By: John Council
A recent Houston appellate court decision touches on a fascinating question for the Texas Bar: Can a lawyer set a competing attorney up for barratry?
While the recent decision in Carter v. Kubosh doesn't quite answer that question, it does move closer toward resolving a sprawling case brewing in a Houston state district court that's testing the limits of the civil barratry law and questions who can claim to be a victim of the unethical practice.
That consolidated case involves 74 plaintiffs from Harris and Jefferson counties who have all sued Houston traffic ticket lawyer Paul Kubosh and his bail bondsman brother, Michael Kubosh, for barratry. The brothers have offices located next to each other and share computer and telephone lines.
In each of the nearly identical cases, the plaintiffs claim they called the bail bondsman brother for a price quote. Eventually they were switched to the lawyer brother's law office for possible employment even though the plaintiffs hadn't asked for an attorney.
By switching the calls over to the law office, the plaintiffs allege the Kubosh brothers violated Section 82.0651 of the Texas Government Code—a portion of the state's barratry statute updated by the Texas Legislature in 2011 that allows prospective clients to personally sue attorneys who violated the law and collect $10,000 per violation.
But the Kubosh brothers allege the cases against them were orchestrated by Andrew Sullo, a competing Houston traffic attorney who had each of the 74 plaintiffs call Kubosh Bail Bonding and read off prepared scripts in order to create the barratry claims. The brothers deny violating the barratry statue and have responded with a RICO violation counter claim against Sullo and the plaintiffs, among other things. And the Kubosh brothers sought 12 unredacted emails from the plaintiffs and their lawyers that they believe will prove they were set up—a request that the trial judge denied last year after ruling the emails were protected from discovery under the work product privilege.
The Kubosh brothers appealed that decision to Houston's First Court of Appeals. First Court ruled last month that the emails do not constitute privileged work product—and even if they were, the plaintiffs waived them under what's known as the offensive use doctrine. That Texas Supreme Court rule notes that a plaintiff cannot use one hand to seek affirmative relief in court and use the other to lower an "iron curtain of silence" against questions that may have a bearing on the plaintiff's right to maintain an action.
"If believed by the factfinder, in all probability, the emails would be outcome-determinative of the plaintiffs' cause of action for civil barratry, as they call into question whether the plaintiffs suffered an injury when they called the Kuboshes," wrote Justice Evelyn Keyes, who found that the emails must be released to the Kubosh brothers.
"Finally, disclosure of the emails is the only means by which the Kuboshes can obtain evidence that plaintiffs' counsel and Sullo set up meetings with (the plaintiffs that sued the Kuboshes) specifically so they could call the Kuboshes and potentially join the litigation," Keyes wrote.
Joe Larsen, a lawyer in the Houston office of Sedgwick who represents the Kubosh brothers, said the First Court's decision will go a long way in proving his clients were set up for barratry and are the real victims.
"They agreed that they emails go to the heart of the Kuboshes defenses against the plaintiffs barratry case, as well as in support of the Kuboshes' own affirmative claim including their own RICO counter claim," Larsen said.
Brian Zimmerman, a shareholder in Houston's Zimmerman, Axelrad, Meyer, Stern & Wise who represents the 74 plaintiffs in the case as well as Sullo, said he will not oppose the First Court's decision and plans to turn the 12 emails over to the Kuboshes in the next two weeks.
"The Court of Appeals decision doesn't change our position in the case that the Kuboshes violated the barratry statute. We defended the trial court's decision to protect my clients' rights, but we're going to honor the Court of Appeals decision," Zimmerman said. "This case isn't about the narrow issue that was decided in the appeal. It's about whether the Kubosh brothers violated the statute."
Zimmerman said the release of the emails won't help the Kuboshes case.
"It doesn't change anything. They already know what was in these documents because they've had depositions," Zimmerman said. "Either they violated the statute or they didn't and by transferring those calls to a lawyer."