 Alyssa Lemkuil is New Associate Judge
Alyssa Lemkuil is the new Associate Judge for the 308th District Court. Lemkuil was selected by Judge James Lombardino to replace Rick Ramos, who is now practicing law with Golda Jacob and Kelly Fritsch at a firm renamed Jacob, Fritsch & Ramos. Ramos can be contacted at rick@jfandrlaw.com.
Judge Lemkuil is the second AJ in the family as her husband, Daniel, also served as an Associate Judge. Alyssa Lemkuil received her law degree from the University of Houston in 1992. Her law practice has focused primarily on mediations and appellate law. Alyssa will bring a working mother's perspective and detailed knowledge about what is reversible error to the bench.
"Galveston County's Dirty Little Family Court Secrets"
Galveston County Judge Christopher Dupuy is accusing District Court Judge Jan Yarbrough and her part-time Associate Judge Suzanne Schwab Radcliffe of impropriety in a way that is itself totally improper and now Judge Dupuy has held Associate Judge Radcliffe in contempt. I am afraid I started the embarrassing mess by pointing out what I consider to be totally valid objections to a long-standing procedure in Galveston County that is just wrong (but not crooked). Now, this little newsletter is itself news (see front page Houston Chronicle article).
In Galveston County, 306th District Court Judge Yarbrough hears all CPS cases and Judge Radcliffe is the part-time Associate Judge for the 306th for CPS cases. Radcliffe also sometimes hears protective order applications and a few temporary order hearings from the 306th. A standing order signed by the then family court judges in October 2001 says all cases involving Radcliffe as a practicing attorney or her partners or associates must be transferred out of the 306th on a rotating basis to the county courts at law. None of the four judges who signed that order still hold office in Galveston County.
The last edition of my newsletter stated what I have been telling Galveston County judges for years - allowing a part time associate judge to also practice family law in this county is not a good idea. It is not enough to say "that is how we have done it for years" or point out that this particular Associate Judge, Suzanne Schwab Radcliffe, is a really good judge in CPS cases and she is an honest person (both of which are true). My arguments against this arrangement are based on pure policy reasons (see my letter to Galveston County Judges and County Commissioners below).
Before she was elected District Judge, Yarbrough was a two day a week Associate Judge and our mutual friend Pat Reilly was the other two day a week Associate Judge. I told both of them back then the same thing - it is not right to be a judge and practice law in the same county. However, that experience may explain why Judge Yarbrough sees nothing wrong with it. She enjoyed the prestige and referrals generated by serving two days a week as an excellent associate judge and enjoyed her private practice on the other three days a week practicing primarily in front of her friend and fellow associate judge, the sainted Patrick Reilly.
Things are different now in Galveston County. This year, all of Galveston County's elected judges voted to select Kerri Foley to be the Juvenile Master only on the condition she would not practice any sort of family law in this county. Our part-time (but might as well be full-time) family law Associate Judge Steve Baker does not practice law privately in this county.
I sent all of the judges a memo five years ago arguing that Radcliffe should not be allowed to be a part-time associate judge and practice law. I have never made a secret about my strong objections to this policy, but I continued to work with and practice in front of Judge Yarbrough and even occasionally Judge Radcliffe with no problems. The clear fact that those judges did not agree with my arguments caused no issues for my clients because they are fair judges (even on days they are annoyed with me).
This entire issue of Associate Judge Radcliffe has taken a nasty and totally unexpected turn after my last newsletter was published. In September, I represented a mother in a modification case in the 306th which was transferred without motion or hearing to County Court No. 3 because the father's attorney, Lori Laird, shares offices with Suzanne Radcliffe. The 306th takes the position that the office sharing arrangement creates a conflict of interest for Lori Laird and she cannot represent clients in the 306th. I filed a motion in County Court No. 3 to have the case transferred back to the 306th. My motion stated in part:
Petitioner should not get to choose which court his case is in simply by hiring the right law firm. Instead of transferring a case from the 306th because Associate Judge Radcliffe is associated with the firm Petitioner hired, the law firm should turn down the case because of the conflict. The 306th's policy of transferring cases because a party has hired Ms. Radcliffe or her firm is in effect putting the economic interests of the part-time associate judge and her associates ahead of the very clear provisions of the Texas Family Code regarding continuing exclusive jurisdiction.
