Reprinted from the October 23, 2014 Mongoose newsletter.
Attorney Doug York is taking cases in the court where his fiance, Judge Alicia Franklin, presides. If you want a case out of the 311th, York is the attorney to hire. Both York and Franklin should have enough sense and ethics to realize that York should simply not accept cases that are already pending in the 311th, especially those cases where Franklin has already heard something or where there is already a hearing set. Franklin should not automatically recuse herself in cases where York allows himself to be hired knowing the case is in his wife-to-be’s court.
In Cause No. 2004-02532, Sheikh v Sheikh, a final divorce decree was entered in the 311th in March 2005. The ex-wife’s attorney, Scott Boyd requested a writ of execution on July 18, 2014 to try to collect on the 2005 divorce judgment. In September 2014, a Fort Bend Constable seized a house belonging to the ex-husband worth about $152,000. The ex-husband hired a lawyer to get a temporary restraining order to stop the writ execution because he claimed he had satisfied the nine year old divorce judgment. Judge Alicia Franklin on October 3, signed the ex-husband’s proposed TRO and temporarily halted all collection efforts.
The ex-wife, who already had a lawyer, hired Judge Franklin’s fiance, Doug York, for this case that was obviously pending in the 311th, had been ruled on by Franklin and was set for a hearing on October 9. On October 7, York filed an Answer for the ex-wife and a motion to recuse Judge Franklin. Click here to see York’s motion to recuse his betrothed. Without any notice to the other side and with no hearing, Franklin granted York’s motion and recused herself on October 8. The ex-husband’s frantic efforts to stop execution on the judgment were temporarily stopped because of York and Franklin’s actions. The case was transferred to the 246th on October 14.
This is not the first time that York has allowed himself to be hired on a case pending in his sweetheart’s court. In July 2014, just after Franklin took office, York allowed the husband in a divorce, Cause No. 2013-72353, to hire him the week before a hearing on temporary orders. Click here to read the Motion to Recuse York filed on July 18 just before the hearing set for July 22. Unfortunately for York, the wife was represented by Marcia Zimmerman and Ms. Zimmerman is a lawyer unwilling to be intimidated by anyone. Zimmerman called York’s office, York e-mailed Zimmerman and she replied, York replied and then Zimmerman shared the exchange with dozens of attorneys (who then forwarded the e-mails to even more lawyers). Below are excerpts of the spirited exchange of very different views on ethics between York and Zimmerman. Ms. Zimmerman gave me permission to use these e-mails.
Monday, July 21, York to Zimmerman:
….First off, I will address your remarks on a professional level because I am hoping you have mis-spoke or that something has been lost in translation.
1) Are you angry because I actually made a business decision and took a case that happened to be in the 311th? (If this is so, would you be willing to pay me each and every retainer that you think I should pass up just because there is a case in the 311th? I will be happy to do such). (I am positive that you would not lose thousands upon thousands of dollars yourself so hopefully this is not what you’re angry about). (If you actually want me to pass up EVERY case that is in the 311th, then that is illogical and I refuse to make such a bad business decision, and I’m sure people would never think that I should. If they do, then they too can contribute to giving me money for all retainers I pass up).
2) I do not know what you and Judge Franklin discussed previously, but I’m positive she would not indicate that any business lose money, including yours, when a case could be transferred while keeping all ethics in line and above board.
3) You may be unenlightened on the recusal process. The case goes to Judge Underwood, who then tells Judge Farr to assign it to another court. There, it is once again placed in a random delivery (just like a new filing) and assigned to a court WITHOUT any input from me, you, or Judge Franklin. I now want you to explain how this could be “forum shopping” when I haven’t a clue on what court this will land in? Please tell me you did not make such a serious accusation against myself and Judge Franklin. I also want you to confirm that you have accused myself and Judge Franklin in being involved with a scheme to “forum shop.” This is a very serious acusation that shall be dealt with immediately. Neither her or myself take these accusations lightly. My hope is that you were just uneducated about the process, and that you did not actually accuse us of intentionally “forum shopping.”
