2015.100: Sotomayor on Kretzer and Volberding

From Holiday v. Stephens, 557 U.S. ___ (2015):

Statement of JUSTICE SOTOMAYOR, respecting the application for stay of execution and denial of certiorari.

A federal statute entitles defendants sentenced to death to court-appointed counsel during “all available post-conviction process.” 18 U. S. C. §3599(e). This statute requires counsel to “represent the defendant in … proceedings for executive or other clemency as may be available to the defendant.” Ibid.; see Harbison v. Bell, 556 U. S. 180, 185–186 (2009). Pursuant to §3599, Raphael Holiday asked his court-appointed counsel—Seth Kretzer and James Volberding—to petition the State of Texas for clemency. App. to Pet. for Cert. 5a. His attorneys declined, however, because of their belief that there was “no chance at all that a clemency petition would be granted.” Id., at 11a (internal quotation marks omitted).

Holiday asked a Federal District Court to appoint a new attorney who would file his petition for clemency. The court denied his request. The court recognized that §3599 compelled it to appoint new counsel if “the interests of justice” require. Ibid. (quoting Martel v. Clair, 565 U. S. ___, ___ (2012) (slip op., at 7); (internal quotation marks omitted). But given the “representations” of Holiday’s attorneys, the court found new counsel unwarranted. App. to Pet. for Cert. 11a.

This denial was an abuse of discretion. When Congress authorized federally funded counsel to represent clients in clemency proceedings, it plainly “did not want condemned men and women to be abandoned by their counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail cells.” Harbison, 556 U. S., at 194 (quoting Hain v. Mullin, 436 F. 3d 1168, 1175 (CA10 2006) (en banc); internal quotation marks omitted). Yet this is exactly what happened here. Although the “‘interests of justice’ standard contemplates a peculiarly context-specific inquiry,” Martel, 565 U. S., at ___ (slip op., at 13), it surely precludes a court from rejecting a substitution motion solely because it agrees with the appointed attorneys’ premonitions about clemency.

Executive clemency is fundamentally unpredictable. Clemency officials typically have “complete discretion” to commute a defendant’s sentence based on “a wide range of factors not comprehended by earlier judicial proceedings and sentencing determinations.” Ohio Adult Parole Authority v. Woodard, 523 U. S. 272, 278, 281 (1998) (principal opinion); see Tex. Const., Art. IV, §11; Tex. Code Crim. Proc. Ann., Art. 48.01 (Vernon Supp. 2014). By granting death-eligible defendants an attorney, “Congress ensured that no prisoner would be put to death without meaningful access to th[is] ‘ “fail safe” ’ of our justice system.” Harbison, 556 U. S., at 194 (quoting Herrera v. Collins, 506 U. S. 390, 415 (1993)). So long as clemency proceedings were “available” to Holiday, §3599(e), the interests of justice required the appointment of attorneys who would represent him in that process. Cf. Christeson v. Roper, 574 U. S. ___, ___ (2015) (per curiam) (slip op., at 8) (reversing the denial of a substitution motion under §3599 despite the “host of procedural obstacles” confronting the petitioner’s claims). The District Court’s denial did not adequately account for Holiday’s statutory right.

Despite the District Court’s error, I reluctantly join the Court’s decision to deny Holiday’s petition for certiorari. After the court rejected Holiday’s request for new counsel, his original attorneys eventually submitted a clemency application on his behalf. This application proved unsuccessful—and likely would have benefited from additional preparation by more zealous advocates. Yet this Court, unlike a state court, is likely to have no power to order Texas to reconsider its clemency decision with new attorneys representing Holiday.

She’s right about that last bit now, at least, since Volberding and Kretzer’s client has been killed.

So how does it feel, boys? Making the big time like this?

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2015.99: A Little Texas Ethics Law for Volberding and Kretzer

I do not like lawyers making censorious threats.

I do not like lawyers failing to understand the ethical rules.

I especially do not like lawyers making censorious threats based on their failure to understand the ethical rules.

