CAUSE NO. 2013-56866

COMMISSIONER FOR IN THE DISTRICT COURT OF LAWYER DISCIPLINE, Commission, v. HARRIS COUNTY, TEXAS BOB BENNETT a/k/a ROBERT S. BENNETT, Defendant. 334th JUDICIAL DISTRICT

DEFENDANT'S MOTION FOR NEW TRIAL

Defendant Robert S. Bennett (Bennett), individually (hereinafter Defendant)

and files this Motion for New Trial, pursuant to Rules 324 and 329b of the Texas Rules

of Civil Procedure. The fee required for filing this motion for new trial is being tendered

along with the motion by separate letter. In support of its motion, Defendant shows this

Court as follows.

INTRODUCTION

On February 5, 2014, The Commission for Lawyer Discipline (Commission), a

Committee of the State Bar of Texas filed its amended first disciplinary petition against

attorney Robert S. Bennett (Defendant). Commissions Amended Petition alleges that

Defendant engaged in conduct in violation of Rules 1.15(d) and 3.02 of the Texas

Disciplinary Rules of Professional Conduct. A bench trial was conducted where

Defendant was the only party that introduced any testimonial evidence. At the end of this

trial, this Court, on March 21, 2014, entered a final judgment that Defendant violated two

4/22/2014 4:26:19 PMChris Daniel - District Clerk Harris County

Envelope No. 1058671By: Deandra Mosley

disciplinary rules and should be disbarred from the practice of law. A new trial should be

granted because the evidence is factually and legally insufficient to support the trial

courts judgment and the trial court abused its discretion in finding disbarment was an

appropriate sanction. No rule was violated, and that aside, no evidence supports such a

severe sanction.

This court found that Defendant should be disbarred solely on the fact that

Defendant pursued an appeal from an arbitration award granted against him in a dispute

between himself and a former client. This court somehow found it unfair that that the

former client did not get his money right away but rather Defendant (as is his right to do

so) took an appeal from the award. Defendant did not engage in any sanctionable conduct

nor did he violate any rule.

It was the Commissions burden to prove its case by a preponderance of the

evidence. It failed this burden completely. During the trial, the Commission did not put

on a single factual or expert witness to support its case against Defendant, nor did the

Commission put forth any evidence to support disbarment. To the contrary, Defendant

put on several factual and expert witnesses and has copious amounts of evidence to

support his position that disbarment was completely unjustified. Moreover, the

Commission did not even seek a sanction of disbarment in this case (the Commission

actually asked for a probated sentence)this court improperly found disbarment on its

own. The court stated that it had never previously tried a disbarment case.

In sum, no rule was violated in this case and the Court of Appeals itself held that

the appeal was not frivolous but reasonable. This court failed to appropriately weigh and

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consider the factors under Texas Rules of Disciplinary Procedure Rule 3.10 and abused

its discretion by failing to consider any lesser sanctions (not that any were warranted)

when finding that disbarment was an appropriate sanction. A true and correct copy of

the Courts final judgment is attached hereto as Exhibit A.

Defendant is also filing a motion for judgment notwithstanding the verdict

(JNOV). By filing this motion for new trial, Defendant is in no way waiving any of the

points previously made in other motions or withdraws any other motion. By pleading

that there is factually insufficient evidence in support of the jury findings identified

herein, Defendant does not waive their arguments that there is no evidence in support of

such findings. By pleading in this motion that the jurys findings on certain matters were

contrary to the overwhelming weight and preponderance of the evidence, Defendant does

not waive his arguments that such findings were not established as a matter of law.

MOTION FOR NEW TRIAL

I. The evidence is factually and legally insufficient to support all of the trial courts findings in its final judgment.

A. The courts finding No. 2 should be set aside, and a new trial granted, for the following reasons: 1. The evidence is factually and legally insufficient to support the courts

finding in No. 2. There is insufficient evidence to support a finding that Defendant committed professional misconduct as defined by Rule 1.06V of the Texas Rules of Disciplinary Procedure or that Defendant violated one or more of these Rules; Article X, Section 8, of the State Bar of Texas.

2. The overwhelming weight of the evidence shows otherwisethat no rule

was ever violated. (See Exh. B, letters in support of motion, including letter of Lillian Hardwickan expert witness at trial and Anthony Griffina lawyer who testified at the grievance hearing; and Peyman

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Momeni and legal experts Judge Dan Naranjo and Don Karotkin)1 All of these same individuals testified at the trial and explained that no rule was violated and Defendant never engaged in any professional misconduct or unethical behavior.

3. The courts findings in No. 2 are contrary to the overwhelming weight of

the evidence.