For non-family law attorneys, it should be noted that in Texas, a court that enters a final child custody or support order then has exclusive, continuing jurisdiction over the child and must hear any modification cases involving that child unless the case is transferred to another Texas county or the court declines jurisdiction and defers to a court of another state or nation. This is why Judge Yarbrough is violating the law when she transfers modification cases out of her court just to allow Radcliffe to be the attorney on the case.
Judge Dupuy not only granted my motion and transferred the case back to the 306th, he also entered an order which disqualified Lori Laird as attorney and ordered her not to accept any new cases pending in the 306th. I filed a motion once the case was back in the 306th to reconsider the orders regarding my opposing counsel being disqualified and Judge Yarbrough rescinded those orders. My case is back in the court of continuing jurisdiction and I am working with Ms. Laird on settling the case, so I have not even thought about this entire issue in the last few weeks until I heard about the Tucker case.
The Tucker divorce seems to be a simple matter with no children. Judge Dupuy entered his usual temporary restraining order and appointed Shauna Correia to mediate before temporary orders but the parties reached agreement on their own through a Rule 11 agreement. Then, at 2:28 p.m. on October 3, 2012, Judge Dupuy on his own motion (sua sponte for you Latin speakers) signed the following order:
ORDER DISQUALIFYING SUZANNE RADCLIFFE
On this date, it was brought to the Court's attention that a County Family Law Associate, Suzanne Radcliffe, is attorney of record for Petitioner... The Court FINDS that such representation to be a clear conflict of interest between the attorney's role as advocate for her client, and the attorney's judicial obligations and responsibilities. As such, the Court FINDS that the Associate Judge must be DISQUALIFIED from this matter, and should be disqualified from representing family law clients in this County. See, e.g., Code of Judicial Conduct, Canons 1-4. It is ORDERED that Suzanne Radcliffe is DISQUALIFIED as attorney of record in this matter. The disqualified attorney shall make a good faith effort to return to the client all files and other documents belonging to the client. The Court also recommends that this attorney return all monies received, if any, to the client.
At 4:11 p.m. on October 3, Suzanne Radcliffe, who is (was?) representing the father in this divorce filed a motion to recuse Judge Dupuy. Radcliffe attached to her motion to recuse a copy of an email chain that includes an email from Judge Dupuy to the District Clerk and County Attorney entitled, "Investigation of Galveston County's Dirty Little Family Law Court Secrets." The email is attached to the motion and is part of the public record and is viewable on the District Clerk's website under cause number 12FD2386.
I nearly barfed when I read the outrageous e-mail from Dupuy attached to the motion to recuse and saw I was mentioned in it. Dupuy's e-mail points out that both Ms. Laird and I in the other case wrote that the 306th's policy regarding cases involving Ms. Radcliffe can violate the laws on exclusive continuing jurisdiction in family cases. Dupuy went on to paint an even more sinister picture by writing in his e-mail that many divorces may now be void because of a "scheme orchestrated in the 306th District Court..." Dupuy wrote:
In addition, if the judge's friend was merely paid a few thousand dollars per case, then hundreds-of-thousands of dollars may have been funneled through the court, or with the court's blessings, to the judge's friend and appointee, Suzanne Radcliffe, as "fees." Quite frankly, the legal exposure in this matter is great and it is alarming.
Dupuy requested from the District Clerk a list of all cases involving Radcliffe or Laird as an attorney and his email states that he is going to the Texas Rangers (presumably not the baseball team) and the "Texas Judiciary" with his concerns. Dupuy suggested to the County Attorney that many hundreds of citizens may have to be informed their divorces are void.
