Posted in Ethics

Reporting Attorney Misconduct in Texas, Part III

Brandy Wingate Voss

6963115_434c62cc74_oIn the previous two installments of this series (Part I and Part II), we explored the requirement to report attorney misconduct. In this last installment, we explore the various State Bar of Texas resources that can assist in the determination of whether to report and whether to refer the attorney for help instead of discipline.

Ethics Resource Page

The State Bar provides a whole host of ethics resources for lawyers. They can be accessed here. From this page, attorneys can easily locate various governing and procedural rules, information about the grievance system, solicitation and barratry information, committee information, and numerous other valuable resources. Continue Reading

Posted in Ethics

Reporting Attorney Misconduct in Texas, Part II

Brandy Wingate Voss

23076321801_022d951734_oThis is the second in a three-part series exploring the duty to report attorney misconduct in Texas. Last week, we reviewed Texas Disciplinary Rule of Professional Conduct 8.03, which is the source of the reporting requirement. This post focuses on how courts and the Texas Professional Ethics Committee have treated the issue.

Case and Ethics Opinion Interpretations

Rule of Disciplinary Procedure 6.06 requires publication of appellate court and board of disciplinary appeals opinions involving attorney misconduct. But there are very few cases discussing Rule 8.03. In fact, I could not locate a single published opinion involving a lawyer who was disciplined for failing to report misconduct. Rather, many of the cases that address Rule 8.03 involve a court’s decision to report misconduct by lawyers appearing before the court. Continue Reading

Posted in Appellate Practice, Litigation Support

The Value of Second Opinions

D. Todd Smith

5688645738_6eae5c1586_oRecently, Patrick Lamb of In Search of Perfect Client Service asked how often in-house counsel seek a second opinion about strategy. (Rarely, it seems.) Drawing on medical statistics, he noted that 50% of Americans do not get second opinions for important medical diagnoses, but among those who do, the second opinion leads to changes in the diagnosis or treatment 30% of the time.

As Patrick said:

Fresh eyes are often the best eyes.  People trying to solve a problem often lock-in on a strategy and play favorites with it. Fresh eyes can provide needed perspective.

A fresh set of eyes is one of the best attributes an appellate lawyer brings to a trial team. A new perspective can be beneficial when critiquing a strategy after the fact—as in Patrick’s example of a bellwether product-liability trial—but even more so while the matter is still going on. Appellate counsel with the ability to see two or three steps ahead can impact a case in the moment.

Would a second opinion from an appellate lawyer change a decisionmaker’s strategy in real time? There’s no way to know if it’s never sought.

Image courtesy of Flickr by Sean MacEntee.

Posted in Appellate Practice, Ethics

Reporting Attorney Misconduct in Texas, Part I

Brandy Wingate Voss

5225067415_40b702f083_o“Nobody likes a tattletale,” said my mother when I would tell on my sister for various transgressions, like stealing my Barbie dolls. The lesson my mother was teaching was that I should deal with my sister myself. As members of a self-regulated bar association, however, Texas lawyers are required to report serious violations of the ethical rules. The failure to report can lead to discipline for the lawyer who witnesses a violation.

Often times, the facts giving rise to an ethical violation are unclear and, the witnessing lawyer may feel unsure about making a report. I suspect the fear of being wrong or labeled a “tattletale”/disgruntled opponent often stops reports from occurring.

My next few posts will explore the duty to report. The good news is that (1) the disciplinary rules anticipate a “measure of discretion” by the reporting lawyer, (2) the rules require reporting for only substantial violations that go to the heart of a lawyer’s abilities or suitability for practicing law, and (3) the bar provides resources to help a lawyer determine if he or she has a duty to report and, where substance abuse is involved, a way to help the offending lawyer instead of discipline.

Continue Reading

Posted in Appellate Practice, Oral Argument

Practicing Bathtub Law

D. Todd Smith


It may sound strange, but I practice bathtub law.