So when I saw that Wes Volberding (Baylor, clerkship) and Seth Kretzer’s (UT Law Review, clerkship) in their letter to Gretchen Sween, who was trying to help Raphael Holiday get new appointed lawyers, who would be both competent and willing to keep fighting for him, wrote:

We also direct that you cease communication with our client. It appears you have been corresponding with him, and probably have been to see him without our consent or permission. While Rule 4.02 of the Disciplinary Rules allows you to respond to his letters, if you have gone to see him and acquired confidential information, and used that information to intervene in his case, then you have stretched Rule 4.02 beyond any reasonable interpretation. We respectfully urge you to go no farther.

—my blood pressure spiked.

Rule 4.02 says:

In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Those first four words are important, but it seems that Mr. Volberding and Mr. Kretzer do not understand them. Rule 4.02 only applies to a lawyer representing a client talking to some other represented person about the subject of the representation. If I represent Fred, and you represent Fred, you don’t need my permission to talk with Fred.

If Sween doesn’t represent anybody, Sween doesn’t need Mr. Volberding’s or Mr. Kretzer’s consent to talk to Mr. Holiday. If Sween represents Holiday, Sween doesn’t need Mr. Volberding’s or Mr. Kretzer’s consent to talk to Mr. Holiday. And obviously Mr. Holiday doesn’t need Mr. Volberding’s or Mr. Kretzer’s permission to talk to Sween or whoever else he wanted to talk to.

Sween can respond to Holiday’s letters, meet with him, acquire confidential information, correspond with people on his behalf, even have a copy of his file (“their file on him”) if Holiday wants her to. And there’s fuck-all that Mr. Volberding and Mr. Kretzer can do about it.

Messrs. Volberding and Kretzer filed egotistic and testosterone-drenched pleadings that deprived their client of hope, and probably shortened his life. I’m still processing their letters and pleadings, and the fact that they decided not to file a clemency petition on their client’s behalf because “A clemency petition just gives an inmate false hope.” I may return to this story once I’ve made sense of that moral, ethical, and legal mess.

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2015.98: Fidelity Says “No” to Chappell’s Scheme

I sent Fidelity a copy of Matthew Chappell’s email proposing that I act as a front man, using my name to allow him to get referrals from their Preferred Attorney list.1

I received a prompt emailed reply from their (a?) Director of Wealth Planning Product Management in Merrimack, New Hampshire:

Dear Attorney Bennett – this is outside the scope of our program.

Thank you!

That’s short and sweet. No surprises there. So Chappell’s suggestion that Fidelity would not be defrauded under his scheme is, it appears, false.

I’m sending my correspondent a link to this blog post, in case Fidelity is concerned about Chappell’s “family friends at Fidelity Investments who promise me AT LEAST one new client a week (Estate Planning) if I were able to get on their Preferred Attorney’s List” outside the scope of Fidelity’s program.

  1. I probably wouldn’t have bothered if Chappell hadn’t reminded me that he was there by incompetently threatening to sue me

Posted in Uncategorized | 2 Comments

2015.97: Volberding and Kretzer Just. Give. Up.

I have heard—and I believe it—that the worst thing about being under a death sentence is knowing that that date is coming, facing a date certain, watching the explicit number of days you have left become smaller and smaller and smaller until.

It’s unnatural.

So death penalty lawyers fight for every minute of time, for every chance they might find something that might get their clients another minute of time:

From here on, the lawyer’s job is to be creative.  Investigate again. Search for the really unlikely.  Float whatever.  And put together the clemency pitch.  Because, as we say in this business, once in a while pigs do fly.  And because what the hell.

People fight because as long as we are fighting there is hope, and without hope we might as well be already dead. Lawyers fight because that’s what we do.

But that’s not what happened in Raphael Holiday’s case. Raphael Holiday’s lawyers, Wes Volberding and Seth Kretzer, stopped fighting.

