Below is an example of a summary judgment motion that was filed to defend a lawyer in the lawsuit filed by the State Bar to discipline a lawyer. The lawyer prevailed in this action and the take nothing summary judgement was granted in the lawyer’s favor.
The basis of winning the lawsuit was that the statute of limitations of 4 years to file a grievance had passed when the grievance was filed.
The Claims Against JOHN Are Time-Barred
A Four-Year Limitations Period
Texas Rule of Disciplinary Procedure 15.06 provides that:
No attorney may be disciplined for Professional Misconduct that occurred more than four years before the date on which a Grievance alleging the professional Misconduct is received by the Chief Disciplinary Counsel.
Tex. R. Disc. P. 15.06(A).
The Four-Year Limitations Period Commences At The Time Of The Alleged Solicitation.
The culminating act of alleged barratry is solicitation. Texas Law Shield LLP v. Crowley, 513 S.W.3d 582, 589-90 (Tex. App. – Houston [14t h Dist.] 2016, no pet.). The four-year statute of limitations, therefore, commences not later than the time of the alleged solicitation. Murphy v. Campbell, 964 S.W.2d 265,270 (Tex. 1997); American Medical Electronics v. Korn, 819 S.W.2d 573, 577-78 (Tex. App.-Dallas 1991, writ denied) (statute commences at the time the wrongful act was committed).
Even where fraud or concealment are pleaded and involved, although they are not pleaded or involved here because SMITH has testified that she could not think of any instance where JOHN communicated anything to her that was untrue, the statute commences not later than when “the Complainant discovered, or in the exercise of reasonable diligence should have discovered, the [alleged] Professional Misconduct.” Tex. R. Disc. P. 15.06(D). The Texas Supreme Court holds that this means that limitations are not tolled beyond the time that a reasonable person should have discovered the ”facts” made the basis of her claim. Willis v. Maverick, 760 S.W.2d 642,646 (Tex. 1988)(under discovery rule, the statute of limitations “does not begin to run until the claimant discovers or should have discovered through the exercise of reasonable care and diligence the facts” made the basis of her claim); Schneider Nat’! Carriers, Inc. v. Bates, 147 S.W.3d 264,291
- 138 (Tex. 2004)(“fraudulent concealment delays accrual until claimant knows true facts”).1Because the statute of limitations commences upon actual or constructive knowledge of ”facts,” the commencement does not await the plaintiffs recognition that he has grounds for a lawsuit or even the plaintiffs recognition that the defendant’s conduct may have been wrongful. In Arabian Shield Dev. Co. v. Hunt, the court of appeals held that:
The accrual of the cause of action does not await the plaintiffs recognition that he has grounds for a lawsuit.
The statutory period does not await a plaintiffs leisurely discovery of the full details of the alleged scheme.
Accrual did not await Arabian Shield’s recognition that it might have a winning lawsuit.
1 Citing KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 750 (Tex. 1999). 808 S.W.2d 577, 583-85 (Tex. App.-Dallas 1991, writ denied)(“Discovery Rule” heading in original).
In Gibson v. Ellis, the court of appeals held that the plaintiff’s claims were time-barred as a matter of law, even though the client-plaintiff swore that “he continued to believe that [the lawyer-defendant] did nothing wrong” until less than two years before the client-plaintiff filed suit. 126 S.W.3d 324,331 (Tex. App.-Dallas 2005, no pet.). In so holding, the court of appeals wrote:
Gibson’s affidavit, indicating it was only after he did legal research in September 1995 that he became aware of his cause of action against Ellis, does not create a fact issue with respect to when he discovered the factual basis of his claims.
In essence, Gibson argues the limitations period for attorney malpractice does not begin until the attorney admits wrongdoing. That is not the law.
126 S.W.3d 324, 328 (Tex. App.-Dallas 2005, no pet.)(emphasis added).
By definition, prospective clients in barratry cases always know when they have been solicited and, therefore, always know the “facts” giving rise to their claims not later than the time of the solicitation. Thus, as a matter oflaw, the four-year statute oflimitations starts to run at the time of the alleged solicitation-even if the prospective clients do not immediately recognize that the solicitation is actionable or wrongful. See, e.g., Murphy, 964 S.W.2d at 270; Cody Tex., L.P., 513 S.W.3d at 535-36; Arabian Shield Dev. Co., 808 S.W.2d at 583.
