An Austin criminal-defense attorney challenging his conviction for contempt of court for making an obscene gesture during an appearance before a judge faces a new hurdle: The State Bar of Texas has filed a grievance against him.
The State Bar’s Office of Chief Disciplinary Counsel (OCDC) received the Bar-initiated grievance against solo Adam Reposa on Oct. 10. The OCDC notified Reposa of the grievance in a Nov. 6 letter.
John Neal, the Bar’s chief disciplinary counsel, declines comment on the grievance against Reposa. However, Neal says, the OCDC receives five to 15 Bar-initiated grievances against attorneys a year.
Reposa, who identifies himself as Adam “Bulletproof” Reposa on the State Bar Web site, has faced legal problems since March when he made an offensive gesture in a county court-at-law.
Senior Judge Paul Davis sentenced Reposa to 90 days in the Travis County Jail in April. Davis, sitting by assignment, found Reposa in contempt April 15 at the conclusion of a hearing in which Travis County Court-at-Law No. 6 Judge Jan Breland testified that Reposa made a gesture simulating masturbation while standing before her with a client. [See "Solo Sentenced to 90 Days in Jail for Obscene Gesture Out on Bond," Texas Lawyer, April 21, 2008, page 4.]
On June 2, Reposa filed an application for writ of habeas corpus with the state’s Court of Criminal Appeals. As alleged in Ex Parte Adam Reposa, the prosecution for his contempt hearing introduced evidence of extraneous conduct by Reposa, including an apparently satirical ad for an attorney identified as “Bulletproof, the DWI Stud” published in Whoopsy!, a magazine distributed in Austin clubs. The prosecution’s purpose in introducing the Whoopsy! material, Reposa alleges, was to draw the State Bar’s attention to him. [See "Big Whoopsy!" Texas Lawyer, July 9, 2008, page 7.]
According to the Bar’s grievance, Reposa was representing LaCharles Williams on a charge of driving while intoxicated. The Bar alleges in its grievance that Reposa was not in Breland’s court when State v. Williams was called for jury docket on March 11 and did not appear for three hours. After Reposa arrived in court and while he was standing before Breland, Reposa began arguing with Williams about Williams’ decision to plead guilty in the case and threatened to withdraw as his attorney, the Bar alleges. The Bar further alleges that when Breland asked the prosecutor to recite the terms of the plea offer, Reposa began whispering in Williams’ ear and made a masturbatory gesture when the prosecutor said something about the continued whisperings. As alleged in the grievance, Breland halted the court proceedings, ordered Reposa from the courtroom, found him in contempt and appointed another attorney to represent Williams.
The Bar alleges in the grievance that Williams was one of the oldest cases on the docket and would have gone to trial that day but for Reposa’s conduct that led to the contempt order. Reposa also had several other old cases on the docket, none of which could be tried that day due to his conduct, according to the grievance.
Paul Evans, the Austin solo who Breland appointed to represent Williams, says that Williams subsequently admitted guilt to the unadjudicated DWI charge pursuant to Texas Penal Code §12.45. Evans says when a case is “12.45′d,” a defendant pleads out on some charges and signs a form admitting he did the unadjudicated offense. “There’s no conviction,” he says.
Reposa says Williams had retained him as his attorney and that he was doing his job in trying to convince Williams not to accept the plea offer. “This is fascism,” Reposa says of the Bar’s grievance.
Karyl Krug, another Austin solo who represents Reposa in the habeas writ proceeding at the CCA, says of the Bar’s grievance, “They’re basically saying he [Reposa] harmed the client, but he didn’t.”
Krug says if Williams had pleaded guilty to the DWI charge, the conviction could be used in determining Williams’ sentence in a case pending in the U.S. District Court for the Western District in Austin.
Daryl Fields, spokesman for the U.S. Attorney’s Office for the Western District, says that on Nov. 12, a federal grand jury indicted Williams on a charge of possession of a firearm by a convicted felon in United States v. Williams. If convicted of the firearm charge, Williams’ criminal history would be a factor taken into consideration in the pre-sentencing report, Fields says.
Abe Hernandez Jr., the assistant federal public defender for the Western District in Austin who represents Williams in the federal firearms case, says it’s more than likely that Williams will plead not guilty. If Williams had taken the plea in the DWI case, that would have added one point on his criminal history that would be considered if he is convicted of the firearms charge, Hernandez says. The result could have been a longer sentence for Williams if he is convicted in the federal court.
“It’s certainly possible and probably likely it would have caused him to get some additional months,” Hernandez says.
The Bar alleges in the grievance that Reposa’s acts while representing Williams in Breland’s court violated Texas Disciplinary Rules of Professional Conduct. According to the Bar, Reposa violated Rule 1.02(a)(1), which requires a lawyer to abide by a client’s decision concerning the objectives and general methods of the representation; Rule 1.02(a)(3), which requires a lawyer in a criminal case to abide by a client’s decision about what plea to enter; and Rule 3.04(c)(5), which prohibits a lawyer from engaging in conduct intended to disrupt the proceedings.
Charles “Chuck” Herring, who represents lawyers in grievance proceedings, says if a client has indicated a desire to do a particular thing, the lawyer may try to persuade the client that taking that action may not be in the client’s best interests. “Once the client has truly made a decision — and it’s a final decision — the lawyer has to abide by that,” says Herring, a partner in Austin’s Herring & Irwin.
Herring says one question with regard to the Bar’s grievance against Reposa is whether Williams had made a final decision to accept the plea bargain.
Randy Leavitt, first assistant in the Travis County Attorney’s Office, prosecuted Reposa in the contempt hearing. Leavitt says his understanding from reading the transcript of the hearing before Breland is that Williams said he just wanted to plead to the DWI charge and Reposa kept interrupting to tell Williams not to do it. Based on his understanding of what happened, Leavitt says, he didn’t know whether Reposa’s client had made up his mind to plead to the charge.