Well, they didn’t stop fighting. They just stopped fighting for Holiday, but they fought to keep Holiday and lawyer Gretchen Sween from fighting:

Volberding and Kretzer opposed the motion and sent Sween a letter threatening to seek sanctions if she did not stay away from their client.

I’d love to know what the basis is for those sanctions. Mr. Holiday had the right to talk to other lawyers, and seek other counsel. Ms. Sween had the right to talk to Mr. Holiday, and to help him seek other counsel. I can think of no reason for threatening sanctions.

Maybe they had a reason to stop fighting for their client. Why did they stop fighting for their client?

“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,” Volberding said in a telephone interview.

Volberding and Kretzer took away hope. They decided to take away hope. They decided it was time for their client to just give up and agree to be dead. They made decisions that were not theirs to make.
Here‘s the full discreditable story.

Jeff Gamso writes about it. Scott Greenfield writes about it. I don’t have anything else to say, except that if the story is accurate, Wes Volberding and Seth Kretzer are a disgrace to the bar.

Posted in Uncategorized | 7 Comments

2015.96: Wilco Water

There must be something in the water in Williamson County, Texas. After defeating John Bradley (that asshole), Jana Duty, who had never prosecuted an adult felony case, became District Attorney.

For her first adult felony jury trial, Duty chose a “delayed strangulation” case that even Bradley had recognized to be a dog. She bought found a witness who would testify that strangulation could cause death up to two years later.

During the trial there was an issue about Duty hiding evidence (my understanding is that the defense lawyer had asked her for a video; Duty had said she didn’t have it; at trial it turned out that she had had it, and knew she had), and a mistrial was declared. When Duty wanted to retry the case, the defense said, “not so fast,” arguing (essentially) that retrial was jeopardy-barred because it was the prosecutor’s misconduct that had caused the mistrial.

In the course of these proceedings, on March 20 Duty had sought a gag order from the court. On April 9 the court had issued the gag order. Then on May 7 Duty violated the gag order that she had requested by talking to the Austin American Statesman about a defense motion. The judge scheduled a hearing on May 8, and ordered Duty to be there.

She didn’t show up

because the judge wouldn’t tell her what it was about, and because it was only going to be a 10- to 15-minute hearing.

. . . . .

After missing that hearing, Duty sent an email to Kennon and other attorneys in the case that said: “If you feel I need to be reprimanded for communicating with the Statesman, I understand. But making a public spectacle out of punishing me just hurts everyone. No one will come out unscathed.”

(This is really one of those read-the-whole-article situations.)

After missing the hearing, in May Duty also sent one of her minions to file a motion to rescind the gag order, contending that it was unconstitutional.

And of course in July Duty filed a petition for writ of mandamus with the Court of Criminal Appeals, complaining that the district court had not been authorized to issue the gag order that she had asked it to issue. This was after she had tried to file petitions for writs of mandamus related to the same murder case in the Third Court of Appeals in May and June.

To recap:

  • March 20: Request gag order.
  • April 9: Get gag order.
  • May 6: Violate Gag order.
  • May 8: Blow off hearing.
  • May 13: Move to rescind gag order.
  • May 27: File mandamus in Austin Court of Appeals.
  • June 9: File mandamus in Austin Court of Appeals.
  • July 16: File mandamus in Court of Criminal Appeals.

In August visiting judge Doug Shaver (a retired judge out of Harris County) heard the contempt proceeding against Duty, and promptly sentenced her to 10 days in jail and a $500 fine.

Jana Duty's Mugshot
Jana Duty’s Mugshot

Sometimes people who are batshit insane don’t realize that it is obvious to the rest of the world that they are batshit insane. In any rational county, Jana Duty wouldn’t make it through the next Republican primary. She has made a laughingstock of them and cost the county a fortune.

Unfortunately, sometimes counties that are batshit insane don’t realize that it is obvious to the rest of the world that they are batshit insane.

