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In re Possible Discipline of Ray

United States District Court, N.D. Texas, Fort Worth Division

July 15, 2019

In re Possible Discipline of Ryan Eugene Ray

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYDE UNITED STATES DISTRICT JUDGE.

         This miscellaneous action was created by a severance from No. 4:14-CV-182-A of disciplinary proceedings against Ryan Eugene Ray ("Ray"), a member of the Bar of this court, who has been the attorney for the plaintiff, Jose Luis Hernandez ("Hernandez"), in such case.

         So far as the court can determine, Ray's participation for years as the attorney for Hernandez in No. 4:14-CV-182-A are his only appearances before the undersigned in any action on the undersigned's docket. The court has concluded that Ray's conduct over the years in that one case has demonstrated that Ray is subject" to significant discipline under the authority of Local Civil Rule LR 83.8(b)(1), (3), and (4), which provide as follows:

         (b) Grounds for Disciplinary Action. A presiding judge, after giving opportunity to show cause to the contrary, may take any appropriate disciplinary action against a member of the bar for:

(1) conduct unbecoming a member of the bar;
(3) unethical behavior;
(4) inability to conduct litigation properly[.] By an order issued in No. 4:14-CV-182-A on May 20, 2019, the court provided a summary of the facts that have caused the court to conclude that Ray is subject to discipline pursuant to the above-quoted three sections of Rule LR 83, 8(b). Doc. 50.[1]A rather-detailed description of Ray's misconduct in No. 4:14-CV-182-A prior to September 1, 2017, was provided in the memorandum opinion and order the court issued in that case on that date. Doc. 19. The order part of that document, id. at 51, granted the Rule 60(b)(3) motion of defendant, Results Staffing, Inc. ("Results"), asking that the court grant Results relief from the ruling of the United States Court of Appeals for the Fifth Circuit, reported as Hernandez v. Results Staffing, Incorporated, 677 Fed.Appx. 902 (5th Cir. 2 017) ("Hernandez I"), reversing and rendering in favor of Hernandez the judgment this court had rendered, after trial, in favor of Results against Hernandez. Id. The Fifth Circuit's Hernandez I reversal and rendition was predicated in its entirety on the Fifth Circuit's conclusion that the trial record established without dispute that a trip Hernandez made to the hospital emergency room the morning of July 15, 2013, was for treatment of an injury he suffered over the preceding weekend while on duty for the United States military. Doc. 19 at 3-6. Had the trial record not been false by reason of the misconduct and fraud of Ray and his client, it would have disclosed that Hernandez's trip to the emergency room was for an entirely different reason.

         The impropriety of Ray's conduct through the date of this court's September 1, 2017 memorandum opinion and order was the subject of a second appeal by Hernandez to the Fifth Circuit. That appeal resulted in an opinion and judgment of the Fifth Circuit affirming each of the rulings made by this court on September 1, 2017. Id. See Hernandez v. Results Staffing, Inc., 907 F.3d 354 (5th Cir, 2018) ("Hernandez II").

         The court has concluded that the appropriate discipline to be imposed on Ray for the court to properly address his conduct unbecoming a member of the Bar, his unethical behavior, and his inability to conduct litigation properly, would be to remove his name from the role of attorneys authorized to practice law before this court. The imposition of such a sanction will not come as a surprise to Ray. He anticipated it in a motion he filed with the Fifth Circuit in its No. 17-11201, seeking a stay of the Fifth Circuit's mandate in its decision affirming the rulings made by this court on September 1, 2017. Ray predicted in that motion that he "could face significant repercussions from sanctions proceedings, including threats to his law license and the ability to practice law before the Northern District of Texas." Appellant's Mot. for Stay of Mandate, 11/14/2018 Dkt. Entry on Docket of the 5th Cir, in its No. 17-11201, at 10. His prediction of loss of the ability to practice before this court was an accurate assessment of the discipline that this court could and should impose on him for his repeated unethical and fraudulent conduct, which this court described in the September 1, 2017 order and that the Fifth Circuit concluded was serious enough to justify this court's decision to grant the relief Results sought by its Rule 60 motion, ordering that Results was relieved of the Fifth Circuit's Hernandez I judgment of reversal and remand of this court's judgment in favor of Results. Hernandez II, 907 F.3d at 365-66.

