An appeals court in Houston has ruled a lawyer who threatens to file a grievance against opposing counsel during a trial in order to get an advantage in the litigation is committing an ethics violation.
A three-judge panel of the Texas Fourteenth Court of Appeals ruled unanimously Thursday that Houston lawyer Jack Yetiv was in violation of Rule 4.04 of the Texas Disciplinary Rules of Professional Conduct when he told opposing counsel to confess flaws in his case in open court or face disciplinary charges.
The Houston appeals court upheld a lower court ruling that suspended Yetiv from practicing law for four months and ordered him to pay legal fees to the State Bar of Texas. The judge probated Yetiv’s suspension.
“Threatening to use the criminal or disciplinary process solely to coerce a party in a private matter improperly suggests that a lawyer can manipulate the criminal process for personal gains and manipulate the legal system for personal advantage,” Houston Appeal Court Justice Ken Wise wrote in a 14-page opinion.
“Creating such false impressions is an abuse of the legal system that diminishes public confidence in the legal profession and in the fairness of the legal system as a whole,” Justice Wise wrote.
In 2016, Yetiv’s business, Westview, was in trial against Landmark America Insurance over an unpaid claim as the result of a fire. Yetiv testified in court that he delayed reporting the fire on the advice of his lawyer, Edward Rothberg.
Bruce Wilkin, a shareholder at Winstead and the lawyer representing the insurance company, subpoenaed Rothberg to testify. Yetiv objected, claiming attorney-client privilege. Wilkin argued that the privilege had been waived for multiple reasons, including the crime-fraud exception.
“Rothberg testified that he had no memory of telling Yetiv not to tell anyone about the fire,” Justice Wise wrote.
The court ruled that the crime-fraud exception applied and allowed Rothberg’s testimony.
The next day, Yetiv sent an email to Wilkin threatening to file a grievance.
“The reason I am writing to you is to advise you that unless, by noon on Monday, you announce in open court that you now realize that there was no factual or legal basis for your allegations, and that you are sorry for having made them and that you now withdraw them ENTIRELY, I plan to contact your superiors at Winstead and file a grievance against you and Winstead with the State Bar,” Yetiv wrote.
“If you do make the above statement – the language of which will have to be agreed upon – I will release you and Winstead from all potential liability in connection with the statement you made and will agree not to file a grievance against you and Winstead,” Yetiv wrote.
“Think about it carefully,” Yetiv concluded. “Choose wisely.”
Wilkin did not make such a statement and the jury ruled in his client’s favor. He did provide the trial court with a copy of Yetiv’s email.
The Commission for Lawyer Discipline brought the action against Yetiv.
Yetiv told the commission that he has two motives for sending the email: clear his reputation and find out if Wilkin had made a mistake by accusing Yetiv of bankruptcy insurance fraud.
The court hearing the disciplinary charges ruled against Yetiv and ordered the suspension.
“An attorney must be exceptionally careful when communicating a threat of criminal or disciplinary proceeding in the course of litigation,” Justice Wise wrote in upholding the trial court’s decision.