1 Attached to this motion are 23 letters in support of the Motion. The Defendant recognizes that they are not being submitted for evidentiary purposes but for altering the Court to the Testimony that was presented in the absence of the Transcript which is in preparation. The Court is aware that the following individuals whose letters are attached testified that there were no Rule violations and no basis for disbarment. They are as follows:

a. Attorney Lillian Hardwick ethics expert and co-author of Handbook of Texas Lawyer

and Judicial Ethics: Judicial Ethics Standards Recusal and Disqualification of Judges (2014)

b. Judge Dan Naranjo ethics expert and former United States Magistrate, former President of the San Antonio Bar Association, and member of Executive Committee of the State Bar of Texas

c. Attorney Don Karotkin ethics expert and Board Certified in Personal Injury. d. Attorney Anthony Griffin ethics expert and client of Defendant e. Attorney Peyman Momeni former client of Defendant f. Attorney Jeff Wagnon Former client of Defendant and lead counsel for trial g. Attorney Jorge lopez testified for Defendant and affidavit is attached h. Attorney Rachaelle Reynolds attended and observed the trial i. German Law Student Hannes Jamssen attended and observed the trial j. Armenian Law Student Gayane Abraham Abrahamyan attended and observed the trial k. Anthony Graves former client of Defendant and exoneree who was on death row for 16

years. The following letters are from attorneys and others who have addressed the points of consideration under Rule 3.02:

a-1 Attorney Richard Schechter - Local Grievance Committee Chairman, Chairman of Houston Community College

b-2 Attorney Stephen Estes Houston attorney c-3 Attorney Charles Houssiere - Houston attorney d-4 Attorney David Lee Houston attorney e-5 Attorney Kirk Kennedy Houston/Dallas attorney f-6 Attorney Barbara Radnosky Houston attorney g-7 Mike Willborn Rule 3.10 evidence letter h-8 John Dossey Rule 3.10 evidence letter i-9 Tommy Thompson Rule 3.10 evidence letter (to be substituted later). j-10 Counselor David Lockett Rule 3.10 letter k-11 Vince McCauley Rule 3.10 letter l-12 Gary Cunningham Rule 3.10 letter m-13 Ali Candir Executive Director of the Institute of Interfaith Dialogue

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B. The courts finding No. 3 should be set aside, and a new trial granted, for the following reasons:

1. The evidence is factually and legally insufficient to support the courts

finding that Defendant violated Texas Disciplinary Rule of Professional Conduct 1.15(d) and 3.02. The overwhelming weight of the evidence shows the complete oppositethat no rule was violated. In addition, these rules do not apply to the circumstances in which this court seeks to apply them.

2. These findings are contrary to the overwhelming weight of the evidence.

C. The courts finding No. 4 should be set aside, and a new trial granted, for the

following reasons: 1. The evidence is factually and legally insufficient to support this finding.

2. The court erred in denying all of Defendants affirmative defenses. The

court has no grounds for doing so.

3. The court erred in denying the Defendants expert testimony regarding the rule violations. The Court has no grounds for disallowing this testimony

D. The courts disbarment sanction should be set aside, and a new trial granted,

for the following reasons: 1. This courts finding is supported by legally and factually insufficient

evidence. 2. This court failed to consider the factors in Rule 3.10 as applied to the

evidence admitted at trial. The Commission failed to call a single expert or factual witness to support its allegations against Defendant. The Commission did not even call Defendants former or current clients or the Complainant to testify against Defendant. The only Commission evidence admitted at this trial were the pleadings of the underlying arbitration which the court of appeals found was not a frivolous appeal and did not warrant any sanction.

3. This court erred in failing to properly weigh or consider lesser sanctions, as

required and as requested by the Commissioner itself.

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4. The trial court abused its discretion in imposing a sanction of disbarment.

Arguments in support of Motion for New Trial

Without waiving any of the points made above, Defendant provides this further

explanation for some points already made, in addition to further points.

Standards of Review

Factual sufficiency. In reviewing the factual sufficiency of the evidence, the

Court must consider, weigh, and examine all of the evidence in the record. Dow Chem.

Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). The Court must reverse and remand for

a new trial if there is factually insufficient evidence to support the finding of a vital fact

or the jurys finding is so against the great weight and preponderance of the evidence as

to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635

(Tex.1986).

Legal sufficiency. Challenges to the legal sufficiency of the evidence must be

sustained when the record discloses one of the following: (1) a complete absence of

evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving

weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove

a vital fact is no more than a mere scintilla of evidence; or (4) the evidence established

conclusively the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742,

751 (Tex. 2003); The Kroger Co. v. Persley, 261 S.W.3d 316, 319 (Tex. App.Houston

[1st Dist.] 2008, no pet.).

Abuse of discretion. A contention that there has been an abuse of discretion

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presents a question of law. Smith v. State, 490 S.W.2d 902, 912 (Tex. App.Corpus

Christi 1972, writ ref'd n.r.e.). The trial court must consider a wide range of sanctions for

violations of the disciplinary rules in comparison to the alleged misconduct committed or

rule violated. Daves v. State Bar of Texas, 691 S.W.2d 784, 791 (Tex. App.Amarillo

1985, writ ref'd n.r.e.). A judgment of a trial court in a disciplinary proceeding may be so

light, or so heavy, as to constitute an abuse of discretion. Id. (emphasis added). An

appellate court should reverse the trial courts decision if an abuse of discretion is shown.

Eureste v. Comm'n for Lawyer Discipline, 76 S.W.3d 184, 202 (Tex. App.Houston

[14th Dist.] 2002, no pet.). A trial court abuses its discretion only if it acts in an

unreasonable and arbitrary manner, or when it acts without reference to any guiding

principles. Id.

