A Travis County district court has dismissed a wrongful-termination suit in which a lawyer alleged the State Bar of Texas “fired” him from his job as a senior planning attorney because of his disability. Judge Tim Sulak of the 343rd District Court dismissed the suit with prejudice Oct. 25, noting that plaintiff M. Montgomery Miller and the State Bar each had to pay their own costs and attorneys’ fees. The move came after the parties filed an agreed motion to dismiss on Oct. 17 that said they “resolved all of their disputes and settled all matters.” State Bar General Counsel Don Jones writes in an email that the case settled as of Sept. 30. “Both parties agree and acknowledge that nothing contained in the settlement agreement constitutes an admission by either party of any violation of law or of wrongdoing. The case was settled for just under $50,000,” Jones writes. “As part of the settlement, Mr. Miller was reinstated with no compensation and resigned as of Sept. 30, 2011,” he writes. In the April 6 original petition in M. Montgomery Miller v. State Bar of Texas , Miller alleged he was a 15-year employee of the Bar until Sept. 21, 2010, when he was fired from his position with the Continuing Legal Education Department. Miller alleged he suffers from chronic foot pain caused by several medical conditions, noting that two weeks after he emailed his supervisor and raised the medical issue, he was “fired because of his disability.” Miller claimed his termination violated the Texas Commission on Human Rights Act (TCHRA) and requested reinstatement to his former position, among other things. In an original answer on April 27, the State Bar denied all the allegations. Among other things, the Bar claimed its actions toward the plaintiff were in compliance with the TCHRA and “were taken in good faith and for lawful, legitimate and nondiscriminatory reasons.” Miller’s lawyer, Philip Durst , a partner in Deats Durst Owen & Levy in Austin, declines comment about the settlement. Miller didn’t return a telephone call seeking comment.
Fees Please
The attorneys representing Roger Clemens are pressing their demand in Washington that the government be forced to pay thousands of dollars in legal fees tied to the botched prosecution of the former baseball star this summer. The Justice Department is opposed to the demand for fees, saying the presiding trial judge, Reggie Walton , does not have the power to force the government to pay Clemens’ criminal-defense team. Prosecutors said recently that the trial mistakes did not amount to misconduct. Clemens’ attorneys, including Houston’s Rusty Hardin Jr. , said in papers filed Nov. 15 in Washington federal district court that Walton has the inherent authority to sanction the government for violations of court orders and abuse of the judicial process. Clemens’ lawyers have not specified the dollar amount they are seeking. Prosecutors have apologized for government mistakes that led to Walton’s declaration of a mistrial in July. The government’s legal team presented evidence that Walton had earlier not authorized. Clemens is charged with perjury and other crimes for allegedly lying to Congress about his reported use of performance enhancing drugs. Walton’s power to force the government to pay part of Clemens’ defense “does not vanish just because the offending party is the federal government,” Hardin said in the court filing. Hardin and Cooley partner Michael Attanasio said the prosecution’s claim that Walton is powerless is “illusory.” Clemens’ lawyers reject the government’s position that sovereign immunity — the notion that the government is generally immune from liability — provides a “flat bar” to the assessment of attorneys’ fees. Hardin called the government’s argument “radical.” Such a rule, he said, “would be contrary to sound public policy.” “If the doctrine of sovereign immunity truly does preempt a court’s inherent judicial power in any criminal proceeding, then defendants would be forced to endure situations where prosecutors could violate pretrial orders, commit discovery abuses, maliciously run up defense fees, and engage in any number of other imaginable contemptible acts without recourse,” Hardin said in court papers. Hardin urged Walton to rule in favor of “fundamental fairness, not the government’s crabbed interpretation of the powers of an Article III judge.” Walton has not indicated when he will decide the legal fee dispute. The Clemens retrial is scheduled for April.