Posted in Uncategorized | 5 Comments

2015.95: WTAF STCL

From Matthew Chappell’s November 13, 2015 demand letter:

Under Texas law Chapter 18A Section 1.1, it is unlawful to engage in defamation of another’s character and reputation. The elements for defamation are as follows:
1. The defendant published a statement of fact
2. The statement referred to the plaintiff
3. The statement was defamatory
4. The statement was false
5. With regard to the truth of the statement, the defendant was
1. acting with actual malice
6. The plaintiff suffered pecuniary injury.

Texas statutes are generally organized into codes—Penal Code, Civil Practice and Remedies Code, Probate Code, and so forth. Those Codes are divided into chapters dealing with particular subjects. Chapter 18 of the Texas Code of Criminal Procedure, for example, deals with search warrants.

There is no “Chapter 18A” in any Texas code that I can find, much less any Chapter 18A dealing with defamation.

So at first I was puzzled what “Texas law Chapter 18A Section 1.1” is. It is meaningless, cite soup. There is no such defamation-related law in Texas.

So I puzzled over it for a while, then I thought to google various combinations of <Texas law Chapter 18A Section 1.1 defamation>, and somehow I blundered into <18a defamation>, which brought up this result:

Screen shot of google result for 18a defamation
Screen shot of search result for <18a defamation>.

The form number (18A:3) looked familiar to me from using O’Connors practice guides. And sure enough, the link went to a copy of O’Connor’s form for an original answer in a defamation case.

So then I looked for <O’Connors forms 18a> and found that “Chapter 18A” refers to the “defamation” chapter of O’Connor’s Texas Causes of Action (Amazon link).

O’Connor’s books are awesome and indispensable and authoritative, but they are not legal authority. They are a good place to start if you want to figure out what the elements of a defamation claim are. You shouldn’t cite to them, but if you were to do so you wouldn’t refer to them as “Texas law.”

With his initial proposal Matthew Chappell called into question his own ethics. With his response to my first post he called into question his own judgment. With his cease-and-desist letter he calls into question his own competence: what kind of lawyer cites to “Texas law Chapter 18A Section 1.1”? An incompetent one.

Yes, in my opinion Matthew Chappell is not only unethical and foolish, but also incompetent.

Of course, the great thing about hiring an incompetent lawyer to write your will is that by the time his incompetence is discovered, you’ll be dead anyway, so you won’t care.

Is this your demand letter, Matthew Chappell?

Why do people write cease-and-desist letters anyway? According to this site (which may be where Chappell got his template),

A Cease & Desist Letter is often times the first step to asking an individual, or a business, to stop an illegal activity. The purpose of the letter is to threaten further legal action if the behavior does not stop.

According to another site,

Sometimes the threat of legal action is enough to compel someone to change what they are doing.

Well, that worked. I was going to leave Chappell alone, until he sent me a stupid fucking cease-and-desist letter. So now I’ve written two more posts, Scott Greenfield has written a post (I outsourced my apology to him), Brian Tannebaum has written a post (he has a an ethics opinion), and Keith Lee has written a post (reminding us of the Streisand Effect).

Few people wish to get involved in the paperwork and courtroom appearances that a defamation lawsuit would require.

It’s a nice theory, but obviously not applicable here. The proportion of people who “wish to get involved in the paperwork and courtroom appearances that a defamation lawsuit would require” is, I suspect, substantially higher within {people who defend lawsuits for a living} than outside it, and highest of all within the subset {people who defend the First Amendment for a living}.

Not only would a successful lawsuit end up causing the accused party more money for court costs, but it would take up the accused party’s time and could even damage their reputation.

I am fairly sure that if Chappell can find his way to the courthouse and come up with $350 to file suit against me, not only will I not be paying court costs, but Chappell’ll be paying Marc Randazza’s fees and sanctions under Texas’s anti-SLAPP statute. (That’s “Chapter 27 of the Texas Civil Practice Remedies Code.”)

A cease and desist letter is a way of giving someone a chance to stop what they are doing and avoid the hassle of a legal fight.

So apparently the cease-and-desist letter is not widely recognized as chum to throw into the water for the practical blawgosphere to have a feeding frenzy on.

