General Litigation Issues
- “Contempt: Special Protections for Texas Lawyers“, by José Guerrero, Esq. and Bob Bennett
“Generally, any act or omission by an attorney or a party that tends to obstruct or interfere with the administration of justice or that impairs the dignity of the court can be grounds for the big “C”.i Moreover, contempt can be classified in several ways, depending on where the contempt occurs, it may be either direct or constructive and regardless of the nature of any underlying legal action from which the contempt arises, it may be either criminal or civil. A direct contempt occurs within the presence of the court and a constructive (or indirect) contempt occurs outside the court’s presence. In Texas, any party to the litigation, or the court, can initiate contempt proceedings to determine whether the direct or constructive behavior constitutes a contempt of court. ” Click the Article’s Title to continue reading [PDF].
- “Mandatory Arbitration Hits Home“, by Bob Bennett, et al. (Reprinted from Texas Lawyer, May 2002)
“Texas and federal courts provide little protection to consumers trapped in arbitration agreements. The recent housing surge in the Lone Star State gave rise to a number of disputes between homeowners and homebuilders. Many homeowners learned, to their chagrin, that during the excitement of signing the contracts for their dream homes, they may have inadvertently signed away the constitutional right to have juries settle complaints against the homebuilders. ” Click the Article’s Title to continue reading [PDF].
- “Foreign Corrupt Practices Act & What Corporate Counsel Should Know“, firm publication
“What Corporate Counsel Should Know: In addition to understanding the summary of the Foreign Corrupt Practices Act given below, corporate counsel must pay heed to the potential conflicts of interest and maintaining the attorney-client privilege. ” Click the Article’s Title to continue reading [PDF].
- “Trial Demonstration: Direct and Cross of Legal Malpractice Expert, State Bar of Texas Expert Witness Course, (2/2002)“, by Bob Bennett
“The Supreme Court’s disciplinary rules are to be treated as statutes. Disciplinary Rule 1.03 imposes a fiduciary duty on attorneys in their relationship with their client: an attorney must act with utmost fairness and in good faith, with a duty to represent his client with undivided loyalty, (which requires a full and fair disclosure of the terms of a proposed settlement ), to preserve a client’s confidences, and to disclose to the client any information that might prevent the fulfillment of these obligations. ” Click the Title to continue reading [PDF].
- “The Small Law Firm & Strategic Alliances“, by Bob Bennett (1996 Houston Bar Association)
“I recommend the following guidelines to solo practitioners and small firms interested in forming strategic alliances.” Click the Article’s Title to continue reading [PDF].
United States Medical Licensing Examination (“USMLE”) – Testing Issues & Irregular Behavior of Medical Students
- “How Best to Respond if the USMLE Program Questions Your Passing Level Scores: Points to Consider“, by Bob Bennett
“The following points may help you decide how to respond to the USMLE Program’s concerns about the validity of the passing level scores if you were involved with Optima University prior to your testing. You may have received a letter from the Secretariat of the United States Medical Licensing Examination which is a joint program of the Federation of State Medical Boards of the U. S., Inc. and the National Board of Medical Examiners. The letter may state that you have the right to have counsel accompany you to the hearing held by the Committee on Score Validity. This may be helpful but counsel should be consulted as soon as you are contacted by USMLE. The following demonstrates how helpful early attorney involvement may be. There are several reasons that based on our recent experience with the Committee that you should consider having an attorney help prepare your presentation and be present with you before the Committee.” Click the Article’s Title to continue reading [PDF].
- When the Gatekeeper Challenges Your Test Scores: The High Stakes & Hefty Burden Examinees Face in Defending Their Scores on the U.S. Medical License Examination, by Sherri Katz and Bob Bennett
“Recent developments have increased scrutiny of examinees’ scores on the USMLE placing many examinees who acted in good faith and with complete propriety in jeopardy of having their scores labeled “indeterminate”2 , which is basically the same thing as invalidated or revoked. The USMLE also has the power to have an examinee’s score reports reflect “irregular behavior”3 , which could mean being barred from future testing, and forcing USMLE examinees to suffer collateral consequences such as delay in licensing, graduation, or participating in a residency program. In addition, recent development now includes a high-stakes copyright infringement lawsuit4 for damages and an injunction, filed by the National Board of Medical Examiners (NBME) and the Federation of State Medical Boards (FSMB) against Optima University, a popular test preparation course provider, its founder, Eihab Mohamed Suliman, and ten John Doe defendants. This lawsuit was filed on February 23, 2009.” Click the Article’s Title to continue reading [PDF].
