McIntyre v. Commission for Lawyer Discipline

Click here for the full text of this decision FACTS:Frank W. McIntyre represented Elizabeth Zedaran in a post-divorce-decree proceeding against her ex-husband James Infringer. Back when the divorce petition was pending, Infringer was asked to estimate the couple’s 1999 federal income taxes and to deposit that amount into the registry of the court, which he did. The trial court signed the final decree in the Zedaran/Infringer divorce in December 2000. That decree awarded Infringer “[t]he sum of $34,239.00 held in the registry of the 303rd Judicial District Court of Dallas County, Texas, subject to the use as described in”Federal Income Tax’ as set forth herein below.” The “Federal Income Tax” section of the decree stated in part: “IT IS ORDERED AND DECREED that JAMES INFRINGER and ELIZABETH ZEDARAN shall file a joint tax return for the calendar year 1999. IT IS FURTHER ORDERED that JAMES INFRINGER shall be solely responsible for all federal income tax liabilities of the parties for the calendar year 1999, and shall timely pay any deficiencies, assessments, penalties, or interest due thereon and shall indemnify and hold ELIZABETH ZEDARAN and her property harmless therefrom. IT IS FURTHER ORDERED that JAMES INFRINGER shall pay the parties’ 1999 federal income tax liability from the funds held in the registry of the Court awarded to JAMES INFRINGER herein above. IT IS FURTHER ORDERED that in the event the parties’ 1999 federal income tax liability is less than $34,239.00, JAMES INFRINGER shall pay to ELIZABETH ZEDARAN one-half (1/2) of any and all funds remaining after payment of the parties’ 1999 federal income tax liability. “IT IS ORDERED AND DECREED that a Certified Public Accountant shall prepare the parties’ 1999 income tax return. “IT IS ORDERED AND DECREED that each party shall furnish such information to the other party as is requested to prepare the 1999 joint federal income tax return within fifteen (15) days of receipt of written request for the information. “IT IS ORDERED AND DECREED that both parties shall cooperate in the preparation of a joint tax return for 1999. Both parties are ORDERED to provide the information to a preparer within ten days of any request for the information.” The funds in the registry of the court were not transferred to Infringer, and the taxes remained unpaid for years. According to McIntyre’s testimony, Zedaran hired him in March or April 2003 to “enforce certain aspects of the decree” and also to “obtain some modifications to that divorce decree.” After reviewing Zedaran’s file, McIntyre decided to first address the issue of the couple’s unpaid 1999 income taxes. He stated: “[O]ne of the first things I did after reading through the file, getting acquainted with the file, is, I was looking for any one issue, any issues we could get out of the way quick. And getting the taxes paid appeared to be pretty easy because the divorce decree said, James Infringer shall pay the taxes. Elizabeth and James Infringer shall file a joint tax return and have a joint tax return prepared by an accountant and they are to both sign and file it. “The money that was in the registry of the Court is to be used to pay part of it. Then, there was, obviously the divorce decree itself was silent as to, you know, the timing of paying any deficit balance, okay. But the implication of the language in that decree was that, we get the money out of the registry of the Court, we get the signed tax returns, and we get James Infringer’s check for the balance of the taxes, pack it all up, send it to the IRS. Issue over, okay.” To address the issue of the unpaid taxes, McIntyre contacted Reyburn Anderson, Infringer’s counsel. The order they agreed to submit was signed by the court on May 23, 2003, and stated: “The Clerk is ordered to issue a check made payable to the United States Treasury Department in the amount of twenty eight thousand two hundred and forty seven dollars and thirty eight cents ($28,247.38) out of funds held in the registry of the court. The check should reflect that it is for payment of the 1999 income taxes for Elizabeth Zedaran and James Infringer. The check is to be delivered to Frank McIntyre, counsel for Elizabeth Zedaran. Frank McIntyre is ordered to forward the check to the United States Treasury Department along with all such documentation as is required to show that it is for payment of the 1999 income taxes of Elizabeth Zedaran and James Infringer.” At the bottom of that order there is a notation indicating that the registrar issued the check on June 11, 2003. McIntyre testified that on June 20, 2003, he sent a letter to Anderson stating, “I