I don’t present myself as an expert in any substantive legal topic. To the contrary, as I wrote here several years ago:

Appellate lawyers are perhaps the last of the generalists.  Although appellate practice has gained notoriety as a specialty, it focuses less on the substantive law than on the lawyer’s research and writing ability, knowledge of appellate procedure, and familiarity with the court hearing the case.  Because appeals are limited to the trial record, knowledge of the client’s business and history are not as important as the ability to guide the client through the appellate process with the goal for that specific case in mind.

The bathtub metaphor compliments this description well. When I’m handling a legal issue, working on an appeal, or getting ready for oral argument, I learn (or re-learn) everything I need to know for that particular case, filling the tub to the brim. When the task is done, I pull the plug, let the tub drain, and start anew.

Hat tip to Thom Singer and Linda Smith, who discussed this metaphor on a recent episode of Thom’s podcast, Cool Things Entrepreneurs Do.

Image courtesy of Flickr by John Fink.

Posted in Litigation Support, Third Court of Appeals, Thirteenth Court of Appeals

We’re All Contract Appellate Lawyers

D. Todd Smith

15650921676_b57be1fb4b_oEvery so often, I hear about someone looking for a “contract appellate lawyer” to help with a particular case. Most of these inquiries are from other attorneys, but they sometimes come directly from the person in need of legal services.

A contract is fundamental to the relationships that provide business to appellate lawyers. In that sense, we’re all engaged on a contract basis. So, I’m left to wonder, what does the phrase “contract appellate lawyer” really mean? Let’s consider some possibilities.


Continue Reading

Posted in Litigation Support

Dream the Impossible Dream: Avoid Delay Caused by an Insurer’s Rehabilitation/Liquidation

Maitreya Tomlinson


I recently helped trial counsel avoid what has been a routinely granted stay in litigation when a defendant’s insurer is in rehabilitation/liquidation. In other words, even though the defending insurer was not a party in the litigation, trial courts would typically stay the litigation for six-months at a time (and longer) to accommodate resolution of the non-party insurer’s financial difficulties.

While this result might or might not raise a few eyebrows, this story isn’t much of a story without some background information. In this particular case, the Delaware Court of Chancery originally issued a rehabilitation order staying legal proceedings. The Delaware Court later issued a liquidation order after the insurer’s founder/president was indicted for making false statements to an insurance regulator. In its liquidation order, the Delaware Court explicitly restrained any legal action in which the insurer was obligated to defend an insured party. The defendants, who had received an earlier stay based on the rehabilitation order, moved for another stay pursuant to the liquidation order.

In their motion the defendants argued, almost by rote, that the Texas Insurance Code required trial courts to give full faith and credit to the Delaware liquidation order. They also argued that the principles of comity demanded the same.

The reasons trial courts grant these motions are not a mystery. The lack of similar precedent, or any helpful legal analysis, leaves them with little guidance in deciding whether to stay litigation. The Texas Supreme Court has decided that these orders require enforcement when the insurer is a defendant. See Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791, 794-97 (Tex. 1992). It has not addressed whether the orders require enforcement when the insurer is not a party. In what seems notable at first blush, an intermediate appellate court has stayed a case when the insurer had a duty to defend a party. The court did so, though, without fully analyzing the issue. In the absence of a clear roadmap, it is easy to see why trial courts stay litigation involving insolvent defending insurers.

In our case, however, a comprehensive legal analysis demonstrated that the trial court should not delay litigation based on a non-party insurer’s financial situation. Plaintiffs, therefore, should consider opposing similar motions instead of resigning themselves to six-month-plus delays in deciding a case’s merits.

Image courtesy of Flickr by evan p. cordes.

Posted in Mediation/ADR

Did the Legislature Change the Mediator-Appointment Process in Appellate Courts?

D. Todd Smith

IMG_9672I spent much of last week and part of this week participating in a mediation training program. Among other things, I learned about a new statute, Chapter 37 of the Texas Government Code (SB 1876), which became effective on September 1, 2015. This statute prescribes how courts are to appoint mediators, as well as guardians ad litem, attorneys ad litem, and guardians. How might this new law affect mediations in the appellate context?