Even aside from the folly of sending this letter to a guy who fancies himself1 a First Amendment and trial lawyer after you’ve been specifically warned … even aside from substantive ignorance of defamation law …

How do you get through law school and not know how to write even an approximately correct cite?

For your next cause of action, Mr. Chappell, instead of filing suit against me and getting your ass handed to you by Marc Randazza, may I suggest an educational malpractice suit against South Texas College of Law?

  1. Not without good reason, to be fair. 

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2015.93: Spaghetti Prosecution in Waco

Here is one of the indictments arising from the Waco Twin Peaks killings:

Download the PDF file .

This indictment charges three offenses: Murder (“Code: 19.02”), Aggravated Assault (“22.02”), and two counts Engaging in Organized Criminal Activity (“71.02”).

Murder and Aggravated Assault are lesser-included offenses of the two EOCA counts. “Committing the offense as a member of a criminal street gang” makes an agg assault a first-degree felony, and makes a murder a fifteen-to-life crime.

To convict this defendant of the most serious offense charged the State would have to prove at least (under the law of parties):

  • That the defendant intended to promote or assist the commission of some felony;
  • That murder resulted, and should have been anticipated as a result of the carrying out of that crime;
  • That the defendant solicited, encouraged, directed, aided, or attempted to aid another person to commit that felony; and
  • That the defendant did so as a member of a criminal street gang.

Here’s an interesting question: to convict the defendant of the EOCA, does the State have to prove beyond a reasonable doubt which person was murdered, or can the jury give a general verdict, so that they all agree that a murder occurred, just not which one? The answer ought to be “no,” but the State might argue that “commits murder” is just a manner or means of committing EOCA, and a jury does not have to be unanimous on which manner and means a defendant has used to commit an offense.1 If that were correct, then the jurors wouldn’t even have to be unanimous on which underlying offense—murder or aggravated assault—the defendant was responsible for.

If the State had any confidence that they could prove their case—that D, as a member of a criminal street gang, deliberately assisted someone in committing a felony that predictably resulted in a certain person’s case—they would have pled each murder separately. What they are hoping to do is throw a bunch of stuff at the wall, and hope that something sticks. If the State pleads, “D murdered A or B or C or … Z,” the jury is much more likely to convict out of sheer confusion than if the State pleads “D murdered A” as one count, “D murdered B” as another, and so forth.

The unit of prosecution for EOCA as pled is not the criminal street gang, but rather the underlying offense.2 So murdering A as a member of a criminal street gang is a separate offense from murdering B as a member of a criminal street gang. Multiple offenses arising from one “criminal episode” may be alleged in a single indictment, but they must be pled in separate counts.

If we take the gang allegations out of the picture (the State could abandon those allegations at any time) it seems obvious to me that the murders and aggravated assaults are even more improperly pled. The State has pled ten murders in one paragraph, and twenty-three aggravated assaults in the other. That’d be a separate ground for quashing the indictment.

The Waco defendants haven’t paid me enough to research the issue, but their lawyers should certainly be considering motions to quash.

In Texas, motions to quash must be filed by the earlier of a) the formal motion-filing deadline, if there is one; and b) the day before trial. I’d wait till the last possible moment to file a motion to quash so that the State can waste as much time riding a defective charging instrument as possible before I force them to choose a different horse.

What good does a motion to quash do in this case? If it’s denied, something interesting is preserved for appeal, and the lesser-included agg assault and murder are probably off the table because the only way the indictment works is if it’s for a single count of EOCA pled in two separate pairs of two paragraphs. If the motion to quash is granted, the State has to rewrite their indictment to match the law—one count for each murder, one count for each aggravated assault, and sixty-six counts of EOCA.

Either way, the State’s options for proving the case are narrowed. Which is, as Martha Stewart might have said, “a good thing.”

  1. For example, if four jurors believe beyond a reasonable doubt that D murdered C by stabbing him, four believe that D murdered C by beating him, and four believe that D murdered C by shooting him, they may find D guilty of murdering C. 