A. Rule 3.02 was not violated and does not apply in this case.

Commission alleged that the acts and/or omissions of Defendant constituted

conduct in violation of Rule 3.02 of the Texas Disciplinary Rules of Professional

Conduct (Minimizing the Burdens and Delays of Litigation). Rule 3.02 states:

In the course of litigation, a lawyer shall not take a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter. This rule does not apply. It is designed to protect the clients adversary, not the

client from undue delay. Both this court and the Commissions lawyer stipulated that the

original contract between Defendant and Land was a sound contract and there was no

Rule Violation concerning the Contract. Indeed, Defendant required that Land have a

third party attorney read and approve the contract. According to the Commission, there

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was nothing frivolous or unethical about the way Defendant handled Lands case from

the time the Contract was signed in February of 2011 up to the time the Order approving

the Arbitration entered in August of 2012. After that, the court of appeals found that

there was nothing frivolous about the appeal.

1. The rule does not apply here.

Rule 3.02 is a rule that is categorized under the attorneys role as an advocate.

Application of this rule to the facts of this case was improper because Defendant was

represented by counsel throughout the proceedings with the Complainant, and as such,

Defendant did not act as an advocate and therefore the Rules set forth in Section 3 of the

TDRPC do not apply. The first four rules [Rules 3.01, 3.02, 3.03 and 3.04] address

various aspects of a lawyers duty to advance a clients cause only within the bounds of

the law. Handbook of Texas Lawyer and Judicial Ethics (2010-2011 edition), 8, p. 13.

Rule 3.02 applies to the conduct of a lawyer while representing a client and is

designed and intended to protect the clients adversary, not the client, from undue or

unreasonable delay, burden or expense. Nothing in the rule or the following comments

suggest that this Rule is in any way intended to govern a litigated dispute between a

lawyer and a former client. The comments to the rule make it clear that it is the clients

adversary who is sought to be protected under Rule 3.02. See TDRPC 3.02, comment 1

(because such tactics are frequently an appropriate way of achieving the legitimate

interests of the client that are at stake in the litigation, only those instances that are

unreasonable are prohibited).

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Here, Defendant was represented throughout the various stages of this proceeding.

He was not acting as an advocate of any third partys interests at any stage of the

proceedings, and therefore Rule 3.02 is not applicable to these facts. In addition, the

notes to Rule 3.02 expressly state that a lawyers obligations under Rule 3.02 are

substantially fulfilled by complying with Rules 3.01, 3.03 and 3.04. See TDRPC 3.02,

comment 2. There is absolutely no allegation that these rules were even violated, and

there would be no evidence to support such allegations.

Based on the existing case law related to the jurisdiction of arbitration panels in

the context of alleged incapacity of a party2, and the express mandate of the Court of

Appeals that the appeal was not frivolous, any determination under Rule 3.01 is

conclusively in Defendants favor.

2. The Court of Appeals opinion demonstrates that nothing about Defendants actions were frivolous or sanctionable.

The Court of Appeals, after considering the record, briefs and other documents

filed with the Court of Appeals, the Court stated that; an appeal is frivolous when the

record, viewed from the perspective of the advocate does not provide reasonable grounds

for the advocate to believe that the case would be reversed. See 01-12-00795-CV, 1st

Court of Appeals, Memorandum Opinion dated June 4, 2013, at p. 17, citing Smith v.

Brown, 51 S.W.3d 376, 381 (Tex. App Houston [1st Dist.] 2001, pet. denied).

The Court of Appeals noted that it has discretion to award a prevailing party

damages if the Court objectively determines that an appeal is frivolous and that the

2 In Re Morgan Stanley & Co., Inc., No. 07-0665 (Tex. 2009)

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decision to grant appellate sanctions is a matter of discretion that an appellate court

exercises with prudence and caution and only after careful deliberation. Id. The Court

refused to impose Lands request for Rule 45 sanctions and stated that it will do so only

in in circumstances that are truly egregious.

Lastly and most importantly, the Court of Appeals held that while the Court

disagrees with the merits of the appeal, the appeal is not frivolous and the circumstances

do not warrant sanction. Thus, there was no violation of Rule 3.02, Defendants appeal

of the arbitration award was not frivolous and Defendant pursued litigation that he

believed was meritorious. There was no contrary evidence offered that the appeal was not

reasonable.

B. Rule 1.15(d) was not violated and does not apply here.

Rule 1.15(d) states:

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation.

1. The rule does not apply herethere was no withholding of property.

Contrary to the allegations of Commission and Land that Defendant impermissibly

withheld property Land is entitled to and failed to return advance payments of fee that

has not been earned, not only has Defendant returned all items that were given to him by

Land, this was not even a matter presented prior to the grievance. In addition, on January

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22, 2013, post appeal, Defendant posted a cash bond in lieu of supersedeas bond in the

amount of $30,931.11 in the court registry of Harris County District Court, which

covered the original $27,500 arbitration award, plus the court costs and attorneys fees

incurred by Land to date, plus interest accrued from the date of judgment to posting the

cash bond.

The provisions of Rule 1.15(d) apply primarily to the return of property, files and

unearned fees at the time of termination. At the time Defendant was terminated, all

funds held in retainer were billed, and additional fees in in excess of $25,000 were owed.

At all times, Defendant complied with the contractual provisions relating to billing by

billing on a monthly basis at the address registered on the contract. The contract between

the parties provided a mechanism and construct for Land to dispute the billing, and Land

agreed to do so within 30 days of receipt of the billing, otherwise the bills would be

deemed final. (See contract, X. Miscellaneous Provisions, s N & Oon file with this

Court) Land never disputed any of the charges until well after the 30 day dispute period

had elapsed, and the retained had been exhausted.

