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Bill Sanders can’t afford Mary McKnight’s six-figure legal bill based on what he makes as a land surveyor. So Sanders did carpentry work on McKnight’s Dallas law office to help defray the fees he incurred in his divorce proceedings, McKnight says. To help pay his $100,000 legal bill, Sanders performed $25,000 worth of work on the 1890s Victorian house McKnight uses as an office, including building a staircase and remodeling the kitchen and a bathroom, McKnight says. And that arrangement, according to Dallas’ 5th Court of Appeals, was enough to get McKnight disqualified from representing Sanders at trial. The 5th Court’s Feb. 13 mandamus decision In Re: Joyce Elizabeth Sanders troubles some family law attorneys who say the opinion could kill a long tradition of bartering between lawyers and low-income clients. Now, the Texas Supreme Court is considering whether to grant review in the case, which McKnight appealed on March 15. If the 5th Court opinion stands, it will have a detrimental effect on solos and small-firm lawyers who sometimes accept services in exchange for representing clients who have no other way to pay them, McKnight says. “Any person could be arbitrarily challenged by the other side simply because they want to be difficult,” McKnight says. Because the divorce proceeding is pending, Charles Quaid, a partner in Dallas’ Quaid & Quaid who represents Sanders’ wife Joyce Elizabeth Sanders, declines to comment, except to say that the 5th Court ruled correctly and he believes the Supreme Court will affirm the decision. Bill and Joyce Sanders are involved in a bitter divorce that involves the custody of their young daughter. Months before their case was set for trial, Joyce Sanders moved to disqualify McKnight, of the Law Office of Mary McKnight, asserting that she made herself an essential fact witness in the case by acting as Bill Sanders’ employer, according to the 5th Court opinion. Joyce Sanders alleged that McKnight could provide testimony on issues of child custody and support, the 5th Court wrote. McKnight believes the disqualification motion was a tactical move meant to knock her off the case and that any testimony she could provide is irrelevant. Associate Judge Christine Collie and 302nd District Judge Frances Harris agreed with McKnight in two separate hearings last year and denied the disqualification motion. Joyce Sanders appealed to the 5th Court. In an appellate brief to the 5th Court, Joyce Sanders argued that McKnight’s testimony is relevant in the divorce proceeding on the issue of the “schedule and availability of a father obligated to two jobs to be present to fulfill the role of full time or primary possession parent.” But according to the 5th Court’s 2-1 memorandum opinion in Sanders, McKnight ran afoul of Rule 3.08 of the Texas Rules of Professional Conduct by entering into a verbal bartering agreement with Sanders. Rule 3.08 states that “a lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness to establish an essential fact on behalf of the lawyer’s client.” “We conclude the trial court abused its discretion in denying the motion to disqualify McKnight from acting as trial counsel for Bill,” wrote 5th Court Justice Michael J. O’Neill, who was joined by Justice Douglas Lang. “McKnight’s testimony as an employer relating to Bill’s abilities to care for the minor child or pay child support … leads us to conclude a fact-finder may be confused or misled by McKnight’s dual roles,” O’Neill wrote, adding that McKnight could continue to represent Bill Sanders in pretrial matters. But in a dissenting opinion, Justice Mark Whittington wrote that the record supported the trial court’s determination that any testimony McKnight could provide regarding Bill Sanders’ work for her would be “de minimis.” “Disciplinary Rule of Professional Conduct 3.08 should not be used as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice because reducing the rule to such a use would subvert its purpose,” Whittington wrote. “That is precisely what happened in this case.” COMMON OCCURRENCE Toby Goodman, a family law attorney and partner in Arlington’s Goodman Clark & Beckman, has accepted a variety of goods and services in exchange for representing clients who couldn’t otherwise afford his legal fees. Goodman says clients have given him jewelry, a shotgun, a rose bush, and installation of a sprinkler system and a telephone system in exchange for legal services. It may be an unusual way to get paid, but it is payment, Goodman says. “The interesting question is what’s the difference in paying the lawyer in cash and paying � in goods” and services? asks Goodman, who also is a Republican member of the Texas House of Representatives. “The lawyer is already a witness in what they’ve been paid and what’s owed. So what’s the difference? I don’t know where the 5th Court of Appeals came up with their logic on it.” Sometimes low-income clients want to repay their lawyers any way they can, Goodman says, even if it’s a small gift. That happened in a case in which Goodman represented a family pro bono in a landlord-tenant dispute. “They bake us cakes and cookies and bring it up to us at Christmas,” Goodman says. “Is that a fee? Am I disqualified because of that? That goes on all of the time.” But Luke Gunnstaks, a family law attorney at Dallas’ Gunnstaks Law Office, says he always stays away from bartering arrangements with clients because of the potential for disqualification. However he acknowledges that the practice is common among family law practitioners. “I think they were kind of stretching it in that case,” Gunnstaks says of the 5th Court in Sanders. “But … that fear of that happening is why I don’t do it. “I like to keep an arm’s-length professional relationship with my clients. I don’t necessarily want to be holding their valuables or receiving their sentimental valuables,” Gunnstaks adds. “If they come to my house, and they’re doing services in my yard, they know more than they need to know.” Charles “Chuck” Herring Jr., a partner in Austin’s Herring & Irwin who represents clients suing their former lawyers in legal-malpractice suits, says Sanders should make attorneys cautious about entering into bartering arrangements with their clients. But he’s not sure of the reasoning behind the 5th Court’s opinion. “To me it’s not clear why the majority thought the lawyer [McKnight] was necessary to establish an essential fact,” Herring says. “The majority does not recite facts that would seem to lead to that conclusion.” And past Texas Supreme Court decisions such as 1994′s Vaughn v. Walther state that the failure to object to opposing counsel’s representation in a timely manner is the same as waiving the objection. In his dissent in Sanders, Whittington wrote that Joyce Sanders knew about her husband’s handyman work for McKnight nine months before the case was set for trial. Two months before the trial, Joyce Sanders’ attorneys designated McKnight as a witness to set up the disqualification issue, Whittington wrote. “It’s not clear to me why the movant would not have waived disqualification,” Herring says. The Sanders divorce case is set for trial in October. By then, McKnight hopes she’ll be allowed to represent Bill Sanders in front of a jury. And it wouldn’t be wise for the appellate courts to get rid of what has become a tradition in American legal representation — one that was even recognized in Harper Lee’s classic book “To Kill a Mockingbird,” says Linda Eads, a professor who teaches professional responsibility at Southern Methodist University Dedman School of Law. “Atticus Finch took food from people who couldn’t pay him,” Eads says. “This is a time-honored tradition. You have to look at each situation as it is to see if it’s overreaching.”

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