Dallas personal injury plaintiff attorney Amy Witherite wants the opportunity to question under oath her old boss, law partner and close friend, Brian Eberstein, about whether he violated an agreement the duo reached in 2015 when Eberstein decided to retire and Witherite paid him for exclusive rights to their old firm’s intellectual property.
In court documents filed Friday, Witherite filed a petition seeking pre-lawsuit discovery to investigate claims that Eberstein and his new law firm, Herbert & Eberstein, published marketing materials online that promoted Eberstein’s past ties to his old firm, Eberstein & Witherite.
Dave Wishnew, a Dallas lawyer representing Witherite, told The Texas Lawbook that he sent Eberstein and his new law partner Zachary Herbert a cease-and-desist order last week, but he did not hear back. Herbert actually worked as a young lawyer for Witherite and Eberstein before going out on his own.
“If I don’t hear back from them, I will move forward,” said Wishnew, who is a partner at Crawford, Wishnew & Lang. “To see your former partner and former associate who she mentored trade on her name – well, Amy is disappointed.”
“If we need to get an injunction to shut it down, we will,” he said. “This is not about money for Amy, it is about protecting her and the business she has built.”
The Texas Lawbook reached out to Eberstein seeking a comment, but he did not respond.
But Wishnew said Eberstein called him back late Friday saying they could take down the references to his old law firm and any promotional mentions of it in hopes that Wishnew would withdraw the petition to conduct the deposition.
“Not the case,” Wishnew said. “We want them under oath.”
In a separate interview Friday, Witherite told The Texas Lawbook that she and Eberstein teamed up law partners in 2001 and they became best of friends.
“Brian and I were very close for many years,” Witherite said. “He was part of my family. He lived with us while he was going through cancer treatments, and he never missed my child’s school events.”
The duo coined the marketing efforts “1-800-CarWreck” and “1-800-Truck-Wreck.”
Witherite said she and Eberstein had differences on how to operate the firm and, when Eberstein decided to retire in 2015, Witherite paid him an undisclosed amount of money – sources say it was seven-digits – in an agreement that gave Witherite all the rights to the intellectual property of their old firm.
“He pretty much set the terms of the buyout,” she said.
The petition filed Friday states that the “purchase agreement contained specific restrictions on Eberstein regarding the use of his name in the legal community after his retirement.”
Witherite said Eberstein & Witherite employed six lawyers and about 70 staff members when Eberstein retired.
Today, the Witherite Law Group has 19 attorneys and a staff of 237 people. The firm has seen its annual revenue grow 400% during the past six years, she said.
“We have the same EIN number, and we still … hashtag things as ‘formerly Eberstein & Witherite,’” Witherite said. “I have no problem with Brian coming out of retirement, but I was floored to see them advertise as former Eberstein & Witherite. I don’t wish Brian and Zach any ill will. They are good people. I’m dumbfounded. It is disappointing.”
Witherite said she sent Eberstein a text with a screenshot early last week.
“I said I hope you are doing well and making a lot money,” she said. “I told him that I needed him to stop using ‘formerly Eberstein & Witherite.”