The duty to promptly deliver to a client on termination of the representation any

funds or other property that the client is entitled to receive is not triggered where, as here,

there is a good-faith controversy between the lawyer and client regarding whether or not

the client is entitled to receive the funds or property in question. Otherwise, Rule 1.15(d)

would require a lawyer to give the client any and all funds the client requested, whether

rightly or wrongly. Such an interpretation of the rule is patently unreasonable and unfair.

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Where, as here, Land paid Defendant a retainer, which was placed in Defendants

trust account, and billed monthly as required by the contract, and no timely dispute of the

monthly bills was made, then Defendant at that point was permitted to deem those fees

earned and transfer those funds from his trust account to his operating account. See

Handbook of Texas Lawyer and Judicial Ethics (2010-2011 edition), 6:15, page 930,

citing Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736, 740 (Tex. App.

Austin 2007, no pet.).

2. Rule 1.15(d) was not violatedno funds or property were improperly held by Defendant.

There is no professional misconduct claimed for not returning funds prior to the

arbitration award. There is no claim for professional misconduct for the time period that

the district court case to affirm the arbitration award was pending. Rather, the

Commission claimed that the mere failure to pay the arbitration awarded funds after the

district court confirmed the arbitration award is professional misconduct. That certainly

does not comport with the entire concept of jurisprudence and the United States Court

system. Parties are granted the opportunity to appeal adverse rulings all the way to the

Supreme Court. Indeed, the Court of Appeals itself found that that the proceeding was not

sanctionable or frivolous.

In addition, Defendant also paid a cash bond into the state court registry in the

amount of the arbitration award, plus accrued court costs, fees and interest. Defendant

acted appropriately in placing the disputed funds into the court registry.

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In sum, there was no violation of Rule 1.15 (d) and Defendant did not

impermissibly withhold any documents or other property to which Land is entitled. The

allegations presented to the Office of Chief Disciplinary Counsel do not rise to the level

of professional misconduct unless every fee dispute between an attorney and his client

could be subject to a grievance.

The Commissions Counsel stated to the Court that the Defendant did not violate

any Professional Conduct Rule at the time of termination in June of 2011. This safe

harbor ( no Rule Violations ) continued up to the time the District Court entered its final

order August 2012. When the Land claim was not paid back, and the appeal was

noticed, that act caused a relation back to the original Termination and the Rule 1.15

(d) violation occurred. No factual or expert or law or case was offered to substantiate

counsels interpretation of the facts.

C. This court erred in excluding expert testimony. Defendant tried to provide expert testimony that would aid the court in

understanding the evidence and the intent of the rules. He offered Lillian Hardwick, Dan

Naranjo, Don Karotkin and Anthony Griffin as expert witnesses. The Commission

objected citing TRE 702, and saying that the use of expert testimony was not necessary in

bench trials.

This court agreed, and the judge stated: she didnt need anyone telling me what to

think. An offer of proof was made, and the court stood on its ruling. The court did

permit the expert testimony to be entered into the record as a bill of exception, in the

judges absence. Despite claiming not to need expert testimony, this court stated on the

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record on several occasions that it was unfamiliar with the rules and the procedures being

used in the disciplinary trial. Expert testimony by someone with the specialized

knowledge of the disciplinary rules and procedures could have been an aid to help the

judge navigate the rules, and the comments thereto, and even explain the intent of the

parties who drafted and crafted the rules and procedures. It was error to exclude such

expert testimony in this case.

The Petitioner mislead the court about the use of experts when it said that experts

might have been appropriate to determine competency. However, the use of experts is

common in disciplinary matters, and experts have been used for far more than

determination of competency. See e.g. Belt v. Commission for Lawyer Discipline, 970

S.W.2d 571 (Tex. App.Dallas 1997, no pet.)(expert disallowed because of failure to

timely designate); Commission for Lawyer Discipline v. C.R., 54 S.W.3d 506 (Tex.

App.Fort Worth 2001, pet. denied)(Expert testimony on advertising rules and

applicability to disciplinary rules); Izen v. Commission for Lawyer Discipline, 2009 WL

5148144 (Tex. App.Houston [1st Dist.] 2009, no pet.)(expert testimony allowed to

analyze advertisements and identify violations of the disciplinary rules); Kennedy v. State

Bar of Texas, 1995 WL 613072 (Tex. App. Houston [14th Dist.] 1995, no pet.)(expert

testimony offered by State Bar as to ethical standard of care for lawyers, and opinion of

respondents lack of competency and trustworthiness); Kershner v. State Bar of Texas,

879 S.W.2d 343 (Tex. App.Houston [14th Dist.] 1994, writ den.)(State Bar expert on

excessiveness of fee); State Bar of Texas v. Kilpatrick, 874 S.W.2d 656 (Tex. 1994)(State

Bar expert witness testified on barratry); McIntyre v. Commission for Lawyer Discipline,

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169 S.W.3d 803 (Tex. App. Dallas 2005, pet. denied)(Respondent experts testified

about the ethical obligations of lawyers to their client); Turton v. State Bar of Texas, 775

S.W.2d 712 (Tex. App. San Antonio 1989, writ denied)(Respondent expert witness

allowed to give opinion about the propriety for compulsory suspension related to whether

certain crimes were crimes of moral turpitude per se).