         The specifics of Ray's conduct in violation of the Texas rules governing the conduct of attorneys are provided at pages 5-14 of the May 20, 2019 order. Doc. 50 at 5-14. Recent questionable conduct of Ray is described in this court's March 20, 2019 memorandum opinion and order, doc. 47, which discusses and rules on a motion Ray filed for Hernandez post-Fifth Circuit affirmance of the September 1, 2017 rulings, in the form of a motion for reconsideration of such rulings pursuant to the authority of Rule 54(b), doc, 25. The court noted in that memorandum opinion and order that the court questioned the good faith and honesty of Hernandez and Ray in requiring counsel for Results and the court to devote their time and attention to such a motion. Doc. 47 at 3-4, 14-15.

         Returning to Ray's pre-September 1, 2017 conduct, the court reiterates findings and conclusions the court expressed in the September 1, 2017 memorandum opinion:

         1. In discussing the grounds of Results's Rule 60 motion, this court explained:

As grounds for the motion, defendant alleged that after the Fifth Circuit issued its January 30, 2017 opinion rendering judgment for plaintiff against defendant on plaintiff's reemployment claim, and during the course of discovery related to the issues remanded to this court for resolution, defendant discovered evidence that established that one or more of the factual bases of the Fifth Circuit's opinion were incorrect and that the trial evidence upon which the Fifth Circuit relied in concluding that those facts were undisputed was the product of misrepresentation, fraud, and misconduct by plaintiff and his counsel.
Defendant learned that plaintiff and his wife had given false testimony at trial concerning plaintiff's service-related back condition and his reason for going to the emergency room for medical assistance the morning of July 15, 2013, and that plaintiff and his counsel had in their possession in advance of the trial hospital records, which should have been, but were not, disclosed to defendant before the trial, that showed the true reason for his trip to the emergency room the morning of July 15, 2013.

Doc. 19 at 7-8.

         2. Based on the evidence the court received in support of Results's Rule 60 motion, the court made the following findings:

The court is satisfied, and finds, that plaintiff's visit to the emergency room the morning of July 15, 2013, was not for care or treatment of an aggravation of a back condition he suffered while on military duty over the preceding weekend but, instead, was for treatment of a severe headache, probably a migraine in character, that had its onset after he arrived home the morning of July 15, 2013, and that the low back pain he mentioned upon his hospital admission as an associated symptom was not the cause of his visit to the hospital but was a non-disabling chronic back pain that he had been suffering for years. The court further finds that to whatever extent plaintiff and his wife gave testimony inconsistent with the findings expressed in the preceding sentence, their testimony was intentionally false, and was given by them in order to disadvantage and mislead the defendant in its trial preparation and presentation, and that it ultimately misled the Fifth Circuit in plaintiff's appeal from this court's judgment of dismissal.
The court is further satisfied, and finds, that plaintiff's counsel had, and knew the contents of, the records of plaintiff's visit to the emergency room the morning of July 15, 2013, many days before the trial commenced on May 26, 2015, and that he did not take appropriate steps to supplement an incomplete and misleading response plaintiff had made to defendant's previously served discovery request on plaintiff seeking production of all documents related to plaintiff's visit to the emergency room; and, the court is satisfied, and finds, that counsel for plaintiff did not disclose those records to counsel for defendant in advance of the trial for the purpose of misleading defendant and its counsel into believing that plaintiff's July 15, 2013 visit to the emergency room was for care and treatment of an aggravation of a back condition that he suffered over the weekend while performing military duties.
The court further finds that the misrepresentations made by plaintiff and his wife at the trial concerning plaintiff's reason for seeking emergency room care the morning of July 15, 2013, and the withholding of the emergency room records by plaintiff's counsel from defendant's trial counsel before and during that trial, put defendant at an unfair disadvantage in defending itself at the trial, put defendant's appeal counsel at an unfair disadvantage in his presentations to the Fifth Circuit and in answering questions the members of the Fifth Circuit posed to him during oral argument,' and put the Fifth Circuit at an unfair disadvantage in evaluating what the true facts were concerning the July 15, 2013 visit to the emergency room.

