San Antonio attorney Andrew Toscano has received a probated two-year suspension of his law license for failing to report his former boss' professional misconduct in a products liability suit in which plaintiffs sought $2 billion.

Judge Betty Ann Caton of the 296th District Court in Collin County, Texas, who presided over Commission for Lawyer Discipline v. Toscano by special assignment, signed an agreed final judgment in the case on July 31.

According to the agreed final judgment, Toscano violated Texas Disciplinary Rule of Professional Conduct 8.03(a) by failing to inform the appropriate disciplinary authority of Robert Kugle's violations of the disciplinary conduct rules while representing the plaintiffs in Fabila, et al. v. DaimlerChrysler Corp., et al.

Toscano is the second former associate of the now defunct Kugle Law Firm in San Antonio to receive a probated suspension in connection with Kugle's actions in Fabila, which stemmed from a four-fatality, one-car rollover in Mexico in 1996.

In December 2005, 155th District Judge Dan R. Beck of Fayette County, who presided over Commission for Lawyer Discipline v. Wilson by special assignment, signed the agreed final judgment that assessed Robert "Trey" Wilson III a probated two-year suspension for failing to report Kugle's violations of the disciplinary rules in Fabila.

"It's a slap on the wrist for what the 4th Court of Appeals has characterized as an 'egregious example' of the worst kind of abuse of the judicial system," Roy Spezia, lead counsel for DaimlerChrysler and a senior partner in Clark, Thomas & Winters in Austin, Texas, says of the probated suspensions.

In June, the American Tort Reform Association erected a billboard near the Bexar County Courthouse in downtown San Antonio in protest of what the group saw as Wilson's light discipline.

Toscano, now an associate with Gene Toscano Inc. in San Antonio, did not return two telephone calls seeking comment on the probated suspension before press time on August 3. John Pinckney III, Toscano's attorney and a partner in Strasburger & Price in San Antonio, declines comment.

"It speaks for itself," Pinckney says of the agreed final judgment.

Wilson, a San Antonio solo, also declines comment.

In 2000, then-224th District Judge David Peeples dismissed Fabila and assessed $1 million in sanctions against Kugle, Toscano and Wilson after finding that they knowingly and intentionally engaged in fraud in the suit. Peeples also ordered the clerk of his court to send a copy of the final judgment and sanctions order in Fabila to the State Bar of Texas.

San Antonio's 4th Court, sitting en banc, affirmed Peeples' judgment and sanctions order in Fabila in a 4-2 decision in 2002.

According to the 4th Court's majority opinion, written by Justice Karen Angelini, an investigator hired by the Kugle firm found no problems with the steering column of the Dodge Neon involved in the Fabilas' fatal accident, but a second investigator subsequently found that the decoupler in the steering column was separated. In January 2000, Angelini wrote, the first investigator's report was sent anonymously to DaimlerChrysler's attorney.

The Bar disbarred Kugle in 2003. The disbarment was the result of default. According to the order of disbarment, Kugle had moved to Mexico and did not file responsive pleadings in the disciplinary proceedings.

But a six-member Bar investigatory committee determined in 2001 that Wilson and Toscano should receive private reprimands for their part in Fabila.

"For whatever reason, that investigatory panel thought that was appropriate [discipline] for that matter," says Mark White, chairman of the Commission for Lawyer Discipline.

White, a partner in Amarillo, Texas' Sprouse Shrader Smith, says the private reprimands had the effect of a district court's judgment and could not be appealed by the commission.

In July, Wilson and Toscano waived confidentiality with regard to the 2001 disciplinary action, allowing White to discuss the case, according to the Bar.

DaimlerChrysler and North Star Dodge, two of the defendants in Fabila, filed separate grievances against Wilson and Toscano in 2003.

White says Wilson and Toscano raised res judicata defenses, alleging that the commission could not prosecute them for alleged violations related to the original disciplinary proceeding. The commission negotiated agreed judgments with the two lawyers, because there was a risk that, in Wilson's case, the Board of Disciplinary Appeals and, in Toscano's case, a court of appeals, would find that the commission could not sanction them, White says.

If a similar situation arose today, new disciplinary rules that the Texas Legislature approved in 2003 give the Office of the Chief Disciplinary Counsel more authority earlier in the disciplinary process, White says. The revised rules eliminated the role of investigatory panels in such proceedings.

Wilson, Toscano and Kugle still face legal issues stemming from the products liability suit. In 2003, DaimlerChrysler and North Star Dodge filed a civil suit, DaimlerChrysler, et al. v. Kugle, et al., in San Antonio' 150th District Court, alleging fraud against the three lawyers and the Kugle firm in connection with Fabila. Spezia says the suit is still pending.

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