have the check from the Clerk of the Court in the amount of $28,247.38. Please send me a copy of the 1999 tax return with your client’s signature, along with his check for the balance due after applying the check I have in hand; and I will send everything to the IRS.” After that, according to McIntyre, “the other side refused to send [him] the check” and did not send him a copy of the tax return he requested. McIntyre testified that he did not forward the check to the IRS, because he “felt at that time that what [he] had in [his] possession was only one of the three necessary items.” Infringer testified that he discovered the check had not been sent to the IRS, because his debit card was declined. When he called his bank, he was told that “the IRS had taken all the money out of [his] account.” Infringer then called the IRS and was told that the couple’s outstanding principal tax liability at that point was $57,666, and with interest and penalties, “it was now at about eighty- five or $90,000.” The IRS agreed to “hold any legal actions” until Infringer and Zedaran resolved their dispute about the outstanding tax liability. Infringer testified that a joint tax return was prepared and that he sent it to Zedaran. Infringer also testified that it was his position that his obligation to pay the couple’s 1999 taxes “was limited to the funds that were in the court registry.” Infringer sent two letters to McIntyre, one on Oct. 13, 2003, and another on Feb. 13, 2004, in which he informed McIntyre that because of McIntyre’s refusal to send the check to the IRS, Infringer would file a grievance with the State Bar of Texas. In his first letter, Infringer also informed McIntyre that he sent Zedaran a joint tax return for her signature and asked McIntyre to include Infringer’s and Zedaran’s Social Security numbers when forwarding the check to the IRS. In his second letter, Infringer gave McIntyre a deadline of Feb. 20, 2004. On Feb. 24, 2004, McIntyre sent a letter to Anderson in which he acknowledged receipt of Infringer’s second letter and proposed to address the impasse concerning payment of the 1999 taxes by returning the check to the court and having two new checks issued to Infringer and Zedaran: “I have recently received correspondence directly from your client. As you know, I am not permitted to communicate directly with him without your consent. Furthermore, I would prefer not to. Nevertheless, his letter raises an issue that needs to be addressed. “Last summer we entered into an agreed order under which I was to take charge of a check issued by the Registry of the Court made payable to the IRS in the approximate amount of $28,000. The check was to be forwarded to the IRS along with signed tax returns and your client’s check for the balance of the amount due under the joint tax return [which] the Court ordered your client to pay under the Final Decree of Divorce entered in the above referenced matter. Your client’s failure to pay those taxes when they originally came due has resulted in such substantial additional taxes and penalties that it is not reasonable to now request my client to share in those taxes and penalties. My client has protected herself by filing a separate tax return for the year or years involved. Although she has filed the separate return, she still owes taxes based on the separate income. “Since your client is apparently unwilling to pay the taxes he was ordered to pay and the continuing accrual of additional taxes and penalties harms both our clients, I propose that I simply return the check to the registry of the court and have the trustee issue new checks to each of our clients. The amount of the new checks will be exactly one half the amount of the original check. “If this proposal is agreeable to your client, please indicate your agreement by signing this letter in the signature block below.” Infringer filed a complaint with the Commission for Lawyer Discipline in March 2004. Five months later, Zedaran filed a motion to amend the agreed order, informing the court that the check had not been forwarded to the IRS, because “Infringer breached the [parties'] agreement by refusing to provide McIntyre a copy of the signed tax return or the check for the balance of the taxes due.” On Nov. 16, 2004, the commission filed a disciplinary petition against McIntyre, in which it identified Infringer as the complainant, recited the language of the May 23, 2003, agreed order, and accused McIntyre of violating Texas Disciplinary Rules of Professional Conduct 1.01(b)(2), 1.14(b) and 3.04(d). McIntyre’s disciplinary proceeding was tried to a jury. The jury answered “no” to the question of whether McIntyre