There is no dispute that the experts tendered by Bennett were qualified to testify as

experts relating to the professional disciplinary rules. Hardwick is a leading author on the

subject in the State of Texas, being a co-author of the treatise Handbook of Texas

Lawyer and Judicial Ethics. Hardwick also has served on the State Bar of Texas

Disciplinary Rules of Professional Conduct committee for a number of years, including

sole chair for three years. She also worked hand in hand with the Texas Supreme Court

with the redrafting of the new rules proposed in the 2011 Referendum. Even the counsel

for the Petitioner stated without equivocation that there is no question that Hardwick was

an expert in her field. It would be difficult for the Commission to dispute her

qualifications as an expert since the Commission has used her as a consulting expert in

the past. Hardwicks testimony was in the nature of summary judgment testimony, in

that her testimony was that even if the facts as alleged by the Commission were true, and

even if the facts as determined by the court were true, that the facts as presented and

proven do not implicate the rules claimed to have been violated by the Commission.

Dan Naranjo is a former U.S. Magistrate Judge in the Western District of Texas, a

former member of the Commission for Lawyer Discipline for eight years, and a member

of the Executive Committee of the State Bar of Texas. Naranjo was present and available

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to present a unique perspective to aid the judge in eliminating any confusion or

unfamiliarity with the rules. By having previously served on the Commission for Lawyer

Discipline, Naranjo could have offered the court the perspective of the ultimate client of

the Chief Disciplinary counsels office, whose interests were represented by Bersch.

Naranjo testified that based on the facts presented, he did not see a rule violation, and

certainly not the rules as alleged. The court could have received Naranjos perspective of

the client directing Berschs actions to help understand the issues before the court and be

fully informed of the rules and procedures in a disciplinary trial.

Don Karotkin also offered a unique perspective to this case that could have aided

the court in understanding the rules and procedures before the court. Karotkin is a 40

plus year lawyer in the Houston area, whose sub-specialty is defending lawyers in the

disciplinary process. Most importantly however, is that Karotkin formerly served on the

District Grievance Committee, serving a year and a panel chair. His perspective would

have been beneficial to the court because in his capacity as a grievance committee

member, Karotkin actually served as a trier of fact in disciplinary cases, and his

experience and familiarity with the rules and procedures would have been beneficial to

the court to clarify any confusion the court had with the rules and procedures.

Anthony Griffin was available and ready to share a most unique perspective to

assist the judge. Griffin has a history of bar discipline over his many years of practice,

including a series of grievances filed against him as a result of a personal vendetta by

former U.S. District Judge Sam Kent. The judge listened with incredulity as Griffin

related the factual basis of some 18 grievances filed against him as a result of comments

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made in orders issued by Kent, and went so far as to challenge Griffin on the truth and

validity of his statements. Kent was removed from his lifetime appointment as a District

Judge and convicted of criminal activity. Griffin was able to get those 18 grievances

dismissed against him. Griffins perspective as an accused attorney and how the rules

and procedures were applicable in his case and the instant case could have been helpful to

eliminate any confusion the judge had with respect to the rules and procedures in the

disciplinary case.

It is lamentable that the court was not exposed to the four different and relevant

perspectives that were available to aid the court in clarifying the rules and procedures

used in disciplinary trials, which the court repeated stated on the record that she was

unfamiliar with. While the exclusion of these witnesses at trial worked to the Petitioners

advantage, the repeated expression of unfamiliarity and confusion by the court about the

rules and procedures will likely result in this case being remanded back to the court for

trial, which could have easily been prevented by the appropriate use of experts at trial.

In addition, legal malpractice claims are similar in nature to professional

misconduct claims. Both involve rules and standards, the breach of which can be the

basis of liability for a lawyer. It is well settled that expert testimony is required in legal

malpractice cases, even in bench trials. Alexandar v. Turtur & Assocs., Inc., 146 S.W.3d

113, 115 (Tex. 2004); Abdelhak v. Farney, No. 04-07-00121-CV (Tex.App.San

Antonio 2007, no pet.) (concluding that not requiring expert testimony in legal

malpractice cases tried to the bench would require a subjective determination of the

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particular trier of facts knowledge, and declined to modify the expert testimony

requirement in the case of bench trials).

In this case, it was important for the court to have some basis for understanding

the rules, procedures and the link between a lawyers conduct and harm to a client. It was

also important for the judge to understand what the intent was behind the drafting of the

rules, and an expert was available on the spot to render such aid to the court. Expert

testimony would have been very beneficial in this case and should have been admitted. It

was harmful error to exclude such testimony.

D. This court abused its discretion because its order of disbarment is excessive and not warranted under the circumstances. The only testimonial evidence presented during this trial was that from the

Defendant. The Commission failed to put forth any expert or factual testimonial evidence

in support of its allegations or to support this courts finding of disbarment. In fact, the

Commission never even requested disbarment in this case. It also was rather odd that the

Commission refused to even cross examine the numerous factual and expert witnesses the

Defendant offered. Even the Defendant was never cross examined.

1. This court did not properly consider and weigh the 3.10 factors in face of the actual evidence presented at the trial.

