Appeal from the 61st District Court Harris County, Texas
Trial Court Case No. 2018-46488
consists of Chief Justice Radack and Justices Keyes and
V. KEYES JUSTICE
Andert Robins appeals the denial of his motion, filed
pursuant to the Texas Citizen's Participation Act (TCPA),
dismiss the Commission for Lawyer Discipline's petition
alleging Robins engaged in professional
misconduct. 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.
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
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.
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."
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
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.
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 . . . .
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."
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
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.
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."
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
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.
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.
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."
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.
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."
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
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.
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.
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.
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.
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.
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.
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."
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.
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
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