Medical Licensing & Medical Issues – Texas Medical Board
- “Hippocratic Oath to Include…’And I Shall Attempt to Avoid Prosecution’ “, by Bob Bennett, Sheryl T. Dacso & Jose R. Guerrero, Jr.
“HOUSTON: IN 2003, A FORT WORTH PHYSICIAN WAS INDICTED ON A MURDER CHARGE STEMMING FROM ALLEGATIONS THAT SHE SUFFOCATED A PATIENT. THE ACCUSED, DR. LYDIA GROTTI, WAS WORKING IN the intensive care unit at John Peter Smith Hospital in December 2000 when she allegedly blocked the endotracheal tube of Lettie McGhee, a 64-year-old woman who had gone into cardiac arrest while in the waiting room of the hospital. ” Click the Article’s Title to continue reading [PDF].
- “Texas Medical Board Disciplinary Process“, by Bob Bennett
“Once the investigation is complete, there are different avenues the case could go to. One option is the Board’s disciplinary process review committee (“DPRC”). The committee reviews the investigator’s report and determines if the complaint should be dismissed.” Click the Article’s Title to continue reading [PDF].
Texas Board of Law Examiners (“BOLE”) – Are you good a fit to practice law in Texas?
- Your Hearing Before the Texas Board of Law Examiners: The Top 10 Reasons You Should Have an Attorney, by Bob Bennett and Jared Byrd
“You can find on the Board’s website (www.ble.state.tx.us) the “Information About the Hearing Process” that provides you some platitudinous statements about the Hearing Process. You are advised in this information posting that you have a right to counsel but, “If you prefer to represent yourself, you may do so.” With your hands sweating and your heart pounding, you now have to answer the question whether you as a law student really need a lawyer. Here are some reasons that may help you. We could even call them the Top Ten reasons you need an attorney.” Click the Article’s Title to continue reading [PDF].
“At the hearing, in addition to yourself and hopefully your legal counsel, will be the staff attorney for the Texas, a court reporter and three (3) Panel Members of the Texas Board of Law Examiners. You may have previously elected to have certain witnesses admitted but the hearing remains closed to the general public or it is open. This is the result of you Open Hearing Election that is at the very end of the hearing instructions you received with the letter stating the date your hearing has been set for. Do not overlook this if you want and expect to have witnesses present to speak on your behalf. It is always good if at least one of your recommenders or at least a family member is willing to appear at the hearing to speak in your behalf. This is matter of impression with the Panel; although it may not be possible as in the case of someone from out-of-state seeking admission to the Texas Bar. ” Click the Article’s Title to continue reading [PDF].
- Preparing Your File for a Texas Board of Law Examiners’ Hearing, by Bob Bennett
“Carefully review the applications and the communications from the Texas Board of Law Examiners; compare and know exactly what the Texas Board of Law Examiners are targeting.
Obtain letters of recommendation that not only speak to the good moral character of the Client, but also set forth knowledge of the event(s) and that the event(s) were an aberration, were youthful mistakes of years past, or do not reflect the character of the Client today.” Click the Article’s Title to continue reading [PDF].
“Any Texas law student wishing to apply for admission to the Texas Bar must complete and filed a form entitled the Declaration of Intention to Study Law (“Declaration”) with the Texas Board of Law Examiners (“BLE”).1 The deadlines vary according to when you start law school; however the deadline tends to fall shortly (possibly as quickly as within 6 weeks) of when you begin your law school studies. Check with the Texas Board of Law Examiners for exact deadlines. The website is: www.ble.state.tx.us.” Click the Article’s Title to continue reading [PDF].
- BOLE Doesn’t Appreciate Haste or a Bad Memory, by Bob Bennett
“The Texas Board of Law Examiners tells you that you fail to meet the standards of good moral character and fitness. Is all hope lost in the discretionary purview of the board? Most applicants for admission to the State Bar of Texas will tell you their greatest fear is that they will not do well on the bar examination or, horror of horrors, fail some part of the examination. However, there are those applicants who will tell you there is a worst-scene scenario: The Board of Law Examiners (BOLE) informs you that you fail to meet the standards of good moral character and fitness, and therefore you are not eligible to take the bar examination. Even if you already are licensed in another state or country, you still have to pass muster on the “good moral character and fitness” requirements. Is your Texas legal career over before you’ve begun?” Click the Article’s Title to continue reading [PDF].
The Office of Chief Disciplinary Counsel for the State Bar of Texas (“OCDC”)
Attorney Ethics & Professional Responsibility
- “Cotroneo’s attorney says Marra’s amended grievance will also fail“, by Jerry Deal
“Even the Star indicated that there could be a connection between the evaluation action by Boswell and the amended grievance to the state bar. Re-entering the action — Cotroneo’s attorney Bob Bennett. In a written message, Bennett said Marra’s complaint has added information but the issue remains the same, Cotroneo was not Marra’s attorney. Bennett stated that Marra filed her first complaint on Nov, 3, 2011, a “mere” four days prior to the commencement of her trial for violating the reporting requirements. “It appears that it was filed to be used in the trial to attack the city attorney,” Bennett said. […]” Click the Title to continue reading [Blog: myleadernews.com].