4) Did you actually want this case to remain in the 311th knowing there is a conflict or something? Even if you wanted it to remain there, I would still have Judge Franklin recused because we do not want to be blamed for ANY appearance of impropriety.
5) IF (and I say a strong “IF” here hoping you actually did not say such things and it’s just been translated wrong), you actually did say those things to my legal assistant, now would be a very good time to apologize.
6) I am away on vacation, and as such there is nothing more for me to respond to, or call you because you “demand an explanation.” I will not disrupt any further vacation to address this in hopes you spoke out of merely not knowing how things work.
Thank you, and I will address any further issues upon my return,
-Doug York
Monday, July 21, Zimmerman to York:
….And yes, I think you should refuse to take cases in the 311th because it is forum shopping. Someone can hire you if they don’t want to be in that court. There are eight other family courts and I’m sure you will make plenty of money if you refuse 311th cases. I guess we have a difference of philosophy. Good to know for the future.
Monday, July 21, York to Zimmerman:
This is a new filing. To possibly lose thousands upon thousands of dollars is so illogical I won’t even address that. Are you accusing me of forum shopping in this case?
-Doug York
Monday, July 21, Zimmerman to York:
No, I’m not accusing you of anything other than taking a case that you knew was in your fiance’s court and I think you should have refused or referred it because it creates the appearance of impropriety. Regardless of your motives (which appear to be money), the result is that a party can get out of the 311th if they hire you.
Monday, July 21, York to Zimmerman:
My motives are to assist my clients in their time of need. Your position I disagree with wholeheartedly as it would restrain clients from THEIR choice of attorneys. They have that right. Since I cannot understand your position we’ll leave it at that. Thank you for clearing up the fact that you have not accused me of impropriety and that I have done nothing ethically wrong. -Doug
Wednesday, July 23, Marcia Zimmerman to many attorneys:
You are receiving this because you may be interested in the email exchange which took place while Mr. York was vacationing in Europe with Judge Franklin.
The case at issue is not a new filing but has been pending in the 311th Court since December 3, 2013.
Marcia Zimmerman
____________________________________________________After I saw this e-mail exchange and talked to both Zimmerman and York (who returned my call from Europe), I wrote an article in the August 3 edition of Mongoose that provided advice to any lawyers whose relative was a family court judge. Here is part of what I wrote at the time, which I can only assume that York missed while on his three week European vacation with Judge Franklin:
So, here is my unsolicited advice to any lawyer whose spouse (or domestic partner or fiancé or parent or child or sibling) is a judge:
- If you file a new case and it lands in your spouse’s court, you keep the case and the case is again randomly reassigned. No one can say you are taking advantage of the system in that situation.
- If a client comes to you with a case that has been pending in your spouse’s court for a while and hearings have been held, you do not take the case unless all of the opposing attorneys have no problem with the fact that the case will be removed. The best practice is simply to turn away such cases because some attorneys may feel uncomfortable telling you “no” in a case where your spouse is the judge
- If a new case filed by someone else lands in your spouse’s court, no hearing has been held and the respondent wants to hire you, I think that as long as the client knows the case will be moved and as long as you are not delaying an already set hearing and only if opposing counsel agrees, you can take the case and it will be transferred to another court. If a hearing is already set and the opposition does not want it reset or wants the case to be in your spouse’s court, then you decline the case and send the prospective client to another lawyer.
. . . .
Any lawyer married to a judge enjoys a lot of benefits, including socializing with other judges and access to information most attorneys can only guess at (unless they read this newsletter). A lawyer married to a judge probably gets business just because people assume he or she has special clout in the court. On the other hand, being married to a judge has some downsides, including all of the boring political events that must be attended. A judge’s spouse cannot freely speak her mind on Facebook and certainly cannot appear to throw her weight around with other lawyers simply because she is married to a judge. Most importantly, the spouse of a judge owes it to the judge not to take any cases that might potentially embarrass the judge or cause people to think there is something improper going on.
A judge’s spouse must err on the side of caution and turn away cases to avoid the appearance of reverse forum shopping. It would be really bad if attorneys hired the lawyer-spouse as co-counsel just to get cases out of the judge-spouse’s court.