Chapter 37 has two key features. First, it requires a court to establish and maintain a list of all persons registered with the court to serve as a mediator. The list must be posted at the courthouse and on the court’s website. The statute requires posting to take place annually.

Second, the statute establishes a process by which a mediator is to be appointed if the parties cannot agree on one themselves. The court must use a rotation system starting with the first mediator on the list. Once appointed on a case, the mediator goes to the bottom of the list. On finding good cause, however, a court may appoint someone off-list or out of order when the case is complex and the proposed appointee (1) possesses relevant specialized education, training, certification, skill, language proficiency, or knowledge of the case’s subject matter; (2) has relevant prior involvement with the parties or the case; or (3) is in a relevant geographic location.

The statute raises several questions, and the answers are not all that clear. Read on for some examples.
Continue Reading

Posted in Announcements, Blogs & Blogging, Technology

Continuing to Evolve

D. Todd Smith

4203965136_285096c091_oReaders may have noticed some changes around here. Allow me to tie them together with a brief explanation.

New Design

More and more users are accessing the internet through smartphones or tablets—a trend that is sure to continue. My friends at LexBlog have thus rebuilt the site to be mobile-friendly. I am very pleased with the simple yet stylish new look and how it renders on both desktop and mobile devices.

New Contributors

Since launching this venture in January 2007, I have transitioned from solo appellate specialist to leader of a four-lawyer appellate boutique. I am privileged to work with some really smart, insightful people. It only seems right to showcase them here.

New Strategy

Running this site could be a full-time job if I could figure out a tasteful way to monetize it. Failing that, I’ll keep practicing law. But the ebb and flow of law practice creates challenges when it comes to regularly posting good content. With other contributors on board, readers can expect to see something new each week.

These changes are significant but positive. Others are on the horizon, if I can implement them successfully. To keep up with the latest, subscribe by RSS or email, or follow us on Twitter at @TXAppellateLaw.

Image courtesy of Flickr by raneko.

Posted in Interlocutory Appeals, Litigation Support, Motions, Procedure

Certificates of Merit: Don’t Let Your Lawsuit End Before It Begins

Maitreya Tomlinson

9607147409_82d5f52659_oClients have called upon me with increasing frequency regarding certificate of merit issues. While somewhat innocuous, I have found that real danger lurks behind the certificate of merit requirements contained in Chapter 150 of the Texas Civil Practice and Remedies Code. Noncompliance, for example, may lead to dismissal with prejudice. Because of the potential harm and the frequency of interlocutory appeals concerning Chapter 150 issues, it makes sense to consult with an appellate professional with experience in these matters before filing a certificate.

In 2003, the Legislature enacted Chapter 150 as a threshold requirement to demonstrate merit in suits against professionals like engineers and architects. The Legislature made some notable changes to the statute in 2005 and 2009. Although the Legislature has diligently refined Chapter 150, it has never established the standard for a trial court to employ when deciding to dismiss the case with or without prejudice. And, appellate courts have yet to help guide trial courts in making these decisions.

Nonetheless, between the statute’s relatively frequent revisions, defending parties’ willingness to challenge a certificate’s adequacy, and the built-in interlocutory appeal of grants or denials of motions to dismiss, Chapter 150 jurisprudence is ever evolving. The law’s developing nature has also spawned some unresolved inconsistencies between different intermediate appellate courts that could trip up unwary filers.

In my experience, filers could avoid most pitfalls by making simple modifications to their certificates of merit before filing. Further, I believe involving appellate professionals early in the process can also provide the client with a jump on what often leads to defending against motions to dismiss and participating in interlocutory appeals. It also helps prevent leaving the suit’s fate in the trial court’s relatively unfettered hands to decide whether the court should dismiss your otherwise meritorious suit with prejudice.

Image courtesy of Flickr by Joe Haupt.