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Robins v. Commission for Lawyer Discipline

Court of Appeals of Texas, First District

January 9, 2020


          On Appeal from the 61st District Court Harris County, Texas Trial Court Case No. 2018-46488

          Panel consists of Chief Justice Radack and Justices Keyes and Landau.



         Richard Andert Robins appeals the denial of his motion, filed pursuant to the Texas Citizen's Participation Act (TCPA), [1] to dismiss the Commission for Lawyer Discipline's petition alleging Robins engaged in professional misconduct.[2] In four issues, Robins argues that the trial court erred in denying his motion because (1) the TCPA applies to disciplinary proceedings; (2) the Commission's disciplinary action against him is based on, related to, or in response to TCPA-protected communications; (3) the Commission failed to come forward with sufficient evidence to establish a prima facie case to support its claims; and (3) he established defenses to the Commission's claims.

         We affirm.


         In July 2012, Cindy Crisp sold certain items of personal property to estate liquidator John Sauls for a total price of $6, 893.21. Sauls sent Crisp payment in the form of two checks, both of which bounced.

         By handwritten letter dated October 3, 2013, Crisp asked attorney Robins to help her recover "the value of checks plus interest and attorney/court costs" from Sauls, and she stated that she "understands the attorney fees will not be of normal value and that Rich Robins is doing this to help her to honor the checks that were written [non-sufficient funds] and fees and costs." The record contains a check from Crisp to Robins for $350, which Robins states was payment for court costs.[3]

         Crisp suffered from multiple sclerosis, and according to Robins, her health steadily declined until communication with her stopped altogether. Despite having fallen out of contact with Crisp for over two years and having been unable to reach her or to find anything through internet research indicating whether she had died or was still alive, Robins filed suit on behalf of Crisp on November 17, 2016, to collect payment from Sauls for the bounced checks. As he explained in later pleadings, he did so "thinking that [Crisp was] hopefully still alive somewhere, albeit in a potentially very compromised state of health." The petition Robins filed on behalf of Crisp stated that Crisp "would diplomatically settle this case through her legal counsel for $14, 338 if no further wrangling is necessary to finally conclude this unfortunate matter."

         Not long after filing suit, Sauls's attorney, Kurt Noell, offered to settle the case for the amount of the debt plus $2, 500 for loss of use and attorney's fees. Robins-despite knowing he could not contact his client or even confirm that she was indeed alive-sent Noell an email rejecting the offer, explaining that "[a]lthough Plaintiff Crisp has always believed that she deserves more, I can assure you that this case would be fully nonsuited with prejudice within 24 hours of our timely receiving the liquid funds contemplated & quantified in the abovementioned settlement demand."

         About two months later, in March 2017, Noell served discovery on Robins. Around the same time, Robins located Crisp's two sons, Austen and Jon Clinkenbeard, who informed Robins that their mother had indeed died in 2015. An email from Robins to the Clinkenbeard brothers confirms that Robins had been made aware of Crisp's death by March 15, 2017, stating that "[i]t is unfortunate that we do not have Cindy with us any longer." Having made contact with the Clinkenbeard brothers, Robins began to correspond with them to urge them to become involved in the litigation.

         In one of his emails to the Clinkenbeard brothers, dated June 21, 2017, Robins remarked,

I want to get you guys the biggest award realistically obtainable, but I need to balance that with how law school's painfully expensive. At nearly 10% annually compounded interest, you can imagine how excruciating that pain is especially for someone who already repaid the principal of his student loans long ago . . . but who still owes considerably more because the greedy feds charge such a high premium for student loans . . . .

         And in another email, dated September 26, 2017, Robins stated, "billing Sauls for my several dozen (and growing) hours of attorney time . . . naturally remains a priority for me. The (interest-accruing) cost of law school helps make that understandable." He added, "If you know of anyone who would rather pay my attorney's fess instead of Sauls though (such as [Crisp's] insurance policy that might apply?), by all means I'm all ears."

         Trial was set for April 3, 2017, but Robins failed to appear, and the trial court dismissed the case for want of prosecution. Robins filed "Plaintiff Cindy Crisp's Verified Motion to Reinstate," claiming he was unaware of the setting, and the trial court granted the motion, which, notably, did not mention that Crisp had died over two years earlier.

