Kevin B. Miller v. Commission for Lawyer Discipline--Appeal from 225th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00506-CV
Kevin B. MILLER,
Appellant
v.
COMMISSION for Lawyer Discipline,
Appellee
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-Cl-17977
Honorable Wesley G. Knize, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 30, 2004

AFFIRMED

This appeal arises from a disciplinary action imposing a probated five year suspension from the practice of law on appellant Kevin B. Miller. In five issues, Miller argues the trial court erred in finding he violated Texas Disciplinary Rule of Professional Conduct 1.03(a, b) and abused its discretion in imposing a probated suspension. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the judgment in this memorandum opinion. See Tex. R. App. P. 47.4.

1. Miller claims the evidence is legally and factually insufficient to support the finding he violated Disciplinary Rule 1.03 because an investigator and legal assistant acted on his behalf. See Tex. Disciplinary R. Prof'l Conduct 1.03(a, b), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G App. A (Vernon Supp. 2004-05). Although the testimony conflicts on whether Miller failed to return any phone calls from his clients and did not comply with their alleged requests, the trial court believed he did not, establishing a violation of Rule 1.03. (1) See id.; Lemond v. Jamail, 763 S.W.2d 910, 913 (Tex. App.-Houston [1st Dist.] 1988, writ denied) (fact finder is exclusive judge of credibility and may believe or disbelieve one witness and not others). Further, there is ample evidence to show Miller's clients failed to understand his representation and handling of their case. Regardless of the roles of his investigator and legal assistant, the evidence is sufficient to support the trial court's finding that Miller violated Rule 1.03. See State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 659 (Tex. 1994); Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986). Miller's first and second issues are overruled.

2. Miller's third, fourth and fifth points of error attack the severity of the trial court's suspension as an abuse of discretion.

(a) Miller argues the trial court abused its discretion because the evidence is legally and factually insufficient to support the imposition of a suspension. A trial court has broad discretion to determine whether an attorney guilty of professional misconduct should be reprimanded. See State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 659 (Tex. 1994) (even a single act may support severe sanctions). The trial court's detailed findings of fact show the court took into account all evidence presented, including Miller's actions toward his clients as well as a prior disciplinary action, and reasonably based its decision on guiding principles and relevant factors necessary to determine Miller's sanction. Because we hold the trial court did not abuse its discretion, Miller's third and fourth issues are overruled. See Eureste v. Comm'n for Lawyer Discipline, 76 S.W.3d 184, 202 (Tex. App.-Houston [14th Dist.] 2002, no pet.).

(b) Miller also says the suspension is excessive because the court failed to apply all the factors listed in Rule 3.10. See Tex. Disciplinary R. Prof'l Conduct 3.10, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G App. A (Vernon Supp. 2004-05). Miller did not make this objection at trial or in his motion for new trial; therefore, the issue is waived. See Tex. R. App. P. 33.1; Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999). However, even if this court were to consider the issue, the record as a whole shows Miller's sanction was reasonably determined and made with reference to guiding principles. See Eureste, 76 S.W.3d at 202; Love v. State Bar of Texas, 982 S.W.2d 989, 944 (Tex. App.-Houston [1st Dist.] 1998, no pet.). This issue is overruled.

The judgment of the trial court is affirmed.

Paul W. Green, Justice

1. Miller's clients testified that in over nine months, Miller never met with them, never spoke to them on the phone, nor sent them one letter.