The guiding principles a trial court is required to consider when deciding

sanctions for an attorneys misconduct are set forth in Disciplinary Rule 3.10. Pursuant to

Rule 3.10, a court shall consider: (A.) the nature and degree of the Professional

Misconduct for which Respondent is being sanctioned, (B.) the seriousness of and

circumstances surrounding the Professional Misconduct, (C.) the loss or damage to

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clients, (D.) the damage to the profession, (E.) the assurance that those who seek legal

services in the future will be insulated from the type of Professional Misconduct found,

(F.) the profit to the attorney, (G.) the avoidance of repetition, (H.) the deterrent effect on

others, (I.) the maintenance of respect for the legal profession, (J.) the conduct of the

Respondent during the course of the Committee action, (K.) the trial of the case, and (L.)

other relevant evidence concerning the Respondent's personal and professional

background. TEX. RULES DISCIPLINARY P.R. 3.10, reprinted in TEX. GOV'T CODE ANN.,

tit. 2, subtit. G, app. A1.

In its final judgment, the trial court stated [t]he Court, after considering all of the

factors listed in Rule 3.10 of the Texas Rules of Disciplinary Procedure, finds that the

proper discipline of the Respondent for each occurrence of professional misconduct is

disbarment. This court did not and could not have considered all of these factors

because the Commission did not present any evidence on these factors at the sanction

hearing. No factual or expert testimonial evidence was offered. No new documentary

evidence was offered.

On the other hand, Defendant offered numerous witnesses who addressed all 12

factors in a very favorable light to the Defendant. See attached letters a to k of witnesses

who appeared or were present at the trial. It is apparent that this evidence and testimony

was not even considered by the court. If the court had actually considered these factors

and weighed them appropriately from the evidence offered by the Defendant, this court

would not have reached a finding as egregious as disbarment under the facts of this case.

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Defendant introduced the following witnesses on his behalf at the trial in support of the

above factors:

1. Lillian Hardwick. She is the leading lawyer and author of ethics in Texas and has co-authored a three volume work entitled: Handbook of Texas Lawyer and Judicial Ethics. A portion of Ms. Hardwicks testimony was improperly excluded because this court stated it was too much information. Ms. Hardwick did however testify under Rule 3.10 about the Defendants reputation and standing in the community. (see attached letter B( a)). Further, her letter demonstrates why the Defendant did not violate the two Rules under consideration

2. Dan Naranjo. He is a former United States Magistrate and former President of the San Antonio Bar Association. He also served on the Commission for Lawyer Discipline for 6 years and is the present head of the Board of Directors of the Executive Committee of the State Bar of Texas. This court improperly excluded Mr. Naranjos opinions on Defendants reputation or rule violations but was able to testify during the sanction phase and how the 12 considerations under 3.10 were favorable to the Defendant. (see attached letter B-(b)). Legal experts Hardwick and Naranjo were in complete agreement that the Defendant did not violate any Disciplinary Rules or there were any considerations under R. 3.10 justifying any sanction.

3. Don Karotkin. He is board certified in PI and has defended numerous grievance matters in his 40 year career. He is familiar with the Defendants reputation. He was not allowed to testify about rule violations but gave testimony about Defendants impeccable reputation and character. (see attached letter B-(c)). Karotkin was very clear as to his opinions about how the court abused its discretion by imposing the death penalty of disbarment. He states in his attached letter: In my forty years of active trial practice, including over 100 jury trials and a number of bench trials, I have never been more shocked or dismayed than I was by this result. Additionally, his opinions reflected what Hardwick and Naranjo have stated:

In my opinion, Rule 1.15(d) does not apply here. The duty to promptly deliver to the client on termination of the representation any funds or other property that the

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client is entitled to receive is not triggered where, as here, there is a good-faith controversy between lawyer and client regarding whether or not the client is entitled to receive the funds or property in question. Otherwise, this rule would require a lawyer to give the client any and all funds the client requested, whether rightly or wrongly. Such a construction of the rule is patently unreasonable and unfair. I agree with your other expert that Rule 3.02 does not apply here. That rule applies to the conduct of a lawyer while representing a client and is designed and intended to protect the client's adversary, not the client, from undue or unreasonable delay, burden and expense. There is nothing in the rule or the comments following it that suggest that the rule applies to litigation between lawyer and former client. In fact, the comments, particularly comment 1, make it very clear that it is the lawyer's client's adversary whois sought to be protected.

4. Anthony Griffin. He is the leading civil rights attorney in Galveston,

and maybe in the State. This court improperly excluded his testimony on rule violations but he gave testimony on Rule 3.10 factors. (see attached letter (B-d)). He testified as both an attorney and the Defendants client. He notes that the Defendant has never been reprimanded by the Bar, took steps to protect the Complainant on appeal, and exercised his Constitutional Right to appeal.

5. Peyman Momeni. He is a local attorney who was the subject of a complaint and interim suspension and Defendants client at one point. The interim suspension was defeated, the complaint dismissed, the state prosecutor fired and the state investigator indicted. The court improperly excluded his testimony regarding Defendants character and Rule 3.10 factors. (see attached letter B-(e). Momeni notes the abuse of discretion and lack of any evidence of a Rule violation.

6. Jorge Lopez. He is a local young attorney who works for the local foundation that provides indigent legal services. He was one of the co-counsels in Defendants original suit that was arbitrated. He was

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present as co-counsel during this arbitration and testified that the entire procedure was ethical and not frivolous. His affidavit his attached as Exhibit B-(f)).