  2. If they had pled EOCA by conspiring, the conspiracy would be the unit of prosecution, and it could include multiple deaths. 

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2015.92: Matthew Chappell Responds

I sent Matthew Chappell a link to my last post.

He quickly responded:

And now you’ve committed a handful of torts, including libel by taking my words out of context and tortious interference with business.

Enjoy the lawsuit I’m in the process of filing against you, psycho, arrogant, inferiority complex-ridden moron.

Matthew Chappell

Attorney At Law

723 Main Street

Suite 700-07

Houston, Texas 77002



Website: mcattorney.net

What Chappell doesn’t realize (because obviously he’s not a guy who does his homework before inviting experienced lawyers to join him in what appears to be fraud against a major investment company) is that I am not some civilian who quails at the thought of being dragged into court. I have been sued before, and I will be sued again. Every time someone tries to attack me for my writing, I make free speech stronger by refusing to cave in. So I actually will enjoy the lawsuit he is in the process of filing against me.

I hope Chappell doesn’t have a good friend with enough wisdom to tell him to stop digging. Maybe this’ll be my chance to buy Marc Randazza the best steak in Houston.

Posted in Uncategorized | 13 Comments

2015.91: Will Anyone Help Matthew Chappell Out? [Updated]

Sometimes when I’ve written about ethical issues and use specific examples, people whine at me that I should be nicer; that instead of publicizing other lawyers’ misdeeds I should contact them and counsel them.

The theoretical problem with being nicer is that I might make more of a difference by writing here than by counseling. If I send an email to a lawyer who has strayed, I might put him back on the ethical path, but nobody else benefits from the lesson. If I write here, though, everyone might have the benefit of the lesson. No professional courtesy is owed between lawyers where misconduct is concerned. In fact, lawyers have a special public duty to police themselves, which means that preventing misconduct trumps being nice.

The practical problem with being nicer is that it isn’t appreciated. Like Charlie Brown, I keep making those calls, and time after time I am rebuffed. “Nice” is really only appreciated in contrast with something else, so the people who I call don’t realize that by taking the time to call them and offer them the benefit of my experience and education I’m being nice.

But still I keep trying. I tried this morning with Matthew Chappell. He didn’t think I was being nice. He thought I was being arrogant.1 He told me to piss off.

So I suppose this is me pissing off.

This morning I got this email from Chappell:

I’m going down the list of Board Certified Texas Attorneys to find a solo attorney with 5 or more years of experience to make this offer to. I have 2 years experience, graduating from STCL in 2013.

I have family friends at Fidelity Investments who promise me AT LEAST one new client a week (Estate Planning) if I were able to get on their Preferred Attorney’s List; however, I have to wait a three more stupid years, as Fidelity now requires 5 years of experience to be placed on this list (which wasn’t always the case).

I need to find someone with 5 years who my friends can nominate; the business would be filtered through that someone, but wouldn’t be intrusive AT ALL(I will set up a separate email acct or Google phone number for these clients).

There is absolutely ZERO liability or accountability or responsibility on your part. In exchange, I’m willing to either offer you a share of the clientele or to subsidize your malpractice insurance to bring it up to 2 million/per incident (usually around $3600/yr), which, in addition to the 5 years, is another Fidelity req to be on the list. I already have this type of policy myself.

Let me know if you’d be interested, and I’ll put you in touch with my Fidelity contact who can explain further. Like I said, I’m going down the Board Specialization list of names one by one and sending pretty much the same email. First come, first served.

Thanks, and all best,
Matthew Chappell
Attorney At Law
723 Main Street
Suite 700-07
Houston, Texas 77002

Check out Chappell’s website, McAttorney.net2: it’s amusing, tacky, and probably deceptive, but that’s for another day. Today I am going to discuss Chappell’s proposal.

