Thawer v. Commission for Lawyer Discipline
523 S.W.3d 177
Tex. App.2017Background
- Sherin Thawer, an attorney, was suspended July 31, 2013 from practice before the Board of Immigration Appeals, Immigration Courts, and DHS; that suspension was upheld and made effective by an Immigration Court order on November 5, 2013, which directed her to notify clients in writing of the suspension.
- The State Bar Commission for Lawyer Discipline sued Thawer alleging violations of Texas Disciplinary Rules 8.04(a)(3) (dishonesty/fraud), 8.04(a)(7) (violate disciplinary order), and 8.04(a)(11) (practice while suspended).
- Evidence at bench trial: Thawer appeared at a December 2013 USCIS hearing after suspension (was escorted out), her associate Talluri finished the hearing, clients Sapkota and Sharma testified they were not told of the suspension and later obtained relief; Thawer continued to sign retainer agreements and accept fees after the suspension; Thawer told a radio station owner she had the suspension reversed and provided advertising-approval documents as purported proof; a former employee testified Thawer forged a colleague’s signature on immigration documents.
- Trial court found Thawer engaged in dishonesty/fraud and violated the suspension order; entered a 24-month suspension partially probated (12 months active, 12 months probated) with conditions.
- On appeal Thawer contested evidentiary rulings, sufficiency of evidence on dishonesty, whether her conduct constituted "practice" before immigration bodies, and excessiveness of sanction; the court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of undisclosed witness (Rule 193.6) | Commission: substitute disciplinary counsel was effectively disclosed as "other disciplinary counsel"; O’Connell unavailable so Miller testified; no unfair surprise. | Thawer: Miller was not timely identified by name and testimony was improper. | Court: No abuse of discretion; good cause and no unfair surprise; testimony mostly cumulative. |
| Admission of retainer agreements and fee logs (scope of pleadings) | Commission: Petition alleged failure to notify clients of suspension; agreements show similar post-suspension client contracts and support Rule 8.04(a)(7) claim. | Thawer: Exhibits beyond scope of pleadings; Commission should have pleaded specific client names. | Court: Petition gave fair notice; exhibits admissible and, if error, were cumulative and harmless. |
| Business‑records hearsay foundation (Exhibits 5–8) | Commission: documents admissible as party admissions and/or under business‑records exception; sponsoring witness qualified. | Thawer: Lacking proper custodian and authentication; hearsay. | Court: Witness qualified under Rule 803(6); even if error, evidence was cumulative and harmless. |
| Sufficiency of evidence for dishonesty/fraud (8.04(a)(3)) | Commission: evidence Thawer appeared post-suspension without disclosure, accepted fees and signed contracts, misrepresented reversal of suspension, and forged signatures shows intent to deceive. | Thawer: No client was harmed; did not meaningfully practice; statements not fraudulent. | Court: Legally and factually sufficient proof of dishonesty/fraud; affirmed finding on Rule 8.04(a)(3). |
| Whether other rule violations necessary to support sanction (8.04(a)(7), (11)) | Commission: failing to notify clients and contracting/accepting fees constituted violations of suspension order and practice while suspended. | Thawer: Appearances and radio show did not constitute "practice"; hired associate to cover hearings. | Court: Because dishonesty violation alone sufficed, court declined to resolve all practice‑definition disputes. |
| Excessiveness of sanction | Commission: two‑year partially probated suspension appropriate given dishonesty, failure to notify clients, forgery, and damage to profession. | Thawer: No client harm, no prior discipline, acted to cover cases, did not lie on air or give bad legal advice; sanction excessive. | Court: Trial court considered Rule 3.10 factors and did not abuse discretion; sanction affirmed. |
Key Cases Cited
- McIntyre v. Comm’n for Lawyer Discipline, 169 S.W.3d 803 (Tex. App.—Dallas 2005) (standard for reviewing legal sufficiency and scope of pleadings in disciplinary appeals)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (no‑evidence review standard)
- James v. Comm’n for Lawyer Discipline, 310 S.W.3d 598 (Tex. App.—Dallas 2010) (factual sufficiency standard in discipline appeals)
- In re J.P.B., 180 S.W.3d 570 (Tex. 2005) (abuse‑of‑discretion review for evidentiary rulings)
- Strong v. Strong, 350 S.W.3d 759 (Tex. App.—Dallas 2011) (erroneous admission harmless when evidence cumulative)
- Favaloro v. Comm’n for Lawyer Discipline, 13 S.W.3d 831 (Tex. App.—Dallas 2000) (pleading sufficiency and fair notice)
- Cluck v. Comm’n for Lawyer Discipline, 214 S.W.3d 736 (Tex. App.—Austin 2007) (single rule violation suffices to support professional‑misconduct finding)
- Kilpatrick v. State Bar of Texas, 874 S.W.2d 656 (Tex. 1994) (trial court’s broad discretion to impose sanctions in discipline cases)
- Olsen v. Comm’n for Lawyer Discipline, 347 S.W.3d 876 (Tex. App.—Dallas 2011) (definitions of dishonesty/fraud and sanction review)