What Judge Dupuy has written in his e-mail is in important parts flat wrong and his e-mail about a fellow judge is unseemly and undignified. First, transferring divorce cases because of the attorneys involved does not violate the laws on continuing, exclusive jurisdiction over child custody cases which applies to later modification cases, not divorce cases. There is no way divorces could be later found void because they were transferred before the final decree of divorce was signed. There was no "scheme orchestrated in the 306th District Court..." It was simply a policy (albeit a flawed one). I know for a fact that Judge Yarbrough does not give her friends preferential treatment in her court as alleged by Dupuy or improperly "entertain ex-parte communications." All family judges must hear some ex-parte matters (like temporary ex-parte protective orders or restraining orders) and even Judge Dupuy does.
Alleging, as Dupuy, did that "hundreds of thousands of dollars may have been funneled through the court, or with the court's blessings, to the judge's friend and appointee" is an outrageous way to describe what is happening. While it appears Ms. Radcliffe probably has earned hundreds of thousands of dollars in over a hundred cases transferred out of the 306th to accommodate Radcliffe, those fees that she might not have been able to accept under different rules were not illegal or criminal in any way (just highly questionable). Unlike me, none of the opposing attorneys in Radcliffe's other cases objected to the transfers and certainly everyone clearly knew why the cases were being transferred. Nothing was done in secret and no one complained.
The notion that Judge Dupuy feels the need to report Judge Yarbrough to the Texas Rangers and "Texas Judiciary" [Texas Commission on Judicial Conduct?] is very ironic given his own past issues. On the other hand, the e-mail attached to the motion to recuse shows that District Clerk Doryn Danner Glenn forwarded the e-mail to her friend and former boss Judge Yarbrough and Yarbrough then forwarded it to Suzanne Radcliffe who sent it to Lori Laird who wrote,"I really can say I hate him." (a sequence which almost bolsters Dupuy's argument about the unseemly relationships).
Now, the issue has taken a more unusual turn after these developments:
- Radcliffe and Lori Laird have been filing identical motions to recuse Dupuy even in cases that were finalized months ago and which are not currently active (wonder if those former clients authorized those filings?)
- Dupuy in several cases, including 12FD2386, on October 10 signed orders holding Radcliffe in Contempt. How can he possibly hold Judge Radcliffe in contempt without notice and a hearing since she did not commit her act in his court in front of him? How can Radcliffe be ordered by one judge to stop practicing family law without a joint agreement of all the family court judges? How can Dupuy sign a contempt order in a closed case that was finalized months ago?
- Lori Laird started posting a lot of negative things about Judge Dupuy on her Facebook site and then mysteriously all of her Facebook postings about Dupuy were deleted as if Big Brother had stepped in (or someone with clout complained to Facebook). Laird has now started a blog at RemoveDupuy.com.
One immediate reaction to all this is to ask why the hell Judge Dupuy decided to take these actions? Did he imagine he would get good press? The Houston Chronicle story did not make him look good. Why would he ever write his inflammatory e-mail about his fellow judges knowing the Commission on Judicial Conduct was already looking at over a dozen complaints against him? Why would he take unilateral action without consulting with the other judges? Those other judges now probably do not want to touch this issue with a ten foot gavel. No matter what you have to say about Dupuy's past behavior, he is actually correct on this point: Suzanne Radcliffe should not be allowed to be both a judge and attorney in the same county in the same narrow field of law. Dupuy is just going about things in an outrageous and unwise way, but his point remains valid. I am just worried that the messenger will outshine the message. I still hope that Judge Yarbrough changes her policies involving her part-time associate judge and does not resist needed change even more because of these ridiculous allegations from Judge Dupuy. In the likely case Judge Yarbrough will not change the policy she herself benefitted from back in the day, I have written to all of the elected judges and the county commissioners who fund the part-time associate judge position (see below).
Judge Yarbrough remains in my mind one of the fairest, most ethical, most hard working, conscientious judges I have ever seen. She has always inspired me and encouraged me to stick with family law and her rulings in my own custody cases had a profound effect on me and my children. The work Yarbrough and I have done together on forms and procedures and seminars has benefitted our entire legal community. Judge Yarbrough has politely yet firmly disagreed with me over this associate judge issue for years, but she in no way deserves the ridiculous attacks from Dupuy.
