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Sarfo v. Commission for Lawyer Discipline

Court of Appeals of Texas, Third District, Austin

February 22, 2018

Samuel Adjei Sarfo, Appellant
v.
Commission for Lawyer Discipline, Appellee

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. D-1-GN-15-005898, HONORABLE JOSE A. LOPEZ, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Pemberton and Goodwin.

          MEMORANDUM OPINION

          Melissa Goodwin, Justice.

         Samuel Adjei Sarfo appeals from the district court's judgment of partially probated suspension from the practice of law in the State of Texas. Sarfo challenges the legal and factual sufficiency of the evidence to support the jury's findings that he violated the Texas Rules of Professional Conduct, see Tex. Disciplinary Rules Prof. Conduct R. 1.01(a), (b)(2), reprinted in Tex. Gov't Code, tit. 2, subtit. G, app. A, and the award of attorney's fees. He also challenges the jury charge, the sanctions imposed, and the extension of his active suspension. For the following reasons, we affirm the district court's judgment.

         Background

         The Commission for Lawyer Discipline (the Commission) filed a disciplinary action against Sarfo alleging professional misconduct based on a complaint that was filed against him by opposing counsel in a suit arising from an automobile accident (the complainant). See Tex. Rules Disciplinary P. R. 1.06(W), reprinted in Tex. Gov't Code, tit. 2, app. A-1 (defining "professional misconduct" to include acts or omissions by attorney "that violate one or more of the Texas Disciplinary Rules of Professional Conduct"). The complainant represented the plaintiff in that case, and Sarfo represented the defendant.

         According to the complainant, she was in settlement discussions with Sarfo's client's automobile liability insurance carrier when she filed suit on behalf of her client because the deadline for the applicable statute of limitations was approaching. She filed the suit a few days before the deadline and served Sarfo's client a few days later. She also served discovery requests on Sarfo's client with the original petition, including requests for admissions and interrogatories. Sarfo filed an answer on behalf of his client, raising the statute of limitations as an affirmative defense and asserting that the suit was "frivolous as it [was] patently based on a contrived or concocted injury and narrative by plaintiff." He, however, did not serve the answer on the complainant, answer the discovery requests, file a response to a pending motion for partial summary judgment, or otherwise respond to the complainant's communication attempts, and he did not provide notice of the suit to his client's automobile liability insurance carrier. Sarfo had represented his client in two other suits involving the same automobile accident and, in those suits, he had provided notice to his client's automobile liability insurance carrier.

         During the early stages of the automobile accident suit, the complainant sent Sarfo a letter with a copy of National Union Fire Insurance Company v. Crocker, 246 S.W.3d 603 (Tex. 2008). In the letter, she warned Sarfo that "[t]he failure to seek a defense may provide [his client's automobile liability insurance carrier] with grounds to avoid payment of any judgment that [the plaintiff] may take against [Sarfo's] client" and that Sarfo was "run[ning] a significant risk of voiding his [client's] coverage and making [his client] personally liable for any judgment against him." Approximately a week after sending this letter to Sarfo, the complainant sent a letter to Sarfo's client's automobile liability insurance carrier, seeking its intervention in the suit. The insurance carrier eventually informed Sarfo that it was "taking up the case and defending it." The insurance carrier retained counsel, the insurance carrier's counsel was substituted for Sarfo, and the insurance carrier ultimately paid Sarfo's former client's policy limits of $30, 000.

         After the automobile accident suit concluded, the complainant filed a grievance against Sarfo, and the Commission filed the disciplinary action that is the subject of this appeal. The Commission alleged that Sarfo had accepted or continued legal employment in the automobile accident suit which he knew or should have known was beyond his competence. See Tex. Disciplinary Rules Prof. Conduct R. 1.01(a) (generally prohibiting lawyer from "accept[ing] or continu[ing] employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence"). The Commission also alleged that Sarfo frequently failed to carry out completely the obligations that he owed to his client in the automobile accident suit. See id. R. 1.01(b)(2) ("In representing a client, a lawyer shall not: . . . frequently fail to carry out completely the obligations that the lawyer owes to a client or clients.").

         The Commission's allegations of professional misconduct were tried to a jury. The complainant testified about her interactions with Sarfo, his conduct during the pendency of the automobile accident suit, and her reasons for filing a complaint against Sarfo. She testified that she would not have filed a complaint "about the first bad thing, " but she saw a "pattern of neglect, incompetence, and bad behavior." It was her opinion that Sarfo was incompetent, explaining:

The adversarial system works well when both parties are represented competently, assertively, but within the bounds of ethical conduct, appropriate trial strategy, and, you know, we all have our own differences of how we approach cases, that's not wrong. But to take-as a trial strategy, that you're going to completely ignore discovery responses, that you're going to completely ignore efforts to cooperate, you're going to completely ignore established case law that says you're hurting your client if you take a particular trial approach, that to me was wrong.

         Because Sarfo's actions were intentional, she testified about her concerns of the possible consequences to his client of his trial strategy of ignoring the discovery requests-i.e., deemed admissions and waived objections-and refusing to notify his client's automobile liability insurance carrier of the suit-i.e., jeopardizing liability coverage.[1] She also testified about an adverse ruling to Sarfo's client by the trial court after the insurance carrier's counsel was substituted to represent Sarfo's client. Counsel moved to designate a responsible third party, but it was too late to do so at that point, due in part to Sarfo's failure to respond to discovery requests. She further confirmed that Sarfo's client's insurance carrier ultimately settled the suit by paying 100% of policy limits.

