Unlike its sister court in Austin, Houston's First Court of Appeals declined to decide if the state's anti-SLAPP law applies to attorney discipline cases.

The lawsuit alleged an attorney represented a dead client and neglected to tell his opposing party or the court about it for three months.

But the Houston appellate court instead issued a ruling that the State Bar of Texas Commission for Lawyer Discipline had provided enough evidence of a prima facie case that Houston solo practitioner Rich Robins committed professional misconduct. In that situation, the Texas Citizens Participation Act tells courts not to dismiss the claims.

The ruling by Houston's First Court of Appeals means the Commission for Lawyer Discipline will get to proceed to discovery in its lawsuit against Robins, despite his arguments the state's anti-SLAPP law should protect him.

It's noteworthy that the First Court declined to decide whether the TCPA applies in lawyer discipline cases, unlike its sister court in Austin which ruled last year that it does. However, that ruling didn't set long-lasting precedent, since the legislature in 2019 amended the TCPA and specifically excluded lawyer discpline cases. Robins' case was filed before that and proceeded under the previous version of the anti-SLAPP law.

Robins said he's considering appealing the ruling.

He said although the client's sons told him she had died, he didn't have a duty to disclose the informatin because he could not immediately verify it by locating an obituary, death certificate or probate proceeding.

"I have never been disciplined by any bar authority in any state in over 25 years of actively practicing law, and I will continue to state the truth as this case progresses," he wrote in an email.

Claire Reynolds, spokeswoman for the bar's Office of Chief Disciplinary Counsel, didn't return a message seeking comment.

'As If Crisp Were Still Alive'

The 37-page opinion in Robins v. Commission for Lawyer Discipline by Justice Evelyn V. Keyes, joined by Chief Justice Sherry Radack and Justice Sarah Beth Landau, explains the background of the case.

Robins represented a client, Cindy Crisp, in a lawsuit to recover almost $6,900 from the sale of personal property. Crisp had multiple sclerosis and her health declined. Robin fell out of contact with her, but nevertheless filed suit on her behalf in 2016. He rejected a settlement offer from opposing counsel even though he couldn't speak to his client about it.

Next, Robins learned in 2017 from Crisp's sons, Austen and Jon Clickenbeard, that Crisp had died in 2015. As Crisp's heirs, later they hired him to pursue the claim.

"Robins continued to prosecute the suit as if Crisp were still alive," said the opinion. "After learning of Crisp's death, Robins went so far as to discuss Crisp's availability for a deposition with opposing counsel."

Since a dead client can't respond to discovery, Robins faced sanctions for failing to respond. A couple days before the June 2017 sanctions hearing he finally emailed the court administrator to ask how to file a suggestion of death.

At a hearing later, the trial judge told Robins he had been dishonest with the opposing party. In the end, the trial court struck Crisp's pleadings and awarded $250 sanctions against Robins.

Robins' relationship with the Clickenbeard brothers deteriorated fast. They terminated him and he responded by insulting them, threatening to sue, failing to return their file and more. They filed a grievance and a legal malpractice lawsuit against him, and he countered by suing them over an alleged breach of their retainer agreement.

The lawyer-discipline case that followed alleged that Robins committed professional misconduct in multiple ways. Robins asserted, among other things, that the anti-SLAPP law should dismiss the lawsuit because it was based on communications he made to the Clickenbeards that were protected speech.

The commission argued the TCPA doesn't apply to discipline cases, but even if it did, Robins didn't show the case was related to his exercise of free speech, while the commission had shown a prima facie case that he committed misconduct. For example, there were multiple email threads that showed Robins top priority was collecting his attorney fee so he could pay his law school loans. That motivated him to misrepresent facts to his clients, opposing counsel and the court, the opinion said.

The opinion said, "The commission met its burden of establishing by clear and specific evidence a prima facie case for each element of its professional misconduct claim against Robins."

Robins said in an interview that he's facing the grievance because he wrote a blog, TexasBarSunset.com, and opposed a proposed dues increase before the Texas Legislature when the bar underwent legislative review.

"They want to discredit me however they can," he said.

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