For myself, I am beginning to recall why I stopped writing my last newsletter that was published for Galveston County attorneys for about a decade until 2004. Life can get complicated when an attorney plays at being a journalist in the same county he works in. However, right is still right and wrong is still wrong and our judicial system has to treat people fairly. If lawyers will not speak up about injustice, then who will?
Finally, I want to make one more point. There is a circle of attorneys who now make (or in the past made) the bulk of their income from CPS appointments and they are intensely loyal to Judges Radcliffe and Yarbrough. These good ladies are taking this issue very personally and demonizing Judge Dupuy for what he is doing and saying even as they remain too close to their judicial friends / patrons to see Dupuy has a valid point. I just want to remind everyone that we attorneys, unlike politicians, can advocate passionately for opposing positions while still respecting our opponents. We should not make or take arguments personally. Good people who are fighting for families and children and the integrity of our justice system should be able to disagree civilly without name calling or making outrageous, inflammatory allegations. To me, this is a disagreement with my friends and colleagues and, unlike Judge Dupuy, I hope we can all continue to treat each other like friends and colleagues.
My Letter to Galveston County Judges and County Commissioners
This e-mail was sent this week from me to all of the elected Judges in Galveston County and to the County Commissioners:
By now, everyone has heard about the dispute between Judge Dupuy and Judge Radcliffe. In my opinion, Judge Dupuy is right, he is just going about it the wrong way. I wrote the four family judges five years ago and laid out my arguments then why it is not right to allow an associate judge to also practice law in this county but nothing was done. Now, three of those four family court judges are gone. The argument that this is how it has been done in Galveston County for decades is not a proper defense of this system.
If indeed over 120 cases have been transferred from the 306th to allow Radcliffe to be the attorney on the case, that is probably over a half million in fees she has earned on those cases that she would otherwise have had to decline if the rule were that she cannot take cases pending in the 306th or which land in the 306th.
The simple solution is to do what all the judges voted to do when they hired Kerri Foley to be the Juvenile Master and adopt this simple policy:
An attorney appointed to be an associate judge or master serving the county, probate or district courts may not practice law in the county, probate or district courts of this county. This is a condition of employment as an associate judge or master.
If the commissioners or elected judges were to adopt this rule, the problem would be solved.
My arguments against allowing an associate judge to also practice law in this county include the following:
1. Allowing Judge Radcliffe to work for the 306th District Court two days a week and practice family law in this county on the other days has caused cases to be moved out of the 306th that by law should remain in that court. So, the Texas laws on exclusive continuing jurisdiction in child custody or support cases are being violated in some cases (but no divorces are void as Judge Dupuy has suggested).
2. It could lead to forum shopping and allow litigants who want away from Judge Yarbrough to get their wish by hiring Ms. Radcliffe (or even her office mate Ms. Laird).
3. The policy could also cause people to perceive our judicial system as less than fair ("holy crap, my wife hired a judge as her attorney and our temporary orders hearing will be heard by her fellow associate judge?").
4. I as a private attorney should not compete for clients in the Clear Lake community against another attorney who can accurately say she is a current family court judge in Galveston County. Ms. Radcliffe notes prominently on her law firm web site and her Linked-In web site (see attached) that she is the Associate Judge of the 306th District Court. Ms. Radcliffe's personal e-mail address she uses for her law firm is AJFLSSR@gmail.com which is an acronym for Associate Judge Family Law Suzanne Schwab-Radcliffe.
5. My opposing attorney who supposedly is in private practice should not be able to use the employee entrance and the same back elevator the judges use to get to hearings against me. My opposing attorney should not sit in on judges' meetings as a judge and then appear against me in front of her fellow associate judge.
Judge Yarbrough and Judge Radcliffe are good, honest judges, but the current arrangement is just not right and needs to be changed. I respect both judges and I feel I can advance my policy arguments civilly and respectfully without accusing them of wrong doing, which is the mistake Judge Dupuy has made. The current battle involving orders of disqualification and contempt and motions to recuse is unseemly and only makes things worse. This problem should be resolved by the actual decision makers - the elected judges and county commissioners. It is time for the decision makers, however, to do what is right and end this improper practice.
|
