.]

May 26, 2016, pet. denied) (mem. op.) (concluding appellant waived issues on

appeal where brief did not include citations to either clerk’s record or any legal

authorities); Collins v. Walker, 341 S.W.3d 570, 575 (Tex. App.—Houston [14th

Dist.] 2011, no pet.) (“Failure to cite legal authority results in waiver of the

complaint.”); In re Estate of Taylor, 305 S.W.3d 829, 836 (Tex. App.—Texarkana

2010, no pet.) (stating failure to cite legal authority or to provide substantive analysis

6 of legal issues presented results in waiver of complaint).1 Henderson asserts in

conclusory fashion that the trial was held “under the aegis of the 52nd Emergency

Order Regarding the COVID-19 State of Disaster which gave the Trial Court greater

latitude in allowing remote ZOOM Testimony” and that “counsel’s failure to comply

with the simple request to disclose a witness[’s] identity and testimony for 3 Years,

clearly violated the requirements as set forth in Strickland v. Washington, 466 U.S.

688 (1984),” but she provides no substantive legal analysis to support her assertions.

For an appellate court to be able to address an issue, the appealing party must argue

the issue’s substance with legal and record support. St. John Missionary Baptist

Church v. Flakes, 595 S.W.3d 211, 214 (Tex. 2020).

However, even absent waiver, Henderson’s arguments are unavailing for the

reasons discussed below.

Witness Testimony

In her first issue, Henderson contends that the trial court erred by not allowing

two of her witnesses, Morris and Lubimiv, to testify remotely via Zoom pursuant to

the Emergency Order. She argues that the trial court’s ruling resulted in her

1 Henderson’s brief further fails to comply with Rule of Appellate Procedure 38.1 because it does not include a statement of the case or an appendix containing a copy of the trial court’s judgment from which relief is sought. See TEX. R. APP. P. 38.1(d), (k). 7 witnesses not being available to testify at trial which denied her a fair trial in

violation of the Sixth Amendment.

The Emergency Order upon which Henderson relies provides, in relevant part,

as follows:

Subject to constitutional limitations and review for abuse of discretion, all courts in Texas may in any case, civil or criminal, without a participant’s consent:

a. except as this Order provides otherwise, allow or require anyone involved in any hearing, deposition, or other proceeding of any kind— including but not limited to a party, attorney, witness, court reporter, grand juror, or petit juror—to participate remotely, such as by teleconferencing, videoconferencing, or other means[.]

While the Emergency Order grants trial courts the discretion to allow a witness to

participate remotely, it says nothing about a trial court’s discretion to deny a request

to allow a witness to testify remotely. The Emergency Order does not support

Henderson’s argument that the trial court abused its discretion by denying her

request to allow Morris and Lubimiv to testify remotely via Zoom.

Henderson’s argument that the trial court’s ruling denying her request to allow

the witnesses to testify remotely deprived her of a fair trial in violation of the Sixth

Amendment is equally unavailing.2 The Sixth Amendment applies to criminal

2 The Sixth Amendment states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall 8 prosecutions, see U.S. CONST., amend. VI, and disciplinary proceedings are civil in

nature. See State Bar of Tex. v. Evans, 774 S.W.2d 656, 657 n.1 (Tex. 1989) (“Clear

Texas authority is that disciplinary proceedings are civil in nature.”) (citations

omitted); Crampton v. Comm’n for Law. Discipline, No. 01-20-00249-CV, 2022 WL

961557, at *12 (Tex. App.—Houston [1st Dist.] Mar. 31, 2022, no pet.) (mem. op.).

(“Texas courts have repeatedly held . . . that attorney discipline proceedings in Texas

are civil in nature.”).

We overrule Henderson’s first issue.

Ineffective Assistance of Counsel Claim

In her second issue, Henderson contends that she was denied effective

assistance of counsel in the underlying disciplinary proceeding when her trial

counsel failed to identify Lubimiv as a witness in response to the Commission’s

requests for disclosure. Henderson asserts that Lubimiv’s testimony was crucial to

her case and the jury was deprived of this evidence due to her trial counsel’s failure

to identify Lubimiv in discovery.

have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

U.S. CONST. amend. VI.

