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In re Kubosh Bail Bonding

Court of Appeals of Texas, First District

May 16, 2017

IN RE KUBOSH BAIL BONDING, KUBOSH LAW OFFICE, PAUL KUBOSH, AND FELIX MICHAEL KUBOSH, Relators

         Original Proceeding on Petition for Writ of Mandamus

          Panel consists of Justices Jennings, Keyes, and Brown.

          OPINION

          Evelyn V. Keyes Justice

         In this mandamus proceeding, relators, Kubosh Bail Bonding, Kubosh Law Office, Paul Kubosh, and Felix Michael Kubosh (collectively, "the Kuboshes"), ask this Court to vacate the trial court's order refusing to require real parties in interest ("the Plaintiffs") to produce unredacted copies of twelve emails ("the Emails") exchanged among one of the Plaintiffs' counsel of record, a paralegal for the other law firm representing the Plaintiffs, and Andrew Sullo, a third party defendant and also a real party in interest. The trial court ruled that the Emails were protected from discovery under the work product privilege.[1] In two issues, the Kuboshes contend that (1) the Emails do not constitute work product, or, alternatively, if the Emails are work product, they are discoverable work product, and (2) that the denial of discovery of the Emails severely compromises their ability to present their claims and defenses, thus entitling them to mandamus relief.

         We conditionally grant the petitions for writ of mandamus.

         Background

         Relator Paul Kubosh, an attorney, owns and operates Kubosh Law Office in the City of Houston. His brother, Felix Michael Kubosh, owns and operates Kubosh Bail Bonding. These offices are located adjacent to each other near the City of Houston municipal courts. Third-party defendant and one of the real parties in interest Andrew Sullo, also an attorney and bondsman, is a partner at Sullo & Sullo, LLP, a Houston law firm that, like the Kubosh Law Office, has a substantial practice relating to traffic tickets and warrants arising out of unpaid tickets. The Plaintiffs are seventy-four individuals who had warrants issued against them due to unpaid traffic tickets and who approached Sullo for a bond.[2]

         In 2011, the Texas Legislature enacted Government Code section 82.0651, which creates civil liability for prohibited acts of barratry. Section 82.0651(c) provides:

A person who was solicited by conduct violating the laws of this state or the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas regarding barratry by attorneys or other persons, but who did not enter into a contract as a result of that conduct, may file a civil action against any person who committed barratry.

Act of May 5, 2011, 82nd Leg., R.S., ch. 94, 2011 Tex. Gen. Laws 534, 535 (amended 2013) (current version at Tex. Gov't Code Ann. § 82.0651(c)). If a person prevails in a civil barratry action under section 82.0651(c), the person shall recover from each person who engaged in barratry: (1) a penalty in the amount of $10, 000; (2) actual damages caused by the prohibited conduct; and (3) reasonable and necessary attorney's fees. Tex. Gov't Code Ann. § 82.0651(d) (West Supp. 2016). Section 82.0651(e) provides that "[t]his section shall be liberally construed and applied to promote its underlying purposes, which are to protect those in need of legal services against unethical, unlawful solicitation and to provide efficient and economical procedures to secure that protection." Id. § 82.0651(e). This statute became effective on September 1, 2011.

         In 2013, the Texas Legislature amended section 82.0651(c) to specify that a person who was solicited by conduct violating Penal Code section 38.12(a) or (b) or Texas Disciplinary Rule of Professional Conduct Rule 7.03, as opposed to any law or disciplinary rule of Texas, but who did not enter into a contract as a result of that conduct, may file a civil action against a person who committed barratry. Id. § 82.0651(c). Penal Code section 38.12(a) provides that a person commits the offense of barratry or solicitation of professional employment if, with intent to obtain an economic benefit, the person:

(1) knowingly institutes a suit or claim that the person has not been authorized to pursue;
(2) solicits employment, either in person or by telephone, for himself or for another;
(3) pays, gives, or advances or offers to pay, give, or advance to a prospective client money or anything of value to obtain employment as a professional from the prospective client;
(4) pays or gives or offers to pay or give a person money or anything of value to solicit employment;
(5) pays or gives or offers to pay or give a family member of a prospective client money or anything of value to solicit employment; or
(6) accepts or agrees to accept money or anything of value to solicit employment.

