State Bar to Ask Appeals Court to Revive Discipline Case Against Austin Lawyer
By: Brenda Sapino Jeffreys
A panel of Texas’ Third District Court of Appeals judges will hear arguments Tuesday in a case pitting the State Bar of Texas’ Commission for Lawyer Discipline against an Austin lawyer fighting sanctions over allegedly abusive litigation tactics targeting businesses for Americans with Disabilities Act violations.
The commission said attorney Omar Weaver Rosales engaged in dishonest and frivolous litigation by threatening to sue website operators for baseless ADA violations unless they paid him $2,000 to go away. Rosales himself claims to have suffered injuries while in the military that left him with mental and physical disabilities.
Rosales has thus far succeeded in beating back the commission’s effort to sanction him, convincing a trial judge to dismiss the complaint as a violation of the Texas Citizens Participation Act, the state’s anti-SLAPP statute barring litigation found to be in violation of a defendant’s “right to free speech, right to petition, or right of association.”
The lower court also awarded Rosales $65,872 in attorney fees for defending himself against the commission.
But Rosales’ record of avoiding discipline for abusive litigation is not perfect: The Fifth Circuit Court of Appeals last year upheld an order banning Rosales from the U.S. District Court in Texas’ Western District—his home jurisdiction—for abusive tactics in a half-dozen cases alleging that businesses were in violation of the ADA.
The court also awarded more than $175,000 in fees and expenses, which the appellate panel approved.
Rosales appealed that ruling to the U.S. Supreme Court, which declined to hear it.
As detailed in appellate briefs, the disciplinary action being argued Tuesday centers on a series of letters Rosales sent to medical service providers claiming their websites were not ADA compliant.
But the alleged violations were in fact suggested best practices from a Department of Justice “toolkit” that “specifically disclaims that it is required under the ADA,” said the commission’s brief. “Notably, Rosales himself has since publicly stated that the law in this area is unsettled.”
“Then, the threats begin,” said the brief, filed by the bar’s Executive Counsel Linda Acevedo and Deputy Counsel Laura Popps, and appellate counsel Matthew Greer, who will argue the appeal.
“The letters threaten a lawsuit with a draft complaint attached. They state that the provider must self-report these ‘violations’ to the United States Department of Health and Human Services and forfeit all federal funds” and that “Rosales will contact DHHS to initiate a qui tam lawsuit.”
“Of course,” it said.” all of these dire consequences can be cured by paying Rosales the sum of $2,000.”
One case Rosales took to court was dismissed for lack of standing when a judge ruled “there was no explanation as to why or how Rosales’ disability prevented him from accessing the website, and no indication that Rosales actually sought to be a patient of the provider, other than to file a lawsuit against it,” the brief said.
Seven complaints were filed with the bar, which sought sanctions against Rosales for five alleged violations: engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; practicing under a trade name; stating or implying an ability to influence improperly a government agency or official; threatening medical providers with possible disciplinary actions in order to gain an advantage; and asserting frivolous claims in violation of Texas bar rules.
Rosales filed a motion to dismiss under the TCPA in Travis County District Court, which was granted by Judge R.H Wallace.
The commission brief argued that the TCPA “expressly states that it does not apply to government enforcement actions,” and that of 28 other other states with anti-SLAPP laws, it has been “unable to identify any other court that held it to be a defense to lawyer discipline, with several holding to the contrary.”
The commission is also protected by sovereign immunity, the bar argued.
And even if the court does decide the TCPA applies, it said, the commission presented a prima facie case that Rosales actions violated at least four bar rules. The trial court also erred in granting fees based on billing statements that were “entirely redacted” and insufficient to support the award, it said.
Rosales is represented by West, Webb, Allbritton & Gentry attorneys Gaines West and John “Jay” Rudinger Jr., who is arguing the appeal.
Rosales’ brief said that no case law supports the proposition that the TCPA does not apply to lawyer discipline or government enforcement actions, and that the Texas Supreme Court “recently determined that sovereign immunity is inapplicable in a TCPA action.”
The bar violations alleged by the commission are unsupported “by any evidence, much less clear and specific evidence, to establish its prima facie case,” Rosales’ lawyers argued.
Rosales’ brief said has filed hundreds of ADA lawsuits over the years “in an effort to bring Austin-area businesses into compliance” with the law.
His $2,000 settlement demands are “exactly the same type of demand that plaintiffs lawyers send every day—the opposing party is notified of its wrongdoing and afforded an opportunity to enter into negotiations to rectify the situation or be sued,” it said.
Rosales brief said his efforts were “maligned in the media as ‘exploitative’ and akin to shakedown.”
He argued that he was targeted by the bar at the request of one of the lawyers who successfully had him sanctioned and barred from the Western District.
“Rosales’ most vocal critic was Austin-based attorney James ‘Jim’ Harrington,” his brief said. “Harrington rallied his ‘troops’ to try and derail Rosales efforts, aiding in organizing the website-related complaints at issue in this lawsuit.”
“These grievances were an attempt to coerce Rosales into dropping the matters and not filing lawsuits, under the guise of perpetuating a narrative that Rosales’ ADA compliance practice is merely a get-rich-quick scheme. The [commission] took up the ‘torch’ and filed the underlying lawsuit in order to intimidate and coerce him not to file his lawsuits.”
Neither Rosales not his attorneys responded to requests for comment.