The Alleged Solicitation Occurred And The Four-Year Limitations Period Commenced Not Later than July 2014, But Reese Did Not File The Grievance Giving Rise To This Lawsuit Until More Than Four Years Later In September
CFLD admits that XXXXX was solicited, if at all, early July 2014. Petition, p. 2. The four year statute of limitations commenced, therefore, not later than July 2014 when XXXX was allegedly solicited and expired four years later in July 2018. See, e.g., Murphy, 964 S.W.2d at 270;
Cody Tex., L.P., 513 S.W.3d at 535-36; Arabian Shield Dev. Co., 808 S.W.2d at 583. But Reese did not file the grievance giving rise to this case until September 2018-more than two months too late. Petition, p. 4; see Ex. 1, 3. Thus, CFLD’s claims are time-barred as a matter oflaw. Tex. R. Disc. P. 15.06.
Moreover, even assuming arguendo that commencement of the statute of limitations could be delayed beyond the date of the alleged solicitation, and it cannot, it is undisputed that XXXX hired XXXXX and became XXXXX’s client in August 2014. Petition, p. 3; Ex. 1-2. As a matter oflaw, a lawyer cannot commit barratry against a client. SUPREME COURT OF TEXAS, RULES GOVERNING THE STATE BAR OF TEXAS art. 10, § 9 (Rules of Professional Conduct), Rule 7.03(a)(limiting prohibited solicitations to a “prospective client or nonclient”). As a matter of law, therefore, XXXXX could not have committed barratry against XXXXX after August 2014. Id. Because XXXX failed to file the grievance that gives rise to this suit until more than four years later in September 2018, CFLD’s claims would time-barred even if the statute of limitations did not commence until the date that XXXXX hired XXXXX. Tex. R. Disc. P. 15.06.
XXXXX is entitled to a take-nothing summary judgment. TEX. R. CIV. P. 166a(c).
The Bar Failed To Meet The “Mandatory” Deadline For A Just Cause Determination
The Bar must make a determination of whether just cause exists to proceed with a grievance within 60 days after the date that the lawyer-respondent’s response to the grievance complaint is due. Tex. R. Disc. P. 2.12. Texas Rule of Disciplinary Procedure 2.12 states that:
No more than sixty days after the date by which the Respondent must file a written response to the Complaint as set forth in Rule 2.10, the Chief Disciplinary Counsel shall investigate the Complaint and determine whether there is Just Cause.
Id. (emphasis added)
The sixty-day deadline is “mandatory.” Tex. R. Disc. P. 15.05. Texas Rule of Disciplinary Procedure 15.05 states that:
The time periods provided in Rules… 2.12… are mandatory. All other time periods herein provided are directory only and the failure to comply with them does not result in the invalidation of an act or event by reason of the noncompliance with those time limits.
Id. (emphasis added).
Here, XXXXX received XXXXX’s grievance complaint from the Bar on October 3, 2019. Ex. 1,
XXXXX’s response to the complaint was due 30 days later on November 2, 2019.2 Tex. R. Disc. P.
2.10 (“The Respondent shall deliver the response to both the Office of the Chief Disciplinary Counsel and the Complainant within thirty days after receipt of the notice [of the complaint]”). The Bar’s “mandatory” deadline by which to determine whether just cause existed, therefore, was 60 days later on January 1, 2019, which presumably rolled over to January 2, 2019 because of the New Year’s Day holiday. Tex. R. Disc. P. 2.12. But the Bar failed to make the just cause determination and notify Pohl until February 4, 2019-over a month too late.3 Ex. 5.
Because the Bar failed to comply with its own “mandatory” deadline to determine just cause-a determination without which this lawsuit never could have been filed-Pohl is entitled to a take-nothing summary judgment. Tex. R. Disc. P. 2.12-2.15; see TEX. R. CIV. P. 166a(c).