Favaloro v. Commission for Lawyer Discipline

994 S.W.2d 815, 1999 Tex. App. LEXIS 3954, 1999 WL 330353
CourtCourt of Appeals of Texas
DecidedMay 26, 1999
DocketNo. 05-96-01778-CV
StatusPublished
Cited by27 cases

This text of 994 S.W.2d 815 (Favaloro v. Commission for Lawyer Discipline) 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
Favaloro v. Commission for Lawyer Discipline, 994 S.W.2d 815, 1999 Tex. App. LEXIS 3954, 1999 WL 330353 (Tex. Ct. App. 1999).

Opinion

OPINION

CAROLYN WRIGHT, Justice.

Richard Favaloro appeals a public reprimand and probated suspension from the practice of law received in a disciplinary proceeding brought by the Commission for Lawyer Discipline in district court. Fava-loro brings eighty points of error contending his reprimand and suspension were entered in violation of his rights under various constitutions, statutes, and rules. His myriad points of error have been consolidated and addressed according to similarities in law.1 We overrule Favaloro’s points of error and affirm the trial court’s judgment. We publish this opinion pursuant to the mandate of Texas Rule of Disciplinary Procedure 6.06. See Tex.R. DISCIPLINARY P. 6.06, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A-l (Vernon 1998).

FACTUAL BACKGROUND

Favaloro, an attorney, represented one of the parties in a protracted lawsuit. During the litigation, he filed a grievance with the State Bar of Texas against opposing counsel in the case. The grievance committee informed Favaloro of the confidential nature of grievance proceedings. This grievance was subsequently dismissed by the grievance committee in May 1992. Also, during the litigation, Favaloro filed a petition for writ of mandamus in the Texas Supreme Court, unrelated to the grievance, and opposing counsel filed a response. After the supreme court denied Favaloro’s request for mandamus relief, Favaloro filed a motion for reconsideration,' on July 6,1992, in the form of a letter addressed to the clerk of the supreme court, stating in relevant part:

Because the Court overruled Relators’ application for writ of mandamus, Rela-tors suspect that the Court did consider [opposing counsel’s] response. If the Court considered [opposing counsel’s] response, Relators request a reconsideration of the Court’s ruling because [opposing counsel’s] response contains many of the same knowingly dishonest statements, including those that maliciously and falsely defame me personal[819]*819ly, that forced the State Bar of Texas to prosecute [opposing counsel] for her dishonesty and abuse of our legal system in File Number ..., State Bar of Texas v. [opposing counsel].

(Underlining in original; italicization added.) The letter was signed by Richard Favaloro.

After Favaloro sent the above letter, Favaloro’s opposing counsel filed a grievance action against him for violating then-disciplinary rule of professional conduct 8.04(a)(ll),2 regarding the confidentiality requirements of disciplinary proceedings. See Tex. DisciplinaRY R. Prof’l Conduct 8.04(a)(12), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (providing that a lawyer shall not violate any other laws relating to professional conduct and the practice of law); Tex.R. Disciplinary P. 2.15 (providing for the confidentiality of proceedings before a grievance committee).

After the conclusion of administrative proceedings against Favaloro, the Commission for Lawyer Discipline filed a disciplinary petition in district court, and the supreme court appointed the Honorable Bruce Auld to preside over the proceedings. Before trial, the supreme court substituted its initial appointment of Judge Auld with the subsequent appointment of the Honorable John Delaney, who presided over the jury trial.

During the jury’s deliberations, the jury requested clarification of the rales governing the confidentiality of grievance proceedings. At the time of the grievance proceeding, the rule provided: “[ajfter a grievance committee and a respondent have reached agreement for a sanction other than a private reprimand, ... the disposition is public.” However, the judge instructed the jury: “[ajfter a grievance committee and a respondent have reached agreement for a sanction other than a public reprimand, ... the disposition is public.” Following this inconsistent in-straction, the jury returned a verdict in Favaloro’s favor on all issues including the questions concerning his violation of the confidentiality requirement.

The Commission filed a motion for judgment notwithstanding the verdict (JNOV), arguing it proved Favaloro’s violation of the confidentiality requirement as a matter of law. The judge agreed and announced the Commission’s motion for JNOV would be granted. Before Judge Delaney signed an order granting the Commission’s motion for JNOV, Favaloro filed a motion to recuse him. The motion was granted. The supreme court then appointed the Honorable Donald Jones to replace Judge Delaney. Judge Jones entered JNOV as previously announced by Judge Delaney and signed a judgment publicly reprimanding Favaloro, suspending Favaloro from the practice of law for three years, probating the suspension for three years, and ordering Favaloro to pay the Commission $8,712.50 in attorney’s fees.

FINALITY OF THE TRIAL COURT’S JUDGMENT

In points of error seventy-six and seventy-seven (f), (g), and (h), Favaloro contends the trial court’s judgment is not final because the trial court did not resolve Favaloro’s defenses, counterclaims, and sanctions against the Commission. In North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966), the supreme court held a judgment rendered in a case regularly set for trial on the merits is presumed final absent an order for separate trial or a reservation of claims for later disposition. See Aldridge, 400 S.W.2d at 897-98; Smith v. Grace, 919 S.W.2d 673, 675 (Tex.App.-Dallas 1996, writ denied), cert. denied, 519 U.S. 1118, 117 S.Ct. 964, 136 L.Ed.2d 849 (1997). This case was regularly set for trial on the merits and does not order a separate trial or reserve claims for later disposition. Therefore, we presume the judgment is final for purposes of appeal. We overrule [820]*820Pavaloro’s points of error seventy-six and seventy-seven (f), (g), and (h).

THE COMMISSION’S PLEADINGS

In points of error one through seven, forty-three, fifty-two through fifty-nine, sixty-one through sixty-three, seventy-four, and seventy-five, Favaloro contends the Commission’s petition was deficient and did not vest the trial court with jurisdiction because the petition did not allege compliance with the requirements of disciplinary rules 2.01 through 2.15. See Tex.R. DisciplinaRY P. 2.01-.15. Rule 3.01 lists the required elements for the Commission’s disciplinary petition, and it does not require the Commission to plead compliance with rules 2.01 through 2.15. See id. 3.01.

Favaloro argues the petition did not vest the trial court with jurisdiction because the original disciplinary petition did not assert the “Professional Misconduct” for which he was reprimanded. The amended disciplinary petitions did assert Favaloro’s violation of the confidentiality requirement. Favaloro, however, argues the Commission cannot amend its pleading to allege different acts of professional misconduct. The rules of disciplinary procedure incorporate the Texas Rules of Civil Procedure. See id. 3.08(B). Texas Rule of Civil Procedure 62 provides that an amended petition may add additional claims. See Tex.R. Civ. P. 62. Therefore, Favaloro’s argument lacks merit.

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Cite This Page — Counsel Stack

Bluebook (online)
994 S.W.2d 815, 1999 Tex. App. LEXIS 3954, 1999 WL 330353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/favaloro-v-commission-for-lawyer-discipline-texapp-1999.