Sometimes a suspended lawyer hasn't actually been suspended. This month's award-winner is one of the few attorneys who have successfully appealled a decision suspending them from the practice of law. It's still not clear what will happen to Mustafa Engin Derkunt of Austin, Texas.  But his murky path through the disciplinary process in the Lone Star state shows how difficult it can be in some states to determine what a lawyer accused of misconduct did or did not do.

Let's start with what has been revealed online.  Here is the disciplinary summary that appeared in a recent issue of the Texas Bar Journal:

On August 6, 2010, the Board of Disciplinary Appeals affirmed in part and reversed in part the judgment of active suspension of Austin attorney Mustafa Engin Derkunt, 58, State Bar of Texas Card No. 00785818, signed by the Evidentiary Panel for the State Bar of Texas District 09-2 grievance committee in Case No. A0050811711 on November 26, 2009. The Board reversed that part of the judgment that concluded that Derkunt violated TDRP 7.03(d) and reversed the three years active suspension sanction along with the award of attorney’s fees and direct expenses to the State Bar of Texas. The Board affirmed the conclusions of law that Derkunt violated TDRPC 1.01(b)(1), 3.01, 5.04(a), 7.03(e) and 8.04(a)(1). The matter is remanded to the District 09 grievance committee for a new hearing on the sanctions.

Clear as mud?  This is yet another example of a report that is written for other lawyers, not clients and potential clients who have a clear interest in understanding the extent to which, if any, a particular lawyer has been disciplined.  So what happened to Mr. Derkunt?  First, a disciplinary grievance committee held an evidentiary hearing and found that he had had violated Texas Disciplinary Rule of Professional Conduct 7.03(d).  Second, the grievance committee ordered that Mr. Derkunt be suspended for three years and ordered him to pay attorney's fees to the State Bar of Texas, the folks who are prosecuting him.

Texas Rule 7.03(d) provides that "A lawyer shall not enter into an agreement for, charge for, or collect a fee for professional employment obtained in violation of Rule 7.03(a), (b), or (c)." Rule 7.03(a) regulates how lawyers can solicit business.  Rule 7.03(b) specifically prohibits lawyers from paying or giving anything of value to non-lawyers for soliciting clients.  Rule 7.03(c) allows lawyers to pay certain costs on behalf of clients but otherwise limits what lawyers can pay prospective clients.  The basis of the grievance committee's decision does not seem to be online, but it is clear that it concluded that Mr. Derkunt violated some aspect of the rules regarding solicitation of clients.  Given the three-year suspension, we can also infer that the committee concluded that the violation or violations were serious.

But as indicated above, Mr. Derkunt successfully appealled his suspension to the Texas Board of Disciplinary Appeals, which is appointed by the Texas Supreme Court.  The Board concluded that as a matter of law Mr. Derkunt did not violate Rule 7.03(d).  Furthermore, it reversed his suspension as well as the order that he pay attorney's fees.  Seems like a complete victory for Mr. Derkunt.  Not exactly.  The Board found that he had violated five other Disciplinary Rules:  (1) Rule 1.01(b)(1), which requires a lawyer to be competent and not neglect a matter entrusted to the lawyer; (2) Rule 3.01, which generally prohibits a lawyer from making frivolous arguments on behalf of clients; (3) Rule 5.04(a), which restricts a lawyer's ability to share fees or promise to share fees with a non-lawyer; (4) Rule 7.03(e), which limits how lawyers may receive referral fees from other lawyers; and (5) Rule 8.04(a)(1), which prohibits lawyers from knowingly violating the Texas Disciplinary Rules of Professional Conduct.  Sounds serious, doesn't it?  It might be.  The Board returned the case to the grievance committee so that they could decide what penalties, if any, to impose on Mr. Derkunt for the rules that he did violate. It appears that the grievance committee has yet to make that determination, and if Mr Derkunt is again punished, it wouldn't be surprising if he didn't appeal that decision to the Board.

So what can we make of all of this?  As a client or prospective client what should you do?  There are no easy answers.  At a minimum consider confronting any lawyer accused of wrongdoing and see how they respond.  It may also make sense to get a copy of the court file that shows what the lawyer is specifically accused of doing. Texas, like many states, charges money to get copies of these files.  The cost in Texas appears to be $15 per file.  It would be far better if states just posted these documents online. Is it possible that this entire process has been and will continue to be unfair to Mr. Derkunt? Absolutely.  If he escapes serious punishment, he will have a legitimate complaint that he has been screwed and that the charges against him should never have been brought.  But the genie is out of the bottle. A hearing has been conducted. It's better for the public to be able to see the details of the accusations brought against any lawyer than have to read the tea leaves and decipher what may or may not have happened.  Worse yet, Mr. Derkunt's online profile shows that he has no history of discipline. Thus, unless a prospective client conducted an unusually diligent search, he or she would have no idea that Mr. Derkunt had any involvement with the disciplinary authorities in Texas.   

That's just not right.

Posted by Gideon on 12/07 at 06:42 AM
Categories: Suspended Lawyer of the Month | Categories: Texas Lawyers | Permalink