Rockport solo Steve Fischer and League City solo Trey Apffel will face off in a runoff for State Bar of Texas’ president-elect. [See "Historic Runoff for State Bar President-Elect."]
Runoff campaigning ends May 8, with voting beginning the next day. The initial president-elect campaign involved a number of complaints, revealed in 764 pages of records that the State Bar of Texas released under the Texas Public Information Act.
Those records show numerous exchanges regarding this year’s election between Fischer and former State Bar President Bob Black — far more than between either of the other two candidates and Black.
"I was hoping for a fun campaign where I could present my views. . . . I can see what is coming — a bitter hostile election replete with public attacks and litigation," wrote Fischer in a Feb. 15 email to Black, co-chairman of the State Bar’s Nominations and Elections Subcommittee.
Fischer wrote that it wasn’t what he wanted, "but when you dismiss all my concerns you place me in a corner."
After Fischer wrote to Black that the other two candidates were attending a local bar meeting before the official start of campaigning, Black responded on Feb. 8 that the candidates, Apffel and Larry Hicks, had permission to attend.
Black wrote, "It is indeed ironic that you would make such allegations given the all out campaign you have been running for months. You have been able to do that — without any sanction whatsoever from the Bar — because you are not officially a candidate. Now, you complain about being treated differently than the official candidates."
League City solo
According to a review of those emails, Apffel lodged two complaints, and Hicks’ campaign manager emailed one. Through February and March, Fischer sent many emails repeatedly raising three complaints and expressing disagreement with some election rules.
"It’s been a bumpy couple of months," says Black, managing shareholder in MehaffyWeber in Beaumont.
He adds, "We’re all human beings. The candidates are under a great deal of stress. I have been in their shoes myself, and I understand their passion. . . . If at any time irritation is shown, I apologize for that. I have nothing but respect for our three candidates."
But Fischer says that he thinks there’s a "clear pattern of bias in this election." He says State Bar officials editorialized in a webcast and a Texas Bar Journal article about comments he made in the article and webcast; they are allowing a State Bar director to campaign negatively against him; they spent money to recruit the two official State Bar candidates but they haven’t reimbursed Fischer for the costs of gathering petition signatures; and State Bar President Buck Files used the State Bar email system for a message praising the other candidates but not Fischer.
"This campaign is radicalizing me in a sense because of the way the Bar officers are acting," says Fischer, a Rockport solo.
Responding to Fischer’s allegations, Black says that the Nominations and Elections Subcommittee plays no role in Texas Bar Journal articles. He says during a webcast debate between the three candidates, Fischer made a "significant misstatement" that the State Bar imposes and sets the amount of the attorney occupation tax; Black says the Legislature controls the tax and says, "I felt compelled to correct it, and I did."
Regarding the allegation about negative campaigning, Black says, "It is not our place to prevent them from exercising their First Amendment rights or to censor them, unless they’re doing it as a member of the board of directors in that capacity, which was not done."
He says Fischer has sent in records for $9,386 in costs and mileage while he gathered signatures, but there’s nothing in State Bar rules that allows the reimbursement. He notes the State Bar spent just under $3,000 to pay for 15 Nominations and Elections Subcommittee members to travel to Austin to interview the State Bar’s potential president-elect candidates.
Apffel and Hicks both say they aren’t aware of the correspondence between Fischer and Black and that State Bar staffers responded to their own campaign questions quickly and thoroughly.
"I felt they were always very responsive, very accurate, very timely, and they have a system in place that has worked well for a long time. It worked well again, as far as my experience was concerned," says Apffel.
Hicks, president and managing shareholder in Hicks & Llamas in El Paso, says, "My strong belief and feeling about this whole process is: This should be a dignified race just because of the nature of the office. It’s a race that should be run by strict adherence to the rules."
There’s no formal process for receiving and addressing complaints. Black says when he’s notified of a complaint, he consults with State Bar staffers to get information about the election rules. He sometimes asks the State Bar’s general counsel for a legal opinion about the applicability of the rules.
Black then responds to the complaint, and he says, normally, he simply educates a candidate about the election rules. A candidate may appeal his decision to the whole Nominations and Elections Subcommittee, he says.
The emails show candidates sent some complaints and questions to Black, and some went to other State Bar staffers who helped administer the campaign. Many times, the candidates just asked questions about campaign materials or procedures. But some emails describe others’ activities and ask how the rules apply, or the messages allege violations of the rules.
"It is normal and customary for there to be issues discussed during the election process. That has been a heightened number this year, with very strong feelings," says Black.
On March 3, Apffel wrote an email asking how the rules applied to a video by Hicks and a blog by Fischer.
The rules say the Nominations and Elections Subcommittee must approve a candidate’s campaign brochure, and Internet materials must contain the same information that’s been approved.