7. Jeff Wagnon. Wagnon was lead counsel for the Defendant and was

in complete agreement with the other legal experts that no rule violation occurred and that the disbarment was not justified. (see attached letter (B-g)). He also was aware of how strange some of the courts rulings were and how unfair they appeared.

Lillian Hardwick, Dan Naranjo, Don Karotkin, Anthony Griffin, Peyman Momeni,

Jeff Wagnon and Jorge Lopez all testified that Defendant did not commit any

professional misconduct in the instant case and has never committed an act that should be

subject to a grievance. There is no evidence of any prior grievance proceedings or

disciplinary proceedings.

The following cases have much more egregious facts and a court of appeals found

a lesser sanction (not disbarment) was warranted. See e.g. Musslewhite v. State Bar of

Texas, 786 S.W.2d 437, 439 (Tex. App.Houston [14th Dist.] 1990, writ denied)

(attorney, on probation for prior misconduct, suspended for three years for knowingly

violating terms of probation by soliciting accident victims and accepting new

employment when prohibited from doing so); Hebisen v. State, 615 S.W.2d 866, 867

(Tex. Civ. App.Houston [1st Dist.] 1981, no pet.) (attorney suspended for three

months for falsely telling two separate clients that suit filed, thus, resulting in limitations

bar and for refusing to return either clients' money or file until grievance filed); Howell

v. State, 559 S.W.2d 432, 43334 (Tex. App.Tyler 1977, writ ref'd n.r.e.) (attorney

reprimanded for filing divorce suit when he knew another divorce suit involving same

parties was pending in another court, for not telling judge of other case, and for refusing

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to answer a question at contempt hearing when ordered by the judge); Archer v. State,

548 S.W.2d 71, 7273 (Tex. Civ. App.Tyler 1977, pet. denied) (attorney suspended for

two years for depositing client funds in his own account for own use and for attempting

to get client to sign false affidavit); Galindo v. State, 535 S.W.2d 923, 925 (Tex. App.

Corpus Christi 1976, no writ) (attorney suspended for one year for misapplying and

commingling clients funds and for lying to grievance committee); State v. Baker, 539

S.W.2d 367, 369 (Tex. Civ. App.Austin 1976, no pet.) (attorney received three

reprimands for purchasing property at sheriff's sale and using property to secure further

compensation for himself without notice to, or consent of, client); Ingram, 511 S.W.2d at

25253 (attorney suspended for three years for misappropriating clients funds and for

lying under oath to grievance committee); State v. Pevehouse, 483 S.W.2d 565, 56566

(Tex. App.Eastland 1972, writ ref'd n.r.e.) (attorney suspended for one year for

embezzling $2,500.00 of client's funds).

2. The Commission failed to prove its allegations by a preponderance of the evidence.

In a disciplinary action against an attorney, the Commission must prove its

allegations by a preponderance of the evidence. TEX. R. DISCIPLINARY P. 3.08C,

reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A1 (Vernon 2005); see Curtis

v. Comm'n for Lawyer Discipline, 20 S.W.3d 227, 230 (Tex. App.Houston [14th Dist.]

2000, no pet.). Preponderance of the evidence means the greater weight and degree of

credible evidence. See Davenport v. Cabells, Inc., 239 S.W.2d 833, 835 (Tex. Civ.

App.Texarkana 1951, no writ) (emphasis added). This is the proper standard of proof

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for all issues in a disbarment proceeding. The Commission failed to put forth any

evidence to satisfy this standard. On the other hand, the Defendant showed at trial that

there were no Misconduct Rule Violations and no justification for the Disbarment.

3. Other documentary proof shows the lack of evidence to support this courts severe sanction and shows that it was an abuse of discretion.

Besides the previous documentation of what legal experts Hardwick, Naranjo,

Karotkin, Griffin, opined there was the documentation for attorneys Momeni and Lopez.

But there were others who participated or observed the trial, and the court should also

have the benefit of what these observers thought of the trial:

1. Attorney Rachaelle Reynolds. Reynolds is a first year attorney but observed the entire trial. (See attached letter (B-h)). She notes that over 150 clients have reviewed and endorsed the Defendant. No former client or attorney testified against the Defendant. She is adamant in her views of the trial that it was a fee dispute.

2. Foreign Law Student Observers. One of the unique events during

the trial was having international law students in the courtroom. German law student Hannes Jamssen and Armenian law student, Gayane Abrahamyan both were present from the start to the end of the trial. (See attached Letters, B-i and B-j). Jamssen noted that what had been presented in the Sanctions part of the trial to the court that the Defendant had been approved to mentor international German Law students coming to the United States from the University Of Munster, Germany. Ms. Abrhamyan summarized what all the other witness participants expressed: the outcome was unfair, illogical and unequal.

3. Anthony Graves. The court heard at length from Mr. Graves who

was a client of the Defendant. ( See Attached letter B-k) He spent 16 years on death row and was exonerated, in part, by the efforts of the Defendant. Mr. Bennett testified for Graves and then represented him as he filed a grievance against the former prosecutor who tried to put him to death. If the Commission wanted to get publicity about the case, they were able to accomplish that.