9 As previously noted, disciplinary proceedings are civil in nature. See Evans,

774 S.W.2d at 657 n.1; Crampton, 2022 WL 961557, at *12. It is well established

that the doctrine of ineffective assistance of counsel does not extend to most civil

cases. Harris v. Nationstar Mortg., No. 01-20-00038-CV, 2021 WL 1031538, at *2

(Tex. App.—Houston [1st Dist.] Mar. 18, 2021, no pet.) (mem. op.) (citing Blair v.

McClinton, No. 01-11-00701-CV, 2013 WL 3354649, at *3 (Tex. App.—Houston

[1st Dist.] July 2, 2013, pet. denied) (mem. op.)). The right has been extended to

certain civil proceedings, such as parental termination cases, see In re M.S., 115

S.W.3d 534, 544–45 (Tex. 2003), and involuntary civil commitment proceedings,

see In re Protection of H.W., 85 S.W.3d 348, 355–56 (Tex. App.—Tyler 2002, no

pet.). However, Henderson has not cited, nor have we found, any cases indicating

that a party has the constitutional right to effective assistance of counsel in

disciplinary proceedings. Further, we note that courts in other jurisdictions have

concluded that respondents in disciplinary proceedings have no right to counsel and,

therefore, no right to effective assistance of counsel. See, e,g., Matter of Gannett,

182 N.E.3d 956, 960 (Mass. 2022) (noting that Massachusetts Supreme Judicial

Court had not recognized either right to counsel or ineffective assistance of counsel

claim in State Bar discipline proceedings); Goeldner v. Miss. Bar, 891 So.2d 130,

134 (Miss. 2004) (concluding respondent had no right to effective assistance of

counsel under Sixth Amendment); Walker v. State Bar, 783 P.2d 184, 189 (Cal.

10 1989) (en banc) (concluding petitioner’s contention that he was impermissibly

denied effective assistance of counsel in disciplinary action was without merit

because there is no constitutional right, under either United States or State

Constitution, to assistance of counsel in State Bar proceedings); In re Slattery, 767

A.2d 203, 212 n.10 (D.C. 2001) (noting court could find no case in which effective

assistance of counsel was held to be due process requirement in bar disciplinary

proceedings such that counsel’s deficient performance, if sufficiently prejudicial,

could require new proceeding).

Further, even if such a right existed, Henderson has failed to satisfy the

standard set forth in Strickland. To establish an ineffective assistance claim,

Henderson must show, by a preponderance of the evidence, that (1) her counsel’s

performance was deficient and (2) there is a reasonable probability that the result of

the proceeding would have been different but for her counsel’s deficient

performance. See Strickland, 466 U.S. at 687; Ex parte White, 160 S.W.3d 46, 51

(Tex. Crim. App. 2004). An appellant’s failure to satisfy either prong defeats an

ineffective assistance claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.

App. 2009).

Here, the record reflects that Henderson was represented by at least four

attorneys at different times during the underlying disciplinary proceedings.

Henderson does not identify which of her trial counsel she alleges knew of

11 Lubimiv’s existence and therefore may have had a duty to disclose her as a potential

witness. Henderson also does not point to anything in the record that either shows

she informed her trial counsel that Lubimiv should be designated as a witness with

information relevant to the underlying disciplinary proceeding, or supports her

contention that Lubimiv’s testimony was crucial because it would have rebutted

Zephir’s testimony and supported Henderson’s testimony. Having failed to show

that her trial counsel’s performance was deficient, she has not satisfied the first prong

from Strickland. See 466 U.S. at 687; Ex parte White, 160 S.W.3d at 51. Moreover,

even if she had, she does not address Strickland’s second prong, i.e., but for her trial

counsel’s alleged deficient performance, the outcome of the trial would have been

different. See Williams, 301 S.W.3d at 687 (stating appellant’s failure to satisfy

either prong defeats ineffective assistance claim).

We overrule Henderson’s second issue.

Conclusion

We affirm the trial court’s judgment.

Amparo Monique Guerra Justice

Panel consists of Justices Kelly, Hightower, and Guerra.