         As the case proceeded, Robins was unable to respond to Sauls's discovery requests because he had no living client to provide the answers. He did, however, according to Noell's affidavit, discuss with Noell potential dates for Crisp's deposition-offering not a hint that she had long since died.

         When Robins failed to respond to Sauls's discovery requests, Sauls filed a motion for sanctions, which the trial court set for a hearing on June 29, 2017. A few days before the hearing was to occur, Robins sent an email to the Clinkenbeard brothers proposing that they execute retainer agreements permitting him to represent them instead of Crisp. Robins urged the brothers to sign the agreements, opining that he "would not be surprised if the jury awards [them] in excess of $63k."

         In the email, Robins also acknowledged that neither the court nor opposing counsel was aware of Crisp's death, and he stated that this might allow him to avoid monetary sanctions in the upcoming hearing: "Sauls, his lawyer and the court presumably don't yet know that Cindy has passed away, but if we could get everything nevertheless taken care of beforehand so that I can submit stuff to opposing counsel by the early part of next week, then that would help me try to avoid Sauls' winning a monetary sanction this Thursday."

         On June 27, 2017, two days before the sanctions hearing was to occur, Robins emailed the court administrator asking whether "there a desired protocol for a suggestion of death of a plaintiff" and stating that Crisp "is reportedly no longer with us . . . . whether opposing counsel knows it or not" and that "her son wants to fill in for her." The email did not indicate that Crisp had been dead for years.

         It appears from the record that in response to the suggestion of Crisp's death, the trial court cancelled the June 29 hearing and instead held a telephonic hearing, during which Robins "represented that Cindy Crisp was probably dead." The trial court directed Robins to produce proof of Crisp's death.

         Several things happened as a result of the telephonic hearing. On July 4, 2017, Robins obtained from the Clinkenbeard brothers a signed retainer agreement, purporting to authorize Robins to represent Crisp through Austen. Importantly, the agreement stated that Robins's fees would be paid by Sauls. It also stated that Robins "has full settlement authority to settle for any amount for Austen and also for any amount for his own attorney's fees, neither of which needs to come at the expense of the other."

         The hearing also prompted Noell to demand that Robins produce Crisp's death certificate and any evidence showing whether her estate had been probated. On July 17, Robins obtained Crisp's death certificate, which he emailed to Noell on July 28. But Robins did not provide evidence regarding probate of Crisp's estate.

         As a result, on September 1, Sauls filed a motion to show authority pursuant to Texas Rule of Civil Procedure 12 asking that Robins be "ordered to appear to produce documentation that, in fact, Cindy Crisp was alive at the time of the filing of this suit and that she had authorized the filing of this suit." See Tex. R. Civ. P. 12 (stating that party may file motion to require challenged attorney to appear before trial court to show authority to act on behalf of client). The trial court granted the motion and ordered Robins to "appear and show that at the time of the filing of the suit, he had authority from Cindy Crisp to file this suit, that Cindy Crisp is now deceased, and that a probate proceeding of some type has been filed so that any interest in her estate could be pursued by an heir." Robins filed a response, stating that he had emailed Noell Crisp's death certificate and that "a probate court has never been involved with Cindy Crisp's passing or with her estate, and one need not be."

         On September 17, the trial court held a hearing, which Austen Clinkenbeard attended. At the hearing, Robins stated that he had not filed a probate proceeding because he had no experience in probate court and was trying to save money for his client. The trial court expressed concern that Robins had filed the lawsuit "with a client that was deceased" and without the authority of her heirs. When the trial court commented that it was "strange" that Robins had only recently informed Noell that Crisp had died two years earlier, Robins stated, "Well, we were trying to keep this within the settlement range because [Noell] was almost there." The following exchange then occurred:

Court: It sounds like you were being dishonest with the opposing party.
Robins: Dishonest as opposed to saying, "Hey, I think my client is dead."
Court: All right. I'm done arguing with you gentlemen. You can leave.
Robins: I have no incentive to be dishonest.
Noell: You mean the [money] -
Court: But you were dishonest. I'm not questioning your incentive. Okay. Just leave.

         At the close of the hearing, the trial court ordered Robins to submit additional briefing regarding his authority under Rule 12 to represent Austen Clinkenbeard. The trial court stated that it would strike Crisp's pleadings if Robins failed to do so within ten days.