Id. at 13-15.

         3. The court made the following additional findings in the September 1, 2017 order:

[T]he court finds by clear and convincing evidence that plaintiff, often through his attorney, engaged in fraud, misrepresentation, and misconduct in plaintiff's presentations, verbally and in writing, to the court in pretrial matters, during the trial, and in his presentations to the Fifth Circuit in support of his appeal from this court's dismissal of his claims. As a consequence, the trial court record was false in that it failed to disclose plaintiff's true reasons for his visit to the hospital emergency room the morning of July 15, 2013, and the Fifth Circuit was presented with a false record and false arguments by plaintiff, through his counsel, on that subject.

Id. at 3 5; and:

The court finds by clear and convincing evidence that if defendant had been provided the emergency room records plaintiff, through his counsel, had in his possession before the trial commenced, and if plaintiff and his wife had testified truthfully at trial, defendant would have been able to more fully and fairly present its defense to plaintiff's claim that during the day of July 15, 2013, he was convalescing from an aggravation he suffered over the preceding weekend of a preexisting back condition. If the truth concerning plaintiff's reason for admission to the hospital had been disclosed during or before the trial, defendant would have been in a position to effectively argue that plaintiff's failure to be at work the morning of July 15, 2013, was not the result of any military-related injury, or aggravation of an injury, and that during the day of July 15, 2013, plaintiff was not convalescing from such an injury or aggravation.
As it was, defendant was in a position that its counsel had no choice but to assume the correctness of the false presentations of plaintiff that his emergency room visit, and his absence from work on July 15, 2013, were caused by such an injury or aggravation. Had the truth been disclosed at trial, defendant's appellate counsel would have been in a position to respond to Circuit Judge Elrod's question, supra at 5 n.2, that there was evidence that directly rebutted plaintiff's claim that he went to the hospital the morning of July 15, 2013, for treatment for an aggravated injury to his back; and, if the truth had been disclosed at the trial, the Fifth Circuit would not have issued an opinion indicating that it was undisputed that the convalescence plaintiff was experiencing during the day on July 15, 2013, was related to an aggravation he suffered over the weekend of a chronic back problem.

Id. at 35-3 7; and:

         4. Other pertinent findings of the court expressed in the September 1, 2017 order were the following:

[P]laintiff and his counsel engaged in misconduct in this case that "completely sabotaged the federal trial machinery, precluding the 'fair contest' which the Federal Rules of Civil Procedure are intended to assure." [Rozier v. Ford Motor Co., 573 F.2d 1332, 1346 (5th Cir. 1978).] And, as in Rozier," [i]nstead of serving as a vehicle for ascertainment of the truth, the trial in this case accomplished little more than the adjudication of a hypothetical fact situation imposed by [plaintiff's] selective disclosure of information," id.

Id. at 4 6; and:

The court finds by clear and convincing evidence that plaintiff and his counsel pursued an unconscionable plan or scheme which was designed to improperly influence this court in its decision, and then the Fifth Circuit in its decision. See, id., at 1338.
The court has found from clear and convincing evidence that the judgment of the Fifth Circuit was obtained through fraud, misrepresentation, or other misconduct on the part of plaintiff and his counsel. Their inappropriate conduct led to the trial record that caused the Fifth Circuit to make the ruling it did in favor of plaintiff. The court finds from clear and convincing evidence that the conduct of plaintiff and his counsel prevented defendant from fully and fairly presenting its defense at trial, ...

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