Robert S. 'Bob' Bennett, attorney and owner of Houston's Bob Bennett & Associates
Robert S. ‘Bob’ Bennett, attorney and owner of Houston’s Bob Bennett & Associates (Clifton Brantley)

More than 1,000 Texas lawyers have signed a request of amici curiae characterizing the recent disbarment of Robert S. Bennett of Houston an “extreme result” that is “unfair” and one that “does not foster the respect and confidence in our disciplinary system that are essential within the Texas bar.”

Gaines West, a lawyer representing Bennett in an appeal of his disbarment, provided a copy of the request, which asks that 289th District Judge Carmen Kelsey of San Antonio “attempt to resolve this case by mediation or other final resolution.” Kelsey signed a judgment in March disbarring Bennett in a disciplinary lawsuit filed by the Commission for Lawyer Discipline.

According to a list provided by West, a partner in West, Webb, Allbritton & Gentry of College Station, 1,005 Texas lawyers had signed the request as of May 13. The request was to be filed on May 14 in Bennett’s disciplinary lawsuit and with the commission, Gaines wrote in an email. He also wrote that Bennett would not be available for comment.

“We submit that the extreme result in this case is unfair and does not foster the respect and confidence in our disciplinary system that are essential within the Texas bar for the continued effective functioning of the system,” the amici write.

“We therefore respectfully request the court’s assistance in attempting to resolve this matter by mediation or other final resolution in a manner that is fair and just for all concerned, so as to avoid recourse to costly and time-consuming appellate remedies.”

The amici write that Kelsey imposed disbarment even though the commission sought a lesser remedy and that the judge also “refused to consider or admit into evidence substantial expert testimony that no rule violation has occurred.”

In a request for comment about Bennett’s request for mediation, Claire Mock, public affairs administrator for the chief disciplinary counsel, provided this statement: “The commission does not make public comment on active matters currently pending in court.”

In a May 6 request to set a hearing on motion for a new trial, Bennett asks Kelsey to order the commission into mediation with him to discuss a “compromise resolution” short of disbarment.

He alleges in the request that Texas Rule of Disciplinary Procedure 3.08 provides that it “shall” be the policy of the commission to participate in alternative resolution procedures “where feasible.”

“Given this court’s judgment, the commission had indicated that it is unable to participate in mediation or otherwise discuss a resolution short of the disbarment that has been ordered. Thus, the court may want to consider ordering the parties to mediation, or otherwise discussing a compromise resolution.”

Disbarment

On March 21 Kelsey, a “specially assigned judge,” signed a final judgment of disbarment in a disciplinary suit that the commission had filed against Bennett in 2013. After finding that Bennett violated Texas Disciplinary Rules of Professional Conduct 1.15(d) and 3.02, Kelsey found that “the appropriate sanction is disbarment,” effective March 21.

Rule 1.15(d) covers a lawyer’s responsibilities when terminating representation, and Rule 3.02 prohibits a lawyer from taking a position that unreasonably increases the costs or other burdens of the litigation or unreasonably delays resolution.

The disciplinary petition stemmed from a fee dispute arising from Bennett’s representation of Gary O. Land in a breach of contract suit and a potential federal civil rights action.

In May 8 findings of fact and conclusions of law, Kelsey found that upon termination of Bennett’s representation of Land, Bennett “failed to refund an advance payment of fee that had not been earned,” took positions that unreasonably increased the cost or other burdens of the case and took positions that unreasonably delayed the resolution of the matter.

In his April 22 motion for new trial, Bennett alleges that the commission “completely failed” to prove its case and failed to call a single expert or factual witness to support its allegations; he did not violate any disciplinary rules; and the commission did not seek a sanction of disbarment, but the judge “improperly” imposed disbarment.

“A new trial should be granted because the evidence is factually and legally insufficient to support the trial court’s judgment, and the trial court abused its discretion in finding disbarment was an appropriate sanction. No rule was violated, and that aside, no evidence supports such a severe sanction,” Bennett alleges.

“This court found that defendant should be disbarred solely on the fact that defendant pursued an appeal from an arbitration award granted against him in a dispute between himself and a former client. This court somehow found it unfair that the former client did not get his money right away but rather defendant (as is his right to do so) took an appeal from the award,” Bennett alleges in the motion.

Bennett alleges that Rule 3.02 does not apply because it is “designed to protect a client’s adversary, not the client from undue delay.” He alleges that he did not violate Rule 1.15 because “no funds or property were improperly held” by him.

He also alleges that Kelsey erred by not allowing him to provide expert testimony “that would aid the court in understanding the evidence and the intent of the rules.” He alleges that Kelsey agreed with the commission, which alleged that expert testimony is not necessary in bench trials.

“While the exclusion of these witnesses at trial worked to the petitioner’s advantage, the repeated expression of unfamiliarity and confusion by the court about the rules and procedures will likely result in this case being remanded back to the court for trial, which could have easily been prevented by the appropriate use of experts at trial,” Bennett alleges in the motion.

Nick Oweyssi, a Houston solo who represents Land, said Bennett has paid the money he owed Land—approximately $30,000—which Kelsey ordered in the judgment in the disciplinary suit. A grievance Land filed against Bennett led to Commission for Lawyer Discipline v. Robert S. Bennett.

Oweyssi said he’s not surprised to hear that Bennett is asking for mediation in the disciplinary suit.

“That’s what he always tries to do: muddy the waters, confuse the issues,” Oweyssi said.