Olsen v. Commission for Lawyer Discipline
2011 Tex. App. LEXIS 6186
| Tex. App. | 2011Background
- Olsen was disbarred by the trial court for professional misconduct based on the Commission’s petition alleging violations of the Texas Disciplinary Rules and related offenses.
- Bendtsen, an elderly client with dementia, executed a 2002 will leaving most of her estate to her daughter Giron; Olsen prepared powers of attorney revoking Giron’s authority.
- Olsen represented Bendtsen in a guardianship proceeding and later prepared a 2005 will; he filed the 2005 will with a three-page document that included a jurat.
- The 2005 will’s jurat falsely stated Bendtsen signed before the notary; Bendtsen did not sign in the notary’s presence, and the notary was not present when Bendtsen signed.
- After Bendtsen’s death, Olsen filed for probate of the 2005 will; Giron challenged it, resulting in litigation that ultimately admitted the 2002 will to probate and set aside the 2005 will.
- At sanction time, Olsen failed to attend; the court imposed disbarment and awarded the Commission’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment on disciplinary misconduct was proper | Olsen failed to raise genuine issues on misconduct. | The undisputed facts establish violations of rules 3.03(a), 3.03(b), 3.08(a), 8.04(a)(1), 8.04(a)(3). | Summary judgment on misconduct upheld; other issues not reached. |
| Whether Olsen violated 8.04(a)(3) re the 2005 will and jurat | Olsen filed a three-page will with a false jurat as self-proving. | The jurat was not intentionally drafted to defraud; it was an error. | Disbarment upheld for violation of 8.04(a)(3) due to dishonest conduct in filing. |
| Whether disbarment was an appropriate sanction and Rule 3.10 factors were considered | Disbarment may not have properly weighed all 3.10 factors. | The trial court reasonably considered relevant 3.10 factors and had broad discretion. | Disbarment affirmed; court did not abuse discretion in sanction. |
| Whether the attorney’s fees award was justified | No admissible evidence supported the reasonableness of fees. | Fees were supported by testimony of Commission counsel and lawful under Rule 1.06(y). | Fees and costs upheld; award not an abuse of discretion. |
Key Cases Cited
- State Bar of Texas v. Kilpatrick, 874 S.W.2d 656 (Tex. 1994) (trial court broad discretion in disciplinary sanctions)
- Eureste v. Comm'n for Lawyer Discipline, 76 S.W.3d 184 (Tex.App.-Hous. [14th Dist.] 2002) (3.10 factors need not all be proven by evidence; discretion allowed)
- Minnick v. State Bar of Texas, 790 S.W.2d 87 (Tex.App.-Austin 1990) (sanction considerations and discretionary disbarment upheld)
- Gorrell v. Texas Utilities Elec. Co., 915 S.W.2d 55 (Tex.App.-Fort Worth 1995) (affidavit requirements and response standards in summary judgments)
- Banda v. Garcia, 955 S.W.2d 270 (Tex. 1997) (oath requirements and admissibility of testimony in disciplinary matters)
- City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex. 1979) (summary judgment procedure: reasons/objections must be in writing)
- In re Estate Bendtsen, 230 S.W.3d 823 (Tex. App.-Dallas 2007) (will contest proceedings and authenticity considerations referenced in misconduct context)