         In an affidavit submitted in response to Robins's TCPA motion to dismiss, Austen stated that, on the morning of the hearing, Robins "began panicking because he had not brought the necessary documents and he pleaded that I print out over a hundred pages of documents at my hotel." Robins "appeared to be completely unprepared," and Austen was "bothered" by what he observed at the hearing. Robins "ranted and raved and the judge admonished his behavior several times," and "the judge seemed to be mad at [Robins] about not promptly telling the court that [Crisp] had died in 2015." Austen further observed Robins "say on the record at a hearing in court that he had no probate experience and had only filed the suit in county court to save money." After the hearing, Austen "realized there might be more going on in the case" than Robins had disclosed.

         In preparing the briefing ordered by the trial court, Robins drafted affidavits for both Clinkenbeard brothers stating that no probate proceedings were necessary for Crisp's estate because she had no debt. According to both Austen's and Jon's affidavits submitted in response to Robins's motion to dismiss, Robins pressured them to sign the affidavits of heirship. In an email dated September 27, 2017, Jon informed Robins that he and Austen would not sign the affidavits, explaining that Crisp did "have debt to the nursing home she was in at the time of her passing and . . . to medicaid/care." Jon also stated that after hearing from Austen that "the judge was upset about possible 'intentional ambiguity' around our mother's death via documentation," he and Austen had "no desire to make that subject any murkier." Jon closed the email by asking Robins for a copy of their file. But Robins did not oblige.

         Later the same day, the Clinkenbeard brothers sent Robins another email, stating that they were "not comfortable swearing to such a bold claim" that Crisp had no pending claims against her or any assets. They also expressed concern that the exact date Robins had learned of Crisp's death "was clearly such a sensitive issue with the judge last week," and they stated that they "no longer wish to pursue this matter" on their mother's behalf, because, while their "motivations have not changed . . . circumstances and feelings about this case certainly have." The email concluded with another request to see the client file.

         The next day, September 28, Austen and Jon spoke with Robins over the telephone. They discussed the case generally and the affidavits Robins wanted them to sign. According to both Austen's and Jon's affidavits, Robins was "very rude and insulting to us and to our late mother, who he said had been a burden to him and the state." The brothers' sentiments are reflected in an email they sent to Robins later that day:

I'm very upset with how that call went. Neither Austen or I have ever done anything to impede this trial nor have we claimed we wouldn't help. We simply can't sign the affidavits as-is . . . . I don't think that's any reason for threats and insinuating that our mother was and is a burden to you and the state." The email reiterated the brothers' request to see their file.

         Robins responded with a scathing email accusing the Clinkenbeard brothers of defrauding and betraying him and threatening to sue them for breach of the retainer agreement. He wrote, "I cannot recall when I last witnessed such a display of solipsistic callousness by two privileged young men such as yourselves." As to their requests to see their file, which he described as harassment, Robins stated that although the brothers were in no position to "further mistreat" him or to "demand repeated compliance," their "questions and requests have been adequately addressed in prior correspondence."

         That same day, September 28, 2017, Robins filed a brief entitled "Plaintiffs' Counsel's Brief Supporting Proceeding to Trial Without an Otherwise Unnecessary Estate Administration," in which he argued that the case could proceed with Austen Clinkenbeard as plaintiff, and he averred-even though the Clinkenbeard brothers had told him that they believed Crisp did have outstanding debt-that no probate proceedings were necessary for Crisp's estate. Specifically, Robins stated that Sauls "has provided no evidence that any estate administration is pending involving Cindy Crisp, or that pending lawsuits or active judgments exist against Cindy Crisp anywhere" and that "Attorney Rich Robins has not found any such evidence in his searches for them, either." Robins also amended the petition to add the allegation that no probate proceedings were necessary for Crisp's estate.

         On October 20, 2017, the Clinkenbeard brothers sent Robins an email terminating their relationship, and, once again, demanding their file. The email stated:

Although my brother and I both appreciate the effort you've put into this case, we would like to immediately terminate our legal relationship with you, the attorney-client contract we have with you, and officially revoke the power of attorney enumerated in our representation agreement.
After my assistance and travels to the court in Tyler, and witness of your courtroom performance, after repeated dismissals of conversations for potential settlement options, after repeated disregard for written requests for our case file, and after the deterioration of your communications with ...

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