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Hamlett v. Commission For lawyer Discipline

Court of Appeals of Texas, Seventh District, Amarillo

December 28, 2017

LAURIE RAY HAMLETT, APPELLANT
v.
COMMISSION FOR LAWYER DISCIPLINE, APPELLEE

         On Appeal from the 40th District Court Ellis County, Texas Trial Court No. 88890, Honorable Wesley Ward, Presiding

          Before QUINN, CJ., and CAMPBELL and PIRTLE, JJ.

          OPINION

          PER CURIAM.

         Laurie Ray Hamlett appeals from a judgment publically reprimanding her for violating Rules 3.01, 3.02, and 8.02(a) of the Texas Disciplinary Rules of Professional Conduct. She seeks to reverse that judgment by contending that "the evidence is [legally] insufficient to support the trial court's findings of violations of the disciplinary rules." We affirm.[1]

         Standard of Review

         In conducting a legal sufficiency review, we consider the evidence in a light most favorable to the decision of the fact-finder while indulging in every reasonable inference favoring that decision. Pike v. Tex. EMC Mgmt, LLC, No. 10-14-00274-CV, 2017 Tex.App. LEXIS 5217, at *2 (Tex. App.-Waco June 7, 2017, pet. filed) (mem. op.). The standard of review also obligates us to credit evidence that supports the decision if a reasonable fact-finder could and disregard contrary evidence unless a reasonable factfinder could not. Id. So too must it be remembered that the fact-finder is the sole judge of the credibility of witnesses and the weight to be assigned their testimony. Id. And, if more than a scintilla of the evidence (when viewed in the above described manner) permits reasonable and fair-minded people to reach the finding under review, we are obligated to uphold the finding as being supported by legally sufficient evidence. Id. at *3.

         In applying the foregoing traditional standard of review, we eschew Ham lett's implicit invitation to examine the evidence with heightened scrutiny. That is, she suggests a violation of Rule 8.02(a) would require proof of certain elements by clear and convincing evidence.[2] If she were correct, then the standard of review described in Pike would be inapplicable. This is so given an observation in In re N.M., No. 07-17-00003, 2017 Tex.App. LEXIS 4466 (Tex. App.-Amarillo May 16, 2017, pet. denied) (mem. op.). There we said that, "[w]hile our traditional legal sufficiency . . . standard of review 'upholds a finding supported by "[a]nything more than a scintilla of evidence, "' that quantum of evidence does not equate to clear and convincing evidence Id. at *2 (quoting In re K.M.L, 443 S.W.3d 101, 112 (Tex. 2014)) (emphasis added). A standard of review requiring "more than a scintilla" would have to be utilized. See, e.g., In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002) (describing the standard of review on appeal when the burden of proof at trial is "clear and convincing evidence"). But, again, we decline her invitation to apply a heightened standard of review here and do so for several reasons.

         First and foremost, the Texas Rules of Disciplinary Procedure promulgated by our Supreme Court simply mandate that "Disciplinary Actions must be proved by a preponderance of the evidence." Tex. Rules Disciplinary P. R. 3.08(C), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A-1 (West 2013) (emphasis added); Thawer v. Comm'n for Lawyer Discipline, 523 S.W.3d 177, 183 (Tex. App.-Dallas 2017, no pet.). Being promulgated by our Supreme Court, we must follow them and defer to that body regarding the decision whether to impose both heightened standards of proof at trial and of review on appeal. See Tex. Rules Disciplinary P. Intro. ("The Supreme Court of Texas has the constitutional and statutory responsibility within the State for the lawyer discipline and disability system, and has inherent power to maintain appropriate standards of professional conduct and to dispose of individual cases of lawyer discipline and disability in a manner that does not discriminate by race, creed, color, sex, or national origin. To carry out this responsibility, the Court promulgates the following rules for lawyer discipline and disability proceedings.").

         Second, while claims regarding the sufficiency of the evidence need not be preserved for review in an appeal from a non-jury trial, see Tex. R. App. P. 33.1(d), Ham lett 's argument does more than merely question the sufficiency of the evidence and standard of review on appeal. She, in effect, questions the standard of proof utilized by the trial court at trial. Yet, she did not suggest below that a Rule 8.02(a) violation had to be established by clear and convincing evidence. Rather, her counsel actually argued that (1) "[t]he standards in a lawyer discipline are not as low as they would be in something like a malpractice case. I mean, here we are looking to see that they've got - the Bar has got to prove by a preponderance of the competent evidence that her conduct fell below the minimum standards . . ."; and (2) "[t]hey must prove by a preponderance of the competent evidence each and every element of each Rule." (Emphasis added).

         The goal underlying the rules requiring preservation of error are founded upon the policy that trial courts should be given the first opportunity to correct their own purported errors. See Mansions in the Forest, LP v. Montgomery Cty., 365 S.W.3d 314, 317 (Tex. 2012) (per curiam) (stating that "[f]irst, requiring that parties initially raise complaints in the trial court conserves judicial resources by providing trial courts the opportunity to correct errors before appeal" and "[s]econd, judicial decision-making is more accurate when trial courts have the first opportunity to consider and rule on error"). Here, Hamlett did not afford the trial court the opportunity to determine whether elements of Rule 8.02(a) had to be established via clear and convincing evidence. Instead, she argued that the Commission had to prove "each and every element of each Rule" by a preponderance of the evidence. Thus, her complaint before us regarding application of a clear and convincing evidence standard of proof at trial was not preserved.

         Application of Traditional Standard of Review

         We begin with addressing whether the evidence of record is sufficient to support the trial court's finding that Hamlett violated Rule 8.02(a) of the Texas Disciplinary Rules of Professional Conduct. Per that rule, a "lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge." Tex. Disciplinary Rules Prof'l Conduct R. 8.02(a), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (West 2013) (Tex. State Bar R. art. X, § 9).

         The record before us contains evidence that Hamlett moved numerous times to recuse Judge Scott E. Kurth of the Municipal Court for the City of Red Oak from presiding over proceedings in which she represented the defendant.[3] In one such motion, Hamlett stated as follows: "Because of Judge Kurth's disdain for me which he demonstrates in the forum of a public courtroom, I am convinced that he would never consider deferred adjudication probation for my clients if they pleaded 'no contest, ' especially if [the city prosecutor] voiced any opposition." This utterance was addressed at trial by the Commission. When it asked Hamlett if "Judge Kurth granted you deferred disposition [adjudication] in cases, " the witness answered, "Well, it happens

         Reasonably implicit in the statement made by Hamlett in her motion to recuse is the accusation that Judge Kurth relied on personal bias to deny her clients a particular kind of relief afforded to clients represented by others. Yet, evidence of record illustrated that he had granted her client's the relief in question, as expressly acknowledged by Hamlett at trial. These circumstances are more than a scintilla of evidence permitting a rational fact-finder to conclude that Ham lett's accusation against the judge constituted a statement impugning the judge's integrity. Knowing of information that negated the truthfulness of her accusation yet uttering it anyway is also more than a scintilla of evidence permitting a fact-finder to reasonably infer that the accusation was made with a high degree of awareness of its probable falsity or with reckless disregard as to its falsity. See Darby v. N.Y. Times Co., No. 07-12-00193-CV, 2014 Tex.App. LEXIS 2197, at *17-18 (Tex. App.-Amarillo Feb. 26, 2014, pet. denied) (mem. op.) (stating that "[o]ne acts recklessly when his statements are 'made with a high degree of awareness of probable falsity' or when the 'defamer entertained serious doubts that his declaration was true'"). Consequently, ...


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