TexAppBlog Endorses Chad Baruch for President-Elect of the State Bar of Texas

Chad Baruch is the most-qualified candidate to address the real concerns facing the Texas Bar: staggering debt borne by young lawyers, mental-health and substance-abuse issues, and the challenges faced by retiring attorneys winding down their practices.

The State Bar: Self-Governance of Our Profession

I often hear the same question from attorneys of all stages in their legal careers, from new associates to named partners—why does the State Bar matter at all? The answer is simple in principle, but complex in practice: it allows attorneys to govern our profession.

This is not insignificant. The public has an interest in the regulation of the legal profession, and if not regulated by attorneys, it would be regulated by another state agency. Removing attorneys from the process of managing attorney conduct, and replacing the attorneys with bureaucrats, does not strengthen the profession in Texas. In sum, the State Bar is very important.

How Does the State Bar Help Our Profession?

“The mission of the State Bar of Texas is to support the administration of the legal system, assure all citizens equal access to justice, foster high standards of ethical conduct for lawyers, enable its members to better serve their clients and the public, educate the public about the rule of law, and promote diversity in the administration of justice and the practice of law.”

The State Bar accomplishes this mission through a number of programs and initiatives: continuing legal education, State Bar committees, administration of the disciplinary process, pro bono and legal access initiatives—just to name a few.

Why Chad Baruch?

It’s simple: a demonstrable history of excellence in service to our profession. For example, Chad Baruch has served on the State Bar Board of Directors, the State Bar Executive Committee, and the District 6 Grievance Committee. He was the Chair of the Texas Bar College, and has been the course director of 23 Texas Bar CLE courses. He has also been named a Pro Bono Champion by the Texas Access to Justice Commission. In sum, Chad Baruch has a stellar record of service in practically every area of the State Bar.

Texas lawyers are faced with real challenges: staggering debt borne by young lawyers, mental health and substance abuse, and the issues faced by retiring attorneys winding down their practices. Chad Baruch has a strong record of working with attorneys to address their concerns, and is the best candidate to face the challenges of the future.

For these reasons, TexAppBlog endorses Chad Baruch for President-Elect of the State Bar of Texas.

Agreed as to Form and Substance: An Appellate Kiss of Death?

kissThe judge grants your opponent’s summary judgment in what you estimate amounts to a gross miscarriage of justice. The judge asks counsel to agree to an order. You are presented with an order that grants the summary judgment, and you sign the line that says, innocuously enough, “agreed as to form and substance.” You then file your notice of appeal, knowing that the world will be made right once the court of appeals reviews your case. A docketing statement is filed, records are requested, briefing begins . . . and then you receive a plea to the jurisdiction. What happens next depends on where you filed your appeal.

Kiss Your Appeal Goodbye: Texarkana, Dallas, El Paso, and San Antonio

Four Texas Courts of Appeal (above) hold that approving a judgment as to form and substance creates a “consent judgment” that cannot be appealed. This view is best summed up by the El Paso Court:

Approval as to form is a matter of professional courtesy not necessary to a valid judgment. Such approval (as to form) does not waive any error in the proceedings or incident to the judgment itself. But approval as to substance is something else. Approval of the substance of a judgment is tantamount to an agreement by the signatory that the judgment meets all of its essential requirements. By Appellant’s approval of the substance of the judgment, we hold that Appellant has waived any error in the judgment . . . .

Cisneros v. Cisneros, 787 S.W.2d 550, 552 (Tex. App.—El Paso 1990).

The Appeal Lives On: Houston 14th, Houston 1st, Corpus Christi, Austin, and Fort Worth

Five Texas Courts of Appeal (above) hold that a counsel’s agreement as to form and substance, standing alone, is insufficient to constitute an unappealable consent judgment. This view is best expressed by the Corpus Christi Court:

We cannot agree that the phrase “approved as to form and substance,” standing alone, shows a “consent judgment” and a voluntary relinquishment of the right to appeal. Nothing in the body of the judgment suggested that the case had been settled or that the judgment was rendered by consent. No other indications of agreement exist in the record. In order to have a consent judgment, a party must explicitly and unmistakably give consent. The notation “approved as to form and substance,” standing alone, is too indefinite to justify declaring as a matter of law that this judgment was a consent judgment.

First Am. Title Ins. Co. v. Adams, 829 S.W.2d 356, 364 (Tex. App.—Corpus Christi 1992).

Resolving the Split

A consent judgment requires explicit and unmistakable consent.  Hill v. Bellville Gen. Hosp., 735 S.W.2d 675, 678 (Tex. App.—Houston [1st Dist.] 1987, no writ). An agreement “as to form and substance” seems to leave at least some ambiguity as to whether the agreement to “substance” is the substance of the order (the trial court did in fact grant my opponent’s summary judgment) or the substance of the party’s allegations (I agree they are entitled to the relief sought). That alone lends credence to the view that an agreement to “form and substance” does not amount to a consent judgment.