Fidelity, an investment company has a “preferred attorneys” list. Lawyers must have at least five years’ (including at least three “stupid years”) experience to get on the list. Fidelity did not always have this five-year requirement; this suggest that the requirement is material to them. We don’t know why Fidelity doesn’t want second-year lawyers like Matthew Chappell handling cases for its clients, but if I had to guess, I would say that Fidelity didn’t want kid lawyers practicing on its clients. In any case, it’s not for us to decide whether Fidelity’s rules are right or wrong. They are Fidelity’s rules. Referrals are important, and the referrer gets to decide who he wants to refer clients to. Nobody is entitled to Fidelity’s referrals in violation of its rules, even if they have a cooler on the inside.

So, lawyers. Let’s imagine what happens if you sign on as Matthew Chappell’s nominee, the strawman to whom Fidelity will refer cases, which will then be funneled to Chappell with no involvement from you.

It looks a lot like you’re participating in a fraud against Fidelity. Maybe Chappell’s “Fidelity contact” can explain this in some way that makes it non-fraudulent. Maybe it is fraudulent and Fidelity never finds out. Maybe Fidelity doesn’t care. But suppose that “your” clients start complaining to Fidelity about “your” service. How long do you think it’s going to take them to figure out what your arrangement with Chappell was?

When Fidelity realizes what’s going on, do you think they are going to be kindly inclined toward you for helping him defeat their rules, or do you think they’re going to go running to the State Bar and your local DA? You’ve helped Chappell deprive Fidelity of something of value to both it and him (its referrals) on false pretenses. Do you get indicted? Do you get disbarred? Maybe not.

That’s a pretty damn expensive “maybe.” What do you get in return?

I’m willing to either offer you a share of the clientele or to subsidize your malpractice insurance to bring it up to 2 million/per incident (usually around $3600/yr), which, in addition to the 5 years, is another Fidelity req to be on the list.

“A share of the clientele” is vague, but sounds negotiable. If you were a board-certified estate planning lawyer and the share of the clientele were 100%, the deal might be both safe (because you would actually be doing the work that Fidelity was referring to you) and worthwhile. The potential liability for letting a lawyer with less than two years’ experience,3 take a single case in your name without your direct supervision is spectacular. He’s paying you to use your name to evade Fidelity’s rules? I’ve seen federal fraud indictments alleging more-benign activity.

The offered alternative of upping your malpractice insurance is worthless: if you don’t have a two-million-dollar policy now, it’s because you don’t need one now. You will certainly need one if a lawyer with a year and a half of experience (who claims two) starts taking cases in your name without supervision.

But if you take that option, it had better be an “occurrence” policy, which has the insurance company on the hook if the malpractice occurs while the policy is in force, no matter when the claim is made,4 because otherwise when Chappell gets tired of paying for the policy you are facing liability for whatever he might have screwed up before that. Also, you’d better explain to the insurance company why Chappell is covered under your policy.

What else? Now Chappell has a phone number and email address associated with your name. Fidelity only refers you estate-planning clients, but those clients refer other business to Chappell, whom they think works for you. Guess who gets grieved when Chappell decides to take a criminal case (because it looks easy) and screws it up. Guess who gets sued when Chappell takes that billion-dollar PI case (because he knows everything) and blows the statute of limitations.

Here’s a protip: when someone says “There is absolutely ZERO liability or accountability or responsibility on your part” there’s a reason he’s being that emphatic, and the reason is not that the statement is clearly true. Here, it happens to be false. If you allow Chappell to use your name you are potentially liable, accountable, and responsible (all of which mean the same thing) in civil court, in criminal court, and before the State Bar for whatever Chappell does in your name. As a lawyer, your name—the public face of your reputation—is your most valuable asset. It should be treasured, and not rented out to a young pup who wants a quick buck.

I am going to attribute Chappell’s “absolutely ZERO liability” statement to stupidity, but only because he gets the benefit of Hanlon’s Razor.

Intentionally or not, Chappell’s email reads like a Nigerian fraud scheme. Nigerian fraud schemes read like Nigerian fraud schemes because Nigerian fraudsters need an easy way to distinguish the potential victims (those naive enough to fall for the scam) from non-victims.

