Bishop v. Comm'n for Lawyer Discipline

GEORGE M. BISHOP, III, Appellant v. COMMISSION FOR LAWYER DISCIPLINE, Appellee

NO. 01-18-01115-CV

Court of Appeals For The First District of Texas

August 25, 2020

On Appeal from the 21st District Court Washington County, Texas

Trial Court Case No. 36282

MEMORANDUM OPINION

Appellant, George M. Bishop, III, challenges the trial court's modified judgment of partially probated suspension, entered after a jury trial, in the suit by appellee, the Commission for Lawyer Discipline (the "Commission"), against Bishop for violating Texas Disciplinary Rule of Professional Conduct 1.01(b)(1).¹ In five issues,² Bishop contends that the trial court erred in allowing certain witnesses to testify about the Texas electronic-filing system (the "Texas e-filing system") and the Texas Family Code, stating at trial that certain witnesses were testifying to "custom and practice in Washington County," not allowing him to make a bill of exception, reading-back only certain testimony when the jury made a request under Texas Rule of Civil Procedure 287,³ not granting his amended motion for new trial, and assessing an excessive sanction against him.

We affirm.

Background⁴

In its second amended disciplinary petition, the Commission alleged that on September 10, 2015, Ginger Fuchs hired Bishop, an attorney licensed to practice law in Texas, to represent her in her divorce proceeding against her now-ex-husband. Before contacting Bishop, Fuchs had requested and obtained a protective order against her ex-husband because he had physically assaulted her. Bishop agreed to represent Fuchs on a pro bono basis in her divorce proceeding if Fuchs paid all filing fees associated with the litigation. Fuchs requested that Bishop file a divorce petition on her behalf, but he did not. Instead, Fuchs's ex-husband unexpectedly filed and served her with a petition for divorce.

The Commission further alleged that temporary orders were entered in Fuchs's divorce proceeding and those orders required Fuchs's ex-husband to make child support payments to Fuchs and to have only supervised visitation with Fuchs's child. When Fuchs's ex-husband stopped making child support payments, Fuchs asked Bishop to file a motion for contempt, which Bishop did not do.

Additionally, during the divorce proceeding, Fuchs's ex-husband served Bishop with two sets of discovery requests. When the second set of discovery requests was not timely answered, Fuchs's ex-husband filed a motion to compel her responses. A hearing was set on the motion to compel. Fuchs's ex-husband provided notice of the hearing date when he filed his motion to compel. Bishop did not attend the hearing on the motion to compel, and the trial court signed an order requiring Fuchs to provide adequate discovery responses to her ex-husband's second set of discovery requests. The order also stated that if Fuchs did not provide adequate discovery responses, she would be ordered to pay attorney's fees and all of her pleadings in the divorce proceeding would be struck. Bishop did nothing to assist Fuchs in complying with the trial court's order, and Fuchs's ex-husband was ultimately granted a default divorce because Fuchs's pleadings were struck by the trial court and could not be considered in her divorce proceeding.

As to Fuchs's own discovery requests, Bishop represented to Fuchs that he had served her ex-husband with discovery requests in March 2016. In reality, Bishop served Fuchs's discovery requests in July 2016.

The Commission alleged that Bishop violated Texas Disciplinary Rule of Professional Conduct 1.01(b)(1), which provides that, "[i]n representing a client, a lawyer shall not neglect a legal matter entrusted to the lawyer."⁵

Bishop answered, denying the allegations in the Commission's petition.

Fuchs's Trial Testimony

At trial, Fuchs testified that Bishop represented her in her divorce proceeding against her ex-husband. According to Fuchs, Bishop reached out to her about representing her in her divorce proceeding; Fuchs did not contact Bishop. Fuchs wanted a divorce from her ex-husband because he had abused her, including abusing her in front of her child, and he had assaulted her with a knife. Fuchs also sought to have criminal charges for assault brought against her ex-husband in addition to seeking a divorce.

Fuchs had her first meeting with Bishop at his house on September 23, 2015. Bishop agreed to represent Fuchs in her divorce proceeding if she would pay the filing fees and service fees associated with the litigation. Around the time Bishop began representing Fuchs, Fuchs obtained a temporary protective order against her ex-husband. The temporary protective order, a copy of which the trial court admitted into evidence, prohibited Fuchs's ex-husband from, among other things, committing family violence and having contact or communicating with Fuchs or her child. It also granted Fuchs exclusive possession of her child. Fuchs provided Bishop with a copy of the temporary protective order when she first met with him.