violated Texas Disciplinary Rule of Professional Conduct 1.01(b)(2), but answered “yes” to the questions of whether McIntyre violated Texas Disciplinary Rules of Professional Conduct 1.14(b) and 3.04(d). The trial court conducted a sanctions hearing under Texas Rule of Disciplinary Procedure 3.10, “in which the court heard evidence concerning McIntyre’s past disciplinary proceedings in addition to further testimony about his conduct concerning the check.” At the conclusion of that hearing, the court found that McIntyre committed professional misconduct as defined by Texas Rule of Disciplinary Procedure 1.06 and ordered that McIntyre be immediately disbarred. McIntyre filed a motion for judgment notwithstanding the verdict, which the trial court denied. An appeal followed. HOLDING:Affirmed. In his first issue, McIntyre asked the court whether he had “a duty to forward the check to the IRS without his client’s consent, without”all such documentation as is required to show that it is for payment of the 1999 income taxes of Elizabeth Zedaran and James Infringer,’ and while the [May 23, 2003] Order was the subject of open dispute between the parties affected by it.” The court interpreted this as a legal-sufficiency challenge, with McIntyre arguing that the trial court erred in denying McIntyre’s motion for judgment notwithstanding the verdict (JNOV). A JNOV is proper when a directed verdict would have been proper, the court stated. In a legal-sufficiency review, the court stated that it must look at all of the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. Looking at it with that perspective, the court noted that the evidence included the agreed order itself and the testimony of two judges that they would have expected, based on the language of the order, for the check to be forwarded. Thus, the court held that legally sufficient evidence supported the finding that McIntyre had a duty to forward the check to the IRS. In his seventh issue, McIntyre argued that the trial court erred, because it did not allow him to read Comment 3 to Rule 1.14 to the jury. That comment states: “Third parties, such as client’s creditors, may have just claims against funds or other property in a lawyer’s custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly, may refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party.” McIntyre, the court stated, did not demonstrate that the comment was controlling on a material issue, because it was undisputed that McIntyre’s client did not ask him to turn the check over to her. Consequently, the court concluded that the trial court did not abuse its discretion by refusing to let McIntyre read Comment 3. In his second issue, McIntyre also asked the court whether the U.S. Treasury Department and the IRS are third persons within the meaning of Rule 1.14(b), thus giving rise to a duty by McIntyre to notify them of the check or the money in the registry of the court while there was still an ongoing dispute over the 1999 tax returns of Zedaran and Infringer. The court found that McIntyre did not preserve this issue for appellate review. In his third issue, McIntyre contended that the jury charge was incomplete as it related to the following question the trial court submitted to the jury: “Do you find that Frank W. McIntyre knowingly disobeyed a ruling of a tribunal when he failed to forward the $28,247.38 check drawn from the registry of the court, to the United States Treasury Department for payment of Infringer and Z[e]daran’s IRS tax bill under Texas Disciplinary Rule of Professional Conduct 3.04(d)?” But the court found that McIntyre’s requested questions were not in substantially correct wording, as required by Texas Rule of Civil Procedure 278. In his sixth issue, McIntyre argued that the trial court erred, because it refused to submit the instruction to the jury that “McIntyre was permitted to hold the IRS check until all good faith disputes relating to the delivery of the check were resolved either by agreement of the parties or by further order of the court.” The court disagreed that this was a proper instruction, because McIntyre presented no evidence that the instruction properly stated the law. Finally, in his eighth issue, McIntyre argued that because he presented expert testimony to support his defense, and the commission did not present any rebuttal expert testimony, his expert’s testimony was uncontroverted and thus the trial court could not have found that McIntyre violated any disciplinary rules. But the court found no authority that rebuttal expert testimony is required in a disciplinary proceeding against a lawyer. OPINION:Lang-Miers, J.; Morris, Francis and Lang-Miers, JJ.