If you think it’s a good idea, I have $15 million in gold that I need to repatriate, beloved.

[Update: Mr. Chappell claims that I took his email out of context. What I published is his solicitation email; since he wants me to contextualize it, here’s the email chain between him and me after his solicitation email but before my blog post. I don’t see how it changes the story, but here you go:

MB to Chappell 11/12/15 0842

Not no, but hell no.

 Is there any chance I can, old dog to young pup, persuade you to stop now and not pursue this fraudulent course of action?

 Please let me know before noon.



Chappell to MB 11/12/15 0930

No fraud. The client will KNOW that I only have 2 yrs experience. And I’m 42, so hardly a young pup;) Perhaps my email wasn’t clear.

Matthew Chappell

Attorney At Law

723 Main Street

Suite 700-07

Houston, Texas 77002



Website: mcattorney.net

MB to Chappell 11/12/15 0937

I think your email was perfectly clear. And legally, you’re still on the teat. :-)

You need to step back and look at this objectively. What you are doing is looking for a straw “preferred attorney” to trick Fidelity into referring you clients.

What did you do before law school? Maybe that’ll help me explain.

This is dangerous for you, and dangerous for the lawyer who helps you with it. In the event that you find someone foolish enough to join your scheme, in the best-case scenario you get away with it and nothing goes wrong. In the worst-case scenario, though, you and he get disbarred.

Don’t bet your meal ticket on Fidelity being cool with the arrangement.

Chappell to MB 11/12/15 0949:

Still don’t understand. If the client KNOWS it is me, not the “preferred attorney” doing the work, where’s the fraud? The atty is merely referring the client to me, and with no endorsements or false claims whatsoever. The client will KNOW everything; thus no fraud. I was a teacher before and a small biz owner before that.

I truly appreciate your concern, but I still see no fraud if no one’s being defrauded. ??

Chappell to MB 11/12/15 0951:

Thank you for your input. I will contact the Bar and find out first-hand which “teat” I’m on.

MB to Chappell 11/12/15 1106:

The teat reference was to your contention that you aren’t a young pup.

I can explain it to you, but I can’t understand it for you. Lay out the scheme for the State Bar just as you’ve laid it out for me, and nobody halfway competent will sign off on it.

Chappell to MB 11/12/15 1111:

Thanks for your arrogance. Best wishes.

MB to Chappell 11/12/15 1126:

Ha. Teachers have been calling me “arrogant” since I was 13. Like the rest, you commit the classic blunder of mistaking confidence in competence for arrogance.

I’ve been doing this stuff for 20 years. I’ve been grieved unsuccessfully, I’ve successfully defended grievances, and I’ve taught ethics.

I took my valuable time to reach out to you and try to share the benefit of that with you, but your greed has blinded you to what should be obvious.

I guess you should have done some homework before emailing me, because I’ve also written extensively on ethics at my blog, DefendingPeople.com, where you are about to be Exhibit A.

There is nothing I want or need from you. You needn’t respond.

Best of luck,


Chappell to MB 11/12/15 1130:

Nope. Just arrogant. Now piss off. 

After I sent him a copy of this post, Chappell responded; I have already written about that.

I’ll keep you posted, beloved.

  1. Chappell was a teacher before he was a lawyer, and—as I may have mentioned before—teachers and others have been calling me “arrogant” since my brief stint in eighth grade. It never has bothered me. Arrogance is an exaggerated sense of one’s abilities, and I am fairly sure that my sense of my abilities is accurate-to-understated: I know some things, I understand some things, I’ve got a pretty good brain, but mostly I’m just lucky. Of course, if my sense of my abilities were exaggerated, I probably wouldn’t know it, but it is congruent with the social proof. 

  2. At least that’s the way I read it. 

  3. According to the SBOT,  “I have 2 years experience” is a lie. 

  4. I’ll bet that a two-million-dollar “occurrence” policy for a second-year lawyer doing estate planning, if you can find one, is more than $3,600 per year. 

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