- “A Reminder: Avoiding & Surviving Attorney Ethics Complaints in Texas“, by Romana Sirajuddin & Bob Bennett
“In attempting to avoid grievances, consider using the OCDC’s Attorney Ethics Helpline to answer any questions about an attorney’s ethical obligations to clients, courts, and the public as established by the Texas Disciplinary Rules of Professional Conduct. The Helpline can provide access to rules, verbal ethical opinions, and prior written ethics that will help you make informed decisions about your law practice. Previous written opinions by the Professional Ethics Committee of the Supreme Court (Texas) are also available from the Texas Center for Legal Ethics and Professionalism (www.txethics.org).” Click the Article’s Title to continue reading [PDF].
- “Harriet Miers: Should the Texas State Bar Investigate?“, by Conrad Schulte-Winthrop
“The articles mention statements of the White House insisting that the presidents’ role had been minimal and that it was primarily Harriet Miers’ idea to fire the U.S. attorneys (NYT, March 14, 2007). Bush himself defended the firings but criticized how they were explained to Congress (MSNBC, March 16, 2007). It is also stated that the dismissals took place after President Bush told Attorney General Alberto R. Gonzales in October 2006 that some prosecutors had not energetically pursued voter-fraud investigations, according to a White House spokeswoman (Washington post, March 13, 2007; NYT, March 14, 2007). However, White House officials repeated that Mr. Bush had not called for the removal of any particular U.S. attorney and said there was no evidence that the president had been aware that the Justice Department had initiated a process to generate a list of which prosecutors should lose their jobs (NYT, March 14, 2007) ” Click the Article’s Title to continue reading [PDF].
- “The Texas Attorney Grievance Procedure: Lawyering for a Lawyer with a “Disability”, by Joe Guerrero and Bob Bennett
“When a grievance is filed against a Texas lawyer, it is carefully reviewed by the State Bar of Texas’ Office of Chief Disciplinary Counsel (OCDC) and, within thirty days, a determination will be made as to whether it contains allegations of professional misconduct. When a grievance fails to allege misconduct, it is classified as an “Inquiry” and is dismissed.i A grievance that successfully alleges professional misconduct is classified as a “Complaint,” and the respondent-attorney is given written notice of the alleged acts and/or omissions in the Complaint and any potential violations of the disciplinary rules.ii Upon receipt of such notice, the respondent-attorney must inform the OCDC whether he elects to have the Complaint heard in a district court of proper venue, with or without a jury, or by an Evidentiary Panel of the OCDC.iii The election must be in writing and served upon the OCDC no later than twenty days after receipt of notice. Failure to timely file an election will render the respondent-attorney subject to the Evidentiary Panel, by default.” Click the Article’s Title to continue reading [PDF].
- “Sharing Fees the New-Fashioned Way: How to Get Paid & Avoid Violating Rule 1.04 of the Texas Disciplinary Rules of Professional Conduct When Sharing Fees“, by John Donaleski
“Fee sharing did not always require client consent. And when one attorney forwarded a client to another attorney, there was often no expectation of further involvement. The referring attorney in certain significant personal injury cases could expect a payment for the referral. Millions of dollars changed hands this way. The practice was very common with certain attorneys who had enormous television advertising budgets and handled cases in a wholesale manner” Click the Article’s Title to continue reading [PDF].
- “NIFONG Texas Style“, by Bob Bennett
“As Kathleen Parker, columnist for The Washington Post Writers Group has pointedly suggested, we now can add a “new verb to our American lexicon – adding ‘to Nifong’ to those moments which “call for activities that do not require elaboration, such as “Bobbitt,” “Bork,” and “Lewinsky.” We can “now ‘Nifong’ someone when we want to trump up criminal charges based on flimsy evidence allegedly for political purposes.” How does this assessment of Nifong’s actions hold up under analysis of the Texas Disciplinary Rules of Professional Conduct (TDRPC)? Quite well in fact!” Click the Article’s Title to continue reading [PDF].