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Other letters from other attorneys, clients, and friends of the Defendant include:

a-1 Attorney Richard Schechter. Along with Don Karotkin, Schechter was a chairman of a Houston Grievance Committee, and the Chair of the Board of Houston Community College. He has been appointed to the Texas Supreme Court Committee on Judicial Appointments.

b-2 Attorney Stephen Estes. Civil trial attorney Estes represented the

Defendant at the Arbitration Confirmation hearing in district court. He firmly believed the Defendant had a right to appeal and that his actions were not professional misconduct.

c-3 Attorney Charles Houssiere. A seasoned Board Certified trial

attorney who has known the Defendant for over 3 decades and in many settings and contexts. (See attached Letter (c-3))

d-4 Attorney David Lee. Is a local Houston attorney who has known

the Defendant a number of years. He notes the total lack pattern of wrong doing that would doing tha would demonstrate unfitness. (See attached Letter d-4))

e-5 Attorney Kirk Kennedy. Mr. Kennedy has an LLM in tax and has

worked as co-counsel with the Defendant on several legal matters. He is greatly concerned about a disbarment without any evidence. ( See attached letter e-5).

f-6 Attorney and International Mediator Barbara Radnofsky. She has

known the Defendant through CLE programs they have worked on and other community activities. (See attached letter f-6)).

g-7 Mike Willborn. Willborn has known the Defendant for 60 years

since they were in kindergarten in Amarillo, Texas. He has never known of an instance of impropriety involving the Defendant. (see attached letter g-7)).

h-8 John Dossey. Mr. Dossey who has a master degree in architecture

from Rice has known the Defendant for nearly 40 years. He describes the Defendants community and professional activities. (see attached letter h-8)

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I-9 Tommy Thompson (to be substituted later).

j-10. Counselor David Lockett - Mr. Lockett works with the Defendant by helping his clients recognize issues and difficulties that need to be addressed. In working with the Defendant, he has concluded: I believe when we look at the facts of this situation there should be definite consideration for reinstatement for Mr. Bennett to the profession he has honored, glorified, and exemplified with his past 40 years of service to the cause of liberty and justice for all. (see attached letter ( j-10))

k-11 Vince McCauley. This friend of the Defendant has been part of a recovery group that the Defendant has facilitated for several years. He states about the Defendant: His selflessness and willingness to give of his time and energy to serve others are qualities Im seeking to emulate in my daily life. (see attached letter (k-11))

l-12 Gary Cunningham. Mr. Cunningham has been involved in community ministry with the Defendant for over half-a-decade. He has studied the outcome of the disbarment case and reviewed documents with his attorney-wife and other attorneys. As a member of the public, he writes: My wife is an attorney, and I asked her why an attorney would be disbarred. She indicated to me that the main reason for disbarment was a misuse of funds. Prior to my writing this letter, I asked Bob to send me the history of this case, and as a layman, I have reviewed the facts that are in dispute, as well as the bond that was put up to secure any funds that would be awarded to the plaintiff. I reviewed the pleadings of the case. I also reviewed these documents with other attorneys. I know Bob well enough to know that he is tenacious, headstrong, focused and hard headed. I also know Bob to be honest and to have the unquestioned integrity. I called Bob, and asked him who did he make mad enough to make this kind of a ruling?, because I could not see any evidence that would warrant disbarment. As a businessman and layman, this is the only reason, other than the judge did not know what she was doing, that I can see that the decision to disbar him was justified. (see attached letter. (l-12)

m-13 Ali Candir. This final letter for the Court to consider is from the Executive Director of the Dialogue Institute of the Southwest where the Defendant has been on the Board and served as the Chair of the Steering Committee for the Peace Garden. In concluding his letter, Mr. Candir states: As a final note, I must also add that besides all his professionalism qualities and being an interfaith

26

promoter, I am proud to have Bob as a friend. I have been honored to have him in my home, and we have shared many meals together. He is an example personality of sincerity, love of human being and integrity. (see attached letter (m-13)).

In sum, this court heard from numerous witnesses at trial on the Rule 3.10 factors

that this court was required to consider before reaching its decision. Now this court has

numerous more statements and letters confirming that there was no rule violation by

Defendant and the disbarment sanction is not supported by the evidence.

PRAYER

Defendant Robert S. Bennett, respectfully requests that this Court grant this

Motion for New Trial. Defendant further pray for such other and additional relief, at law

or in equity, to which Defendant may be justly entitled.

Respectfully Submitted,

/s/ Jessica Z. Barger Jessica Z. Barger State Bar No. 24032706 WRIGHT & CLOSE, L.L.P. One Riverway Ste. 2200 Houston, TX 77056 (713) 572-4321 Fax: (713) 572-4320

/s/ Gaines West Gaines F. West, II State Bar No. 21197500 WEST, WEBB, ALLBRITTON & GENTRY 1515 Emerald Plaza College Station, Texas 77845 Phone: (979) 694-7000 Fax: (979) 694-8000 /s/ Jeffery D. Wagnon Jeffery D. Wagnon

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State Bar No: 20661600 515 Louisiana St. Suite 200 Houston, Texas 77002 Phone: (713) 225-6000 Fax: (713) 225-6001

ATTORNEYS FOR DEFENDANT

CERIFICATE OF SERVICE

I hereby certify that the foregoing document has been served upon opposing

counsel, Tim Bersch, Assistant Disciplinary Counsel, 600 Jefferson, Suite 1000, Houston,

Texas 77002 by facsimile at (713) 758-8292 and/or certified mail, return receipt

requested on this 16th day of April, 2014.

/s/ Jeffery D. Wagnon Jeffery D. Wagnon

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