Ray Cantu, a State Bar staff liaison to the subcommittee, responded to Apffel by email that Hicks’ video only contained the brochure information, and he couldn’t find a blog by Fischer.
On March 4, Apffel wrote that Hicks’ Facebook page had "likes" from legal organizations.
The rules say candidates can’t accept endorsements and they must monitor their Facebook pages to comply with the rules.
On March 5, State Bar communications division director Holly Priestner responded that she would ask Hicks’ team to remove the "likes."
Apffel responded, "Sorry to be a pain. Moving on!!"
He says in an interview he wanted clarification about whether the rules would permit him to do the same things as the other candidates.
A Feb. 21 email from Hicks’ campaign manager, Hicks & Llamas associate Kim Norvell of El Paso, said Fischer used Facebook to discuss a campaign issue.
Norvell declines comment.
Larry Hicks, president
and managing shareholder
in Hicks & Llamas
in El Paso
Hicks says in an interview he’s unaware of the email, and he purposely declined to look at other candidates’ Internet materials so he wouldn’t get upset or feel the need to retaliate.
Black says in an interview that he responded to the complaint by "educating and counseling" Fischer about the election rules.
In February and March, Fischer sent many emails raising three complaints. He wrote that Apffel and Hicks attended a local bar association meeting before March 1, the start of official campaigning. He wrote that a mass email by State Bar president Buck Files called Apffel and Hicks "honorable," without a similar statement about Fischer. He also alleged that Jo Ann Merica, a State Bar director, made negative comments about him in a letter, telephone call and on Facebook.
Black says Fischer’s complaint about the Files email was "wholly without merit" because Files sent it in January, and "Steve was not a candidate at the time."
Files could not be reached for comment.
Regarding Fischer’s complaint about Merica’s alleged statements, Black says she made them in a "personal capacity" and "has a First Amendment right to express them."
Merica, special counsel with Sedgwick in Austin, declines comment. But she emailed an April 15 letter addressing Fischer’s allegations that she had campaigned negatively against him, which is addressed to Black and copied to the State Bar’s board of directors.
Merica wrote, "The Rules regarding the President-Elect campaign allow a member of the Board to express concerns about the statements and actions of any candidate who seeks to be the spokesperson for the lawyers of the State."
An additional complaint that was aimed at Fischer dealt with media coverage. Black says he can’t remember who made that complaint. On Feb. 28, emails between Black and Fischer discussed complaints over articles that quoted Fischer in a Victoria newspaper and Texas Lawyer.
"We have said repeatedly that we are going to enforce the rules and we are," Black wrote. He listed election rules that prohibit a candidate from soliciting a publication but say that if a publication initiates an article, the candidate must ask for equal time for all candidates.
Fischer responded, "The Bar might find it has bit off more than it can chew. You guys can send out releases without my name but I can’t talk to the press."
Black says in an interview that complaints about news articles are common and the State Bar responds by educating candidates about the rules.
Fischer says he disagrees with how the Bar handled his complaints, but he sees a benefit from this year’s campaign: He thinks that lawyers are more involved in this election than the past.
"I’m really happy so many people are enthusiastic," he says.
For three years, Texas Lawyer has requested records about complaints in the president-elect election. There were no substantial complaints in documents the State Bar released in 2011 or 2012.
But this year, in response to a March 26 TPIA request from Texas Lawyer, the State Bar released 764 pages of records that show numerous complaints.
The March 26 request sought three categories of records pertaining to the State Bar president-elect election: claims of rule violations; correspondence about the election between candidates and members of the Nominations and Elections Subcommittee; and all other correspondence about the election sent or received by any State Bar officer, employee, or agent. (Texas Lawyer later clarified that the meaning of "agent" included board members, committee members and volunteers.)
As the response process got underway, it hit a snag. State Bar legal counsel John Sirman says when he received the request, he asked for all State Bar board members to respond. He explains that all the members of the Nominations and Elections Subcommittee are also board members, so their records would encompass all the requested documents.
He says one board member — Fischer — "never sent us anything."
"As far as I know, he’s the only one who said, ‘I can’t comply with this,’ " Sirman says.
Fischer says he can no longer access many of the estimated 15,000 emails he sent to lawyers because he deleted emails to fix a problem with his inbox not accepting new messages. But he says he sent the State Bar several variations of "form letters" that he’d email to lawyers when he was gathering signatures.
After the State Bar noted that the responsive documents would be voluminous and would not be ready until mid-May, Texas Lawyer narrowed its request on April 10, asking only for the claims of rule violations and the correspondence between candidates and subcommittee members. The State Bar’s first batch of responsive documents was the 764 pages of records.
Also on April 10, Texas Lawyer sent a new TPIA request asking for the remaining correspondence about the election. The State Bar is slated to release those records May 3, after Texas Lawyer‘s presstime.