| The following was received
from Pratt on Texas listener and friend of the program, Kevin Glasheen:
I am sending you this email because I care about your opinion.
I have practiced law in Lubbock and in Texas for over twenty years, and my
reputation matters to me. You might have seen the news coverage where it has
been reported that the State Bar has filed a suit against me accusing me of
ethical violations. I am writing this Memo to tell “the rest of the story.”
Specifically, to correct the impression that since the State Bar has filed
suit implies that Bar has already concluded that I am guilty of misconduct.
This is an incorrect conclusion. Further, I want to dispel the notion that
there is any substance to these claims.
These allegations arise out of a fee dispute with our former clients Steven
Phillips and Patrick Waller. We represented those clients in a claim for
compensation for their wrongful incarceration after they were exonerated
with DNA evidence. Our firm represented a dozen such clients in compensation
claims, some in joint representation with Attorney Jeff Blackburn of
Amarillo.
We represented these men under a contract that provided for a fee of 25% of
any statutory compensation recovered and 40% of any recovery in a civil
rights lawsuit. If the men accepted statutory compensation, they had to give
up their right to proceed with a lawsuit. At the time the clients hired us,
statutory compensation only paid $50,000 per year of incarceration and they
didn’t want to accept it.
We proceeded with litigation of some of these claims against the City of
Dallas and with the threat of ongoing litigation, eventually persuaded the
City of Dallas to join us in trying to increase the statutory compensation
to help get the cases settled. We were successful in getting the bill passed
through the 2009 Texas Legislature to increase compensation to $160,000 per
year of incarceration, more than tripling the money that our clients would
have received.
After the Legislature increased compensation, the clients elected to accept
statutory compensation instead of proceeding with the Civil Rights Claim in
Court. Just weeks before receiving his money, Steven Phillips fired us.
Patrick Waller waited until he received his money and a week later hired a
lawyer to make a claim against us.
These two former clients filed a lawsuit against us, using the same
attorneys. The lawsuit they filed in Dallas alleges that our fees were
excessive; that all we did was file a one page form to get compensation, and
that we violated a law that prohibits charging a contingency fee for
lobbying.
The fees we charged were not excessive. The 25% contingency fee that we
charged was a customary fee. Before we accepted these cases, we checked with
lawyers who handled compensation claims before and learned that lawyers
generally charged a contingency fee for filing for statutory compensation,
charging between 25% and 33% of the compensation. Federal Civil Rights
claims are customarily a 40% contingency fee.
With regard to the allegation that we didn’t do anything but fill out a
one-page form: our law firm spent thousands of hours and hundreds of
thousands of dollars advancing this group of wrongful conviction cases. We
were litigating companion cases against the City of Dallas in Federal Court
and had threatened litigation for these two clients. I don’t believe that
our bill to increase compensation would have passed but for the support of
the City of Dallas. It was our litigation and the threat of more litigation
that compelled the City of Dallas to send a lobbyist to Austin. It was the
City of Dallas support that helped persuade the legislature to increase
compensation and settle these cases. The idea that there was simply a
one-page form to get compensation is a gross misrepresentation of the facts.
Our law firm took a big risk with these cases. If our clients didn’t accept
statutory compensation, we would have had to go to trial in Federal Court on
lots of Civil Rights Cases. Federal Civil Rights cases are notoriously
difficult. We didn’t come up with the plan to settle these cases by pursuing
an increase in statutory compensation until we were well into these cases.
With regard to the allegations that we violated the prohibition on lobbying
for contingency fee, we did not violate any such law. There is a statute
that states that lobbyists shall not charge a contingency fee for lobbying.
However, before we even started lobbying, we researched the law and found an
Attorney General opinion that states that if a lawyer represents a client in
a pending case or claim, then a lawyer can lobby for a statutory settlement.
As the Attorney General pointed out in a very similar situation, our fee is
not contingent on getting a bill passed, because the client could elect to
refuse the statutory compensation and proceed with a claim. Therefore, our
fee is contingent on settling the clients claim, not getting the bill
passed. In fact, two of our clients have elected to pursue litigation rather
than accept statutory compensation.
Mr. Phillips’ claims have already received a skeptical reception in Court.
As the lawsuits filed by the clients have proceeded in Dallas, we have had a
preliminary hearing where the Court heard several days of testimony. At the
conclusion of that hearing, the Court made several comments on the record
indicating that the Court was not impressed with the client’s claim that "Glasheen
had done nothing" or that the "contract was illegal," and he was not
impressed with the argument that we had violated the prohibition on lobbying
for contingency fee. It was only after the Judge stated on the record that
he was not impressed with the client’s claims that the clients then filed
this grievance with the State Bar.
The State Bar never conducted any meaningful review of the grievance before
filing suit. Our Reply was due October 25th. We filed a lengthy response.
The same day that the State Bar received our response, October 25, 2010, the
Bar issued its letter stating it had found "just cause" to proceed with the
grievance. It appears that the Bar did not even consider our reply. The Bar
does not conduct its own investigation of a grievance; it simply reviews the
grievance itself (and supposedly the response) to see whether it states a
claim, and if it does, then it passes the grievance along to its
Disciplinary Counsel for prosecution. The Bar does not conduct a hearing
anymore – it used to conduct a hearing where the complaining client, the
attorney, and witnesses would present their sides,their arguments, and their
evidence, and then the Grievance Committee would decide whether misconduct
has occurred. This procedure was removed with the last major overhaul to the
procedural rules that became effective in 2004. The complaint and response
are not even reviewed by a Grievance Committee any more – all of the
decision-making is in the hands of the Bar counsel assigned to review that
particular file. Nobody from the State Bar has even spoken with me.
Grievances are not usually public. Instead they are usually handled by a
local committee of lawyers. However, I elected for the more public “judicial
procedure.” Under the private committee procedure, there are no rules of
discovery, no rules of evidence, and no appeal. I believe we are right, and
I want to have the tools to prove it. The tradeoff is that while we get due
process, the grievance is publicized. More than 90% of grievances are
handled privately at the option of the attorney who is the subject of the
grievance. The fact that this grievance is public makes it appear that the
State Bar has already judged this grievance. They have not. When this
grievance is judged, I am confident that it will be dismissed.
I am very proud of the work that we did in these cases representing the
exonerated clients. We did a great job for them. We got them more than three
times as much compensation than they would have received otherwise. We put
in a tremendous amount of work, time, money, and effort to get these results
for our clients. We never had a complaint from any of the clients until
after the money came in and they didn’t want to pay their fees. The vast
majority of our clients have been satisfied with our services and have been
happy to pay the fees they agreed to pay. It is unfortunate that a public
filing of a grievance complaint creates the impression that the State Bar
has already judged the grievance or even conducted a meaningful review of
the grievance, because that is simply not the case. Thank you for your
interest in reading the “rest of the story”.
Thanks,
Kevin Glasheen
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