Fuchs further testified that, on or about September 26, 2015, she gave Bishop $350 in cash to cover the filing fees and service fees for her petition for divorce. And Fuchs believed that Bishop was going to file a petition for divorce on her behalf. Bishop went so far as to send a completed draft of the divorce petition to Fuchs, which she signed, had notarized, and returned to Bishop. Bishop never told Fuchs that he did not file her petition for divorce.

On October 20, 2015, Fuchs independently learned that Bishop had not filed her petition for divorce against her ex-husband. When Fuchs attempted to contact Bishop to discuss his failure, Bishop told her that he had not filed the petition for divorce and he was "in trial and . . . devoting full time to [another] case." Because her petition for divorce had not been filed, Fuchs became concerned that the criminal case against her ex-husband would not be taken seriously and that she could be seen as a liar. Ultimately, Fuchs's ex-husband filed a petition for divorce against Fuchs, and Bishop filed a counterclaim for divorce on Fuchs's behalf three days later.

Fuchs also testified that in the course of her divorce proceeding, she and her ex-husband agreed to temporary orders. Those temporary orders required her ex-husband to make monthly child support payments to her and required that his visitation with her child be supervised.

After the temporary orders were in place, Fuchs's ex-husband served her with his first set of discovery requests. The trial court admitted into evidence a copy of Fuchs's ex-husband's February 2016 motion to compel discovery responses from Fuchs. That filing states that Fuchs's ex-husband served Fuchs with interrogatories, requests for production, and requests for disclosure on December 11, 2015, and he, as of February 10, 2016, had not received any response from Fuchs.⁶ Fuchs testified that Bishop did not notify her of her ex-husband's discovery requests until two weeks after they had been served and he only told her that she "needed to get them answered." Bishop never told Fuchs about any motion to compel filed by her ex-husband.

The trial court admitted into evidence a copy of an email, dated December 19, 2015, from Bishop to counsel for Fuchs's ex-husband. In the email, Bishop states: "I have received 55 interrogatories from you . . . . Please consider this an objection to these oppressive questions. If you prefer[,] we can file an objection with the court. If you will pick 25 questions, we will answer them . . . . We will not answer them until after January 10th as I am leaving for Australia on Monday and will not be back until January 10, 2016."⁷ Fuchs testified that at the time Bishop sent the December 19, 2015 email he had not yet mentioned her ex-husband's discovery requests to her. The trial court also admitted into evidence a copy of an email dated January 26, 2016, in which Bishop requested an additional one-week extension to respond to Fuchs's ex-husband's first set of discovery requests.

Fuchs stated that after Bishop returned from Australia, she went to his home to answer the discovery requests. Bishop handwrote the answers to the discovery requests. On February 17, 2016, Bishop sent Fuchs a copy of her responses to her ex-husband's interrogatories for her to sign and have notarized. He also sent her responses to the requests for disclosure to check for correctness. Fuchs noted that this occurred about three weeks after Bishop's January 26, 2016 email to her ex-husband's counsel in which he stated that he only needed a week extension to complete Fuchs's discovery responses. Fuchs signed the interrogatory responses and returned them to Bishop in February 2016. Fuchs also returned her responses to the requests for disclosure and provided Bishop with documents responsive to her ex-husband's requests for production around the same time.

Fuchs further testified that in February 2016, she and Bishop discussed sending discovery requests to her ex-husband. On March 1, 2016, Bishop sent her an email stating: "Look at these interrogatories and let me know what you think."⁸ Fuchs responded to Bishop with some suggestions. Initially, Fuchs believed that her ex-husband was served with her discovery requests in spring 2016, but she later learned that he was not served with her discovery requests until July 20, 2016. Fuchs's ex-husband was served with only interrogatories; he was never served with requests for admissions, requests for disclosure, or requests for production.

Additionally, Fuchs testified that in June 2016, her ex-husband stopped making his child support payments and he allowed Fuchs's child's health insurance to lapse. Fuchs notified Bishop of this in June 2016. Bishop told her that he would contact her ex-husband's counsel about filing a motion for contempt, but on August 9, 2016, Fuchs had to send Bishop a text message, a copy of which the trial court admitted into evidence, stating: "Can you please...