And besides, counsel in Texas know how to inform the court that the judgment is agreed—we put “AGREED JUDGMENT” right in title. Hopefully the Texas Supreme Court will weigh in and resolve the split and avoid further draconian results founded on ambiguous language. But in the meantime, stop agreeing “as to form and substance”—you don’t want the appeal resolving this dispute to be one you handled!

For further reference

The cases adopting the “consent judgment rule”: Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537, 544 (Tex. App.—Texarkana 2006, pet. denied); Office of Attorney General of Texas v. Wilson, 24 S.W.3d 902, 906 (Tex. App.—Dallas 2000, no pet.); Cisneros v. Cisneros, 787 S.W.2d 550, 552 (Tex. App.—El Paso 1990, no writ); Bexar County Criminal Dist. Attorney’s Office v. Mayo, 773 S.W.2d 642, 644 (Tex. App.—San Antonio 1989, no writ).

The cases rejecting the “consent judgment rule”: Andrew Shebay & Co., PLLC v. Bishop, 429 S.W.3d 644, 646–47 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); Chang v. Nguyen, 81 S.W.3d 314, 316, 319 n.1 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Bonner v. Texas Children’s Hosp., No. 13-03-228-CV, 2006 WL 349510, at *2 & n.5 (Tex. App.—Corpus Christi Feb. 16, 2006, no pet.); Cash v. Cash, No. 03-04-00563-CV, 2005 WL 1787552, at *3 & n.7 (Tex. App.—Austin July 27, 2005, no pet.); Leeper v. Woodrick, No. 2-04-371-CV, 2005 WL 1475614, at *2 (Tex. App.—Fort Worth June 23, 2005, no pet.).

Rule 11 Agreements by Email are Great . . . Unless You Want to Enforce Them

shutterstock_189432983-1024x714Abraham Lincoln famously said: “As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.” Abraham Lincoln would have been a fan of Rule 11 agreements.

Rule 11 agreements are routinely used by attorneys to extend deadlines, maintain the status quo, or even fully resolve cases. But even the best-intentioned peacemakers may find themselves having to defend the validity of their agreements in court, and at that time, your decision to make your agreement via email may prove to be a big mistake.

Under Texas Rule of Civil Procedure 11, “no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.” The “signed writing” requirement has legal foundations that date back to the time of Abraham Lincoln. In 1857, the Texas Supreme Court noted in Birdwell v. Cox:

Agreements of counsel, respecting the disposition of causes, which are merely verbal, are very liable to be misconstrued or forgotten, and to beget misunderstandings and controversies; and hence there is great propriety in the rule which requires that all agreements of counsel respecting their causes shall be in writing, and if not, the court will not enforce them. They will then speak for themselves, and the court can judge of their import, and proceed to act upon them with safety.

For over a hundred years, the “signed writing” was a piece of paper, signed by the respective counsel. But neither Abraham Lincoln nor the 1857 Texas Supreme Court had access to email, and so the trouble begins.

Fast forward to 2011. Insurance carriers for two defendants in the representative’s underlying medical malpractice case attempted to enter into a settlement. The insurance carriers claimed that an email did not satisfy the requirements of Tex. R. Civ. P. 11, but the plaintiff claimed that the email constituted acceptance of the material terms necessary to constitute a contract.

The Cunningham court first court noted:

The fact that the email is an electronic document does not prevent it from being enforceable under Rule 11 because . . . under the uniform electronic transactions act . . . ”[i]f a law requires a signature, an electronic signature satisfies the law.” Tex. Bus. & Com. Code Ann. § 322.007 (West 2016)). By statute, the term “electronic signature” means “an electronic sound, symbol, or process attached to . . . a record and executed or adopted by a person with the intent to sign the record.” Id. at § 322.002.

Cunningham v. Zurich Am. Ins. Co., 352 S.W.3d 519, 529 (Tex. App.—Fort Worth 2011, pet denied).

So far, so good. The Cunningham court next considered whether the email included some marking executed or adopted with the intent to sign the email. The court noted:

The email does not contain a graphical representation of Grabouski’s signature, an “/s/” followed by Grabouski’s typed name, or any other symbol or mark that unequivocally indicates a signature. The email does conclude, however, with what is commonly referred to as a “signature block,” that is, a block of information beginning with Grabouski’s name followed by her contact information.

Id. at 529–30.

Not looking great. The Cunningham court then concluded:

We decline to hold that the mere sending by Grabouski of an email containing a signature block satisfies the signature requirement when no evidence suggests that the information was typed purposefully rather than generated automatically, that Grabouski intended the typing of her name to be her signature, or that the parties had previously agreed that this action would constitute a signature. Because there is no other evidence of an electronic signature, the email was not signed, and it therefore does not meet the requirements of Rule 11.

Id. at 530.

And there you have it. In simple terms, there is no Rule 11 agreement without a graphical signature or an “/s/”. In the age of ubiquitous email, the savvy attorney needs to be diligent in obtaining more than a simple email confirming the parties’ agreement. Because much to the chagrin of Abraham Lincoln, not all attorneys are peacemakers, and you need to be ready to defend the validity of your agreements under Rule 11.