         The admitted exhibits included pleadings and correspondence in the automobile accident suit and the two other cases concerning the automobile accident in which Sarfo had represented the same client, copies of continuing legal education courses that Sarfo had attended, and his answer to the complaint before the Commission. In the answer, Sarfo admitted that the automobile accident suit was filed before the expiration of the statute of limitations but explained that he asserted the defense of the statute of limitations because it was his "professional opinion that the suit might be effectively barred by the statute of limitations." He admitted that he "completely ignored" the letter from the complainant warning him of the risks of not notifying his client's insurance carrier concerning the automobile accident suit. He explained that the letter was "both offensive and condescending." He also admitted that he did not respond to the discovery requests or the complainant's phone calls. "As a procedural weapon, " he explained that he "decided to ignore the phone calls and requests and thereby refused to commit further resources into what [he] had already determined to be a frivolous and vexatious lawsuit based on non-existent, contrived and concocted narrative."

         After the district court denied Sarfo's motion for directed verdict and both sides closed, the district court submitted two questions to the jury, tracking the statutory language of subsections (a) and (b)(2) of disciplinary rule 1.01:

Did Samuel Adjei Sarfo accept, or continue, employment in a legal matter for [his client] which he knew or should have known was beyond his competence?
In representing [his client], did Samuel Adjei Sarfo frequently fail to carry out completely the obligations that he owed to [his client]?

See Tex. Disciplinary Rules Prof. Conduct R. 1.01(a), (b)(2). The district court also provided definitions to the jury of "competence, " "know, " and "should know."[2] The jury answered "yes" to both questions. As the jury rose to be excused, Sarfo called out, "stupid people." The trial judge then admonished him, stating that "[i]t was extremely unprofessional, classless and uncalled for, for [Sarfo] to giggle or laugh as [the judge was] speaking to the jury in regards to their verdict." Sarfo replied that "[he could] laugh anytime he like[d], Your Honor" and that he was "always free to express [his] emotions." Sarfo thereafter filed a motion for judgment notwithstanding the verdict, which the district court denied.

         The district court proceeded to a sanctions hearing. The Commission called its attorney who participated as the second chair during the jury trial and Sarfo by deposition. In his deposition, Sarfo testified that it was "good strategy" to ignore discovery in the absence of a motion to compel and that he had ignored discovery in other cases. The Commission's second chair attorney testified that she observed Sarfo turn toward the jurors and say "stupid people" when they were filing out of the courtroom, call the Commission's lead trial attorney a "stupid, ugly bitch, " and spit at the lead trial attorney twice. The Commission's lead trial attorney also testified about the Commission's incurred attorney's fees and expenses.

         The Commission's exhibits admitted during the sanctions hearing included orders and motions in other cases in which Sarfo participated and correspondence between Sarfo and the Commission's lead trial attorney during the pendency of the disciplinary action, including an email with an attached letter from Sarfo to the lead trial attorney. In the email, Sarfo stated that he would "be happy to read [the letter] aloud in open court." In the letter, Sarfo called the lead trial attorney "the worst lawyer [he had] ever seen, " a "diminutive and unskilled attorney, " "clueless, " and "a complete disgrace and a stigma to a learned profession and a noble calling." He concluded the letter by wishing her "[g]ood luck" in her "very miserable and fruitless life."

         Sarfo also disparaged and was disrespectful to the assigned judge and a court reporter during the pendency of the disciplinary action. For example, Sarfo wrote to the court reporter, "You will do better next time if you choose not to conflate your duty to transcribe coherently with your penchant to include superfluous extra segmentals and patent errors merely to satiate your whims and caprices." Sarfo's statements to the assigned judge included telling the judge that the judge was prejudiced and that he had made "ridiculous" lectures and rulings.

         Following the sanctions hearing, the district court entered a judgment of partially probated suspension. The court found that: (i) Sarfo's acts, omissions, and conduct constituted violations of the Texas Disciplinary Rules of Professional Conduct; (ii) as to each violation, Sarfo had committed professional misconduct; and (iii) the appropriate sanction was suspension from the practice of law for a period of one year, with fifteen days of active suspension and the remaining days probated upon specified terms and conditions. The court also ordered Sarfo to pay "reasonable and necessary attorney's fees and expenses of litigation in the amount of $15, 000" as an additional sanction. Sarfo filed a notice of appeal and a motion to suspend enforcement of the judgment, which the district court denied.[3]

         Analysis

         Sufficiency of the Evidence to Support the Jury Findings

         In his first two issues, Sarfo challenges the sufficiency of the evidence to support the jury's findings of disciplinary rule violations. The jury found that Sarfo accepted or continued employment in a legal matter for his client which he knew or should have known was beyond his competence; and that, in representing his client, he frequently failed to carry out completely the obligations that he owed to his client.

         Standard of Review

         When an appellant challenges the legal sufficiency of the evidence to support a finding on which he did not have the burden of proof at trial, as is the case here, the appellant must demonstrate on appeal that: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. See City of Kellerv. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (citing Robert W. Calvert, "No Evidence" & "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, ...


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