- “Mediating with the OCDC — Is It Worthwhile or a Waste of Time?“, by Bob Bennett
“Mediation is public policy in the State of Texas. The purpose of mediation is to provide a forum in which an impartial person, the mediator, facilitates communication between the parties to promote peaceable resolution of disputes and the early settlement of pending litigation through voluntary settlement procedures. Furthermore, ―[i]t is the responsibility of courts to carry out the statutory policy.‖ One would expect that the office in charge of attorney discipline, the Office of the Chief Disciplinary Counsel (―OCDC‖), would be interested in setting an example by using mediation whenever possible, especially in light of the ―expenses‖ and State Bar attorneys’ fees that are ultimately incurred and sometimes recovered in varying degrees from a Respondent in cases where misconduct is found. Surprisingly there is one lone voice in the legal world that opposes mediation, the OCDC regarding disciplinary matters, as set forth below.” Click the Article’s Title to continue reading [PDF].
- “Law Firm Compliance Programs, Sentencing Guidelines & the Attorney-Grievance System — How Are They Related?“, by Bob Bennett and Lillian B. Hardwick
“This article summarizes the points of the compliance and ethics program detailed in the 2004 Sentencing Guidelines, the tenor of the ABA Model Rules calling for such a program, the similarities between the 2004 Sentencing Guidelines and the sanctions factors in the Texas procedural rules, and the general nature of the compliance program recently submitted in negotiation with the Chief Disciplinary Counsel. Prior to a discussion of these topics, however, appears a brief explanation of the relevance of the attorney disciplinary system for all practicing Texas lawyers.” Click the Article’s Title to continue reading [PDF].
- “Just What Is Barratry, Anyway? A Quiz for the Unwary“, by Ruth A Kollman and Bob Bennett
“Ruth A. Kollman is a shareholder in the Kollman Firm of Dallas. She is an ethics lawyer who has written articles on topics related to legal ethics and grievance defense. Robert S. Bennett is a name partner in Houston’s Bennett Cochran. He defends lawyers in State Bar of Texas grievance and disciplinary proceedings and in criminal prosecutions. He is a former assistant U.S. attorney who is board certified in consumer law.” Click the Title to continue reading [PDF].
- “Why Should Barratry be a Crime“, by Bob Bennett
“The term barratry originates from the Anglo-Norman French word “baraterie,” meaning “deception.” It first surfaced in late thirteenth century English society as a term attached to the clogging of court dockets with frivolous lawsuits. By the fourteenth century, local English courts began to prosecute those believed to be guilty of committing barratry. Barrators were generally viewed as trouble makers and by the late sixteenth century, barratry became a blanket term used to denote both vexatious litigation and verbal offenses.4 The twentieth century witnessed a shift in the way society viewed barratry. With the passage of section 13(1) (a) of the Criminal Law Act of 1967, it was labeled an obsolete crime and ultimately abolished in England and Wales.5 In Australia, the term was used to refer to litigants who brought up frivolous suits; however it has long since fallen into disuse.” Click the Title to continue reading [PDF].
- “A Debate Over How Lawyers Have to Operate“, by Bob Bennett, et al. (reprinted from Texas Lawyer, July 24, 2000)
“Editor’s note: No attorney wants to be grieved or sued for malpractice. So what can be done to avoid such claims? Texas Lawyer brought together six legal malpractice/grievance attorneys on June 30 to discuss these issues and offer some advice. The following discussion has been edited for length and style.” Click the Title to continue reading debate [PDF].
- “The “Grief-ance” System & What You Should Know“, by Bob Bennett
“The basic flaw in the present “grief-ance” system is that once an attorney is summoned to an investigatory hearing, there is a built-in presumption that whatever the attorney did was wrong and whatever the complainant (usually the former client) says is true. In the most clear-cut of situations, an attorney probably does not need his own counsel, but a quick reading of the rules and the knowledge that a “hanging” mentality may permeate the hearing, should quickly jolt one to consider how much their law license is worth. A single violation is sufficient to bar you from ever practicing law again. With the State Bar now participating in “sting” operations, a thorough knowledge of the ethical rules for your daily practice is essential. A working knowledge of how a complaint will be handled will save a lot of “grief’ that one may have to endure because of greed, ignorance, or inattention. You can emerge a winner from the process but why run the race if you don’t have to.” Click the Title to continue reading [PDF].
- “Is the Fox Guarding the Chicken Coop?“, by Bob Bennett, Elaine M. Adams and Thomas W. Houghton (reprinted from Texas Lawyer, July 29 1996)
“An attorney disciplinary proceeding is, perhaps, one of the most traumatic, exhausting and financially draining experiences a lawyer can face. As members of a self-policing profession, we accept the burdens placed on us by disciplinary proceedings as an evil necessary to protect both the integrity of our profession and individuals who deal with attorneys. Protection of the integrity of our profession, however, should not come at the expense of attorneys facing disciplinary proceedings” Click the Article’s Title to continue reading [PDF].