All the Wrong Reasons

 Posted on September 26, 2013 in Uncategorized

The last time we checked in with Robert S. Bennett, it was because Lillian Hardwick, the State Bar's ethics "expert" who was going about opining on the matter of flat fees in criminal cases, had associated herself with him to lecture and write an article on ethics.

Before that, we saw Bennett appearing on a major federal criminal fraud case as a "concierge lawyer."

Now he's facing a lawsuit by the Commission for Lawyer Discipline.

The meat of the Commission's allegations is that a guy named Land hired Bennett in 2011 to represent him in a breach-of-contract suit...

and the development of a potential federal Civil Rights action. The latter matter would involve Land's belief that he is the subject of a campaign of covert surveillance by unnamed individuals, possible federal agents. Although Land's beliefs are fantastical on their face and other attorneys had declined to represent him, [Robert S. Bennett] took on Land as a client. Respondent demanded, and Land paid, a $50,000 retainer.Land and [Robert S. Bennett] entered into an Attorney Retainer and Dispute Resolution Agreement. At the time the Agreement was signed, Land requested that invoices be emailed to him, since he would be traveling extensively for the next several months. Respondent did e-mail the first invoice, but mailed subsequent invoices to the residence of Land's parents. As a result, Land did not see the invoices for several months. Eventually Land became aware that Respondent had invoiced him for approximately $75,000.00 in legal fees, despite the fact that there had been no significant progress on the Lambert Lawsuit. And given the nature of the second matter, no progress was in the realm of reasonable possibility.

Land fired Bennett and disputed the invoices. Per the contract, the dispute was arbitrated-arbitration was to be "binding, conclusive, and non-appealable." The arbitration panel denied Bennett the additional $25k that he sought in fees, and awarded Land $27,500 as a partial refund of the $50,000 that he had paid up front.

Bennett asked for the panel's award to be modified. The panel denied the request.

Land filed suit in District Court, the award was confirmed. Despite the bindingness of the arbitration (per the contract that he, presumably, wrote) Bennett appealed ((O Lillian Hardwick, where art thou?)) to the First Court of Appeals (docket), which affirmed the trial court judgment in June (PDF), then moved for rehearing and for en banc reconsideration, both of which were denied two days ago. If he's true to form, he'll file a petition for review in the Texas Supreme Court, and that will be denied.

Something the Commission leaves out is that while the appeal was pending in the First Court of Appeals Bennett filed, and then nonsuited, a fraud suit against Land.

I was initially appalled by the allegation that Bennett took fifty grand from a guy saying things suggestive of paranoid delusion. ((Or that were, in 2011, suggestive of paranoid delusion. Two years ago the idea that the government was listening to all of our phone calls and reading all of our emails seemed absurd to most of us. It turns out that Land was the subject of a campaign of covert surveillance by federal agents, as are we all.))

Then I thought, "well, why the hell not?" If it gives a little peace to the client to have a "lawyer" "working on" his "potential civil-rights case," that's worth something. Who's to say it isn't worth $50,000? The more the clients pay, the happier they are; $50,000 worth of placebo lawyering might do more good for the client than anything else anyone could do for free. ((The psychiatry industry explained.)) And while the client may not be on the same wavelength as most of us, that's no reason to think that he's not competent to enter into a contract.

I struggle with what to tell the folks who call because the government is scanning their brainwaves and posting their thoughts on the side of trucks. The best I've been able to do is earnestly recommend that they seek mental-health care; that generally makes them think that I'm a "scanner" too, so it is a lousy solution.

Maybe it'd be better to take a reasonable fee to represent the client in the matter, and then give him the same advice, which might be more palatable when it's paid-for than when it is free.

So while the Commission for Lawyer Discipline clearly finds Robert S. Bennett's having taken money to look into a civil-rights lawsuit against the surveilleurs distasteful enough to mention in its court filings, ((To the embarrassment or detriment, perhaps, of Mr. Land)) it is, in itself, neither a violation of the rules nor unethical.

To give Robert S. Bennett even more benefit of the doubt, we don't know how much of the $75,000 fee was for work on the Lambert Lawsuit, and how much was for work on the surveillance matter. If he took on the Lambert Lawsuit and agreed to help Mr. Land with the surveillance matter just to give Mr. Land some peace of mind, he might even be commended.

The arbitrator's $50,000 judgment in favor of Mr. Land does cast some doubt on this benefit-of-the-doubt interpretation, and the arbitrator's interesting order above casts even more. But in any case the Commission doesn't directly allege that Bennett did something wrong in contracting to help Mr. Land with his surveillance problem.

The rules that the Commission alleges Robert S. Bennett violated are:

1. 1.01(b)(1) ("In representing a client, a lawyer shall not...neglect a legal matter entrusted to the lawyer.");

2. 1.03(b) ("A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.");

3. 1.15(d) ("Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a clients 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.");

4. 2.01 ("In advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice.");

5. 3.01 ("A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous."); and

6. 3.02 ("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.").

Essentially, the State Bar's claim seems to be that Bennett violated the disciplinary rules by litigating the fee dispute post-arbitration. For all the reasons that might exist to discipline Robert S. Bennett, I don't see that particular claim sticking.