Tex. Penal Code Ann. § 38.12(a) (West 2016). Section 38.12(b) provides that a person commits an offense if the person "knowingly finances the commission of an offense under Subsection (a), " "invests funds the person knows or believes are intended to further the commission of an offense under Subsection (a), " or "is a professional who knowingly accepts employment within the scope of the person's license, registration, or certification that results from the solicitation of employment in violation of Subsection (a)." Id. § 38.12(b).

         Rule 7.03(a) of the Texas Disciplinary Rules of Professional Conduct provides:

A lawyer shall not by in-person contact, or by regulated telephone or other electronic contact as defined in paragraph (f) seek professional employment concerning a matter arising out of a particular occurrence or event, or series of occurrences or events, from a prospective client or nonclient who has not sought the lawyer's advice regarding employment or with whom the lawyer has no family or past or present attorney-client relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain.

Tex. Disciplinary Rules Prof'l Conduct R. 7.03(a), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (West 2013) (Tex. State Bar R. art. X, § 9); see id. R. 7.03(f) ("As used in paragraph (a), 'regulated telephone or other electronic contact' means any electronic communication initiated by a lawyer or by any person acting on behalf of a lawyer or law firm that will result in the person contacted communicating in a live, interactive manner with any other person by telephone or other electronic means.").

         Beginning in September 2011, almost immediately after section 82.0651 became effective, the Plaintiffs approached Sullo at his Houston office for a bond and representation regarding traffic tickets that were in "warrant status." Sullo averred that he informed each of the Plaintiffs about his office's "price match" program that involved the Plaintiffs calling a competing bail bond company to receive a quote and Sullo agreeing to beat the quoted price by ten dollars. Prior to making a phone call for the price match program, each Plaintiff signed a "Disclosure & Agreement" form that set out the basis of the program. This form included the following paragraph:

II. Potential Legal Action - Attorney [Sullo] has reason to suspect that upon Client [the respective Plaintiff] making Client's Price Match phone call to the bond company, the Bond Company will transfer the call to a law firm without Client's request or consent. Attorney believes this action may give rise to a civil cause of action against the bond company or law firm under a new barratry statute or other law which, if successful, may result in money damages for Client. In some instances, the bond company may also quote on behalf of an attorney or law firm which may also give rise to a cause of action. Client agrees to make this phone call knowing that these potentially illegal or unethical actions may occur by the bond company or law firm. After Client's phone call, Attorney will discuss with Client the potential for a legal cause of action by Client against the bond company. If Client wishes to pursue a legal cause of action against the bond company and Attorney believes a legal cause of action does indeed exist, Client will be required to sign a separate contact agreement with Attorney. By signing this Disclosure & Agreement, Client is not committed or obligated to hire Attorney to pursue a legal cause of action against the bond company.

         The Disclosure & Agreement form also asked for the Plaintiffs' consent to record the phone call, stating that "[t]his recording may be used, with Client's consent, to help prove the illegal and unethical action by the bond company or law firm."

         Each of the Plaintiffs, in the presence of Sullo or an employee of his law firm, made a call to Kubosh Bail Bonding. Sullo provided each Plaintiff with a printed "Instruction" sheet, which set out several questions to ask while on the phone, including a question about whether the quoted price included attorney representation and a question about whether the Plaintiff should report to Kubosh Bail Bonding or Kubosh Law Office to finalize paperwork. In each case, an employee of Kubosh Bail Bonding answered the phone and, upon discovering that the caller had traffic tickets in warrant status, transferred the call to an employee of Kubosh Law Office. This employee asked the Plaintiffs questions about their tickets and warrants, quoted a price for the bonds, and stated that the quoted price included legal representation and that Kubosh did not offer bonding services without representation. After hanging up with the Kuboshes, each Plaintiff contemporaneously signed an "attorney-client contract" with Sullo, in which the Plaintiff "retain[ed] Attorney to prosecute all claims against all necessary defendants arising from possible acts of barratry committed in attempting to obtain legal services." The representation contract included provisions allowing for Sullo to withdraw if he determined that the claims lacked merit or were not economically feasible and allowing for Sullo to associate with other attorneys or law firms in prosecuting the case.

         The majority of the Plaintiffs, including named Plaintiff William Carter, made their calls to the Kuboshes in September and October 2011. Several Plaintiffs made calls in 2012, including named Plaintiffs Michael Youngblood and Brandon Nash, and some Plaintiffs made calls as late as September 2013. Seventy-two of the Plaintiffs met with Sullo in his Houston office. Youngblood and Nash, while having traffic tickets from the City of Houston, are both residents of Beaumont, ...


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