Evans v. State Bar

768 S.W.2d 326, 1989 Tex. App. LEXIS 336, 1989 WL 13794
CourtCourt of Appeals of Texas
DecidedFebruary 22, 1989
DocketNo. 08-88-00178-CV
StatusPublished
Cited by3 cases

This text of 768 S.W.2d 326 (Evans v. State Bar) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evans v. State Bar, 768 S.W.2d 326, 1989 Tex. App. LEXIS 336, 1989 WL 13794 (Tex. Ct. App. 1989).

Opinions

OPINION

WOODARD, Justice.

This is an appeal from a judgment of disbarment. The judgment was entered on April 4, 1988, and was based upon a jury’s finding that the Appellant violated the Code of Professional Responsibility. We reverse.

Evidence portrayed the following events. Fred Newman and Bill Humphris signed a letter of intent to jointly own a commercial water disposal well in Reeves County, Texas. It would firstly operate as a corporate entity under the name of Fred M. Newman, Inc. Upon payout from corporate income of initial and operating costs, the corporation was then to assign Humphris fifty percent of well and equipment. Humphris was to operate the well on a day to day basis.

Pursuant to that agreement, Fred M. Newman, Inc., entered into a surface lease of the proposed property with Robert and Mary Snodgrass. The lease provided for successive three year terms.

In 1981 and 1982, Fred Newman assigned varying percentages of Fred M. Newman, Inc.’s interest in the Snodgrass lease to various people and entities, including his father and children.

In June of 1983, Appellant suggested to Fred Newman that he create a new family corporation to be used as a holding company for Fred M. Newman and Fred M. Newman, Inc.’s assets. This corporation was named Freebird Oil Corporation, Inc., and the remainder of the interest in the Snod-grass lease was transferred to it.

Thereafter, in June of 1984, Humphris brought suit against Fred M. Newman, Fred M. Newman, Inc., and Freebird Oil for division of partnership assets and accounting. Appellant appeared on behalf of the defendants and also filed an intervention suit on behalf of Fred Newman’s children and father. The accounting was resolved. Appellant told Fred Newman that if the judge ruled the enterprise to be a joint venture, it would be more difficult to dissolve. Newman was desirous of its continuation. Appellant further told Newman that Humphris had testified in trial that the Snodgrass lease had expired. Newman testified that Appellant told him that if the judge ruled the enterprise a joint venture or partnership, (he could not remember which one), the Snodgrass lease would be available for leasing with any new party. Appellant further explained that a fiduciary relationship existed between members of the enterprise, and if one leased it for himself, he leased it for the benefit of all while the enterprise existed. He further stated Humphris had testified he was in the process of seeking a new lease. Appellant stated it was possible that Exxon could lease the well. Under a sense of urgency, Fred Newman suggested that he negotiate a new lease pending the court’s ruling on the entity nature of the enterprise. Appellant dissuaded him because of a possible appearance of a violation of a fiduciary relationship to the others in the enterprise.

On April 30, 1985, the case of Humphris v. Newman, et al. was tried, and in July of [328]*328that year, Appellant was notified by letter that the trial judge intended to hold the enterprise to be a joint venture. Thereafter, without the knowledge of the New-mans, Appellant made inquiry of Mr. Snod-grass as to the possibility of his leasing the property. He stated he no longer represented Fred Newman. On August 12, 1985, Appellant informed Fred Newman that he had received a proposed lease from Snodgrass. Under the impression that Appellant was acting as the representative of himself, his children and Freebird Oil, Fred Newman instructed the Appellant to take the lease on the terms offered and pay a $5,000.00 bonus to Snodgrass. On August 16, 1985, two days after rendition of judgment declaring the enterprise to be a joint venture, Appellant entered into a new lease with the Snodgrasses under the name of Robert L. Evans, Jr., P.C.

On August 23, 1985, Appellant filed suit against Humphris on behalf of Snodgrass. Among other things, he sought to enjoin Humphris from going on the property and interfering with operations of the new lessee (himself). On the same day, Humphris brought suit against the Appellant individually, and also sought a temporary injunction. Appellant answered this lawsuit with a claim of ownership of the Snodgrass leasehold interest and the equipment thereunder. At the hearing for Humphris’ request for temporary injunction against the Appellant, Fred Newman discovered the Appellant was claiming the leasehold interests for himself. On September 4, 1985, Newman verbally discharged the Appellant. A new trial had been granted in the case of Humphris v, Newman, et al. On October 21, 1985, Appellant filed a third amended answer in that case on behalf of Fred M. Newman, Inc., and Freebird Oil Co., Inc. On October 24,1985, in the Snodgrass v. Humphris case, a first amended cross petition was filed on behalf of Robert L. Evans, Jr., P.C., and Robert and Mary Snodgrass against Freebird Oil Company, Inc., the Newmans, Fred M. Newman, Inc., and the other original assignees of Fred Newman to the leasehold interest. The cross petition was filed by attorney, Ray P. Moudy. It sought a declaratory judgment to decree ownership of the Snodgrass lease interest to the Appellant. In January of 1986, Appellant moved to withdraw as attorney of record in the Humphris v. Newman, et al. case. The Appellant testified to the contrary in many instances, but was disbelieved by the jury.

Disciplinary proceedings were brought against the Appellant. Trial was held, and the Appellant was found to have violated seventeen counts of professional misconduct under State Bar Rules.

Point of Error No. One predicates error in the voir dire examination of the jury panel. Counsel for the Appellee stated “[s]o in this case, the District 16-B Grievance Committee has determined and found acts of professional misconduct — .” These were in the opening remarks to the jury panel, and the words were preceded by the following:

The Plaintiff in this action is the District 16-B Grievance Committee by the State Bar of Texas. Now, we have talked about the fact that the Supreme Court has promulgated rules for a lawyer’s conduct by which lawyers’ conduct is governed. Now, the State Bar of Texas is considered to be the administrative aura of the Supreme Court of Texas, and it is responsible for the enforcement of rules.
And, in particular, the grievance committee, the local grievance committee of the State Bar of Texas, are responsible for the investigation of complaints of attorney misconduct. They are to give notice to the accused attorney. They are to investigate whether they believe that acts of professional misconduct have occurred. If they believe that acts of professional misconduct have occurred, then they are to authorize the filing of a disciplinary lawsuit.
Now, in Texas, no lawyer can be disciplined except by his consent, except by a trial before a district court. So in this case, the District 16-B Grievance Committee has determined and found acts of professional misconduct—
[329]*329Counsel for the Defendant objected to the Petitioner telling the jury what the grievance committee had found and moved for a mistrial. The motion was taken under advisement, and, subsequently, the Appellee explained to the jury:
The issues of fact will be ultimately decided by this jury, and the law will be submitted to you by the Court. And your principal function in this case, ...

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Related

Texas Capital Securities, Inc. v. Sandefer
58 S.W.3d 760 (Court of Appeals of Texas, 2001)
State Bar of Texas v. Evans
774 S.W.2d 656 (Texas Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
768 S.W.2d 326, 1989 Tex. App. LEXIS 336, 1989 WL 13794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-state-bar-texapp-1989.