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Controversy Over Texas Attorneys Charging Questionable Fees in Wrongful Conviction Cases

by Matt Clarke

On September 17, 2009, Steven Charles Phillips, a former Texas prisoner who spent 24 years in prison on a rape charge before being exonerated in 2008, filed suit in Dallas County district court against his former attorney, Kevin Glasheen, and his attorney’s law firm, Glasheen, Valles, Inderman & DeHoyos LLP.

Phillips alleged that after he filed for over $4 million in compensation from the state for his wrongful incarceration, Glasheen sent him a bill for almost $1 million even though he had not provided meaningful legal services and did not even help Phillips fill out the compensation form.

According to Phillips’ lawsuit, he contacted Glasheen shortly after his release from prison, when he was living in difficult circumstances in Springfield, Missouri. The next day, Glasheen’s firm flew a representative to Springfield to speak with him. The representative gave Phillips a $3,400 loan and persuaded him to sign a contract for legal services with a contingency fee arrangement. At the time, Phillips was entitled to recover statutory compensation of $50,000 per year of wrongful incarceration without having to file suit. Glasheen failed to tell Phillips about that provision of state law.

Phillips learned about the statutory compensation and filed a one-page form requesting more than $4 million without the assistance of an attorney or anyone else. He then received a bill from Glasheen’s law firm for $1 million.

Phillips was attending the University of Texas at Arlington and taking a class from criminal justice professor John Stickels. He asked Stickels for help in firing Glasheen. Stickels suggested that he call Patti Gearhart Turner, dean of stu-dents at the Texas Wesleyan School of Law. She referred Phillips to her husband, attorney Randall E. Turner, who filed suit against Glasheen on Phillips’ behalf.

In response, Glasheen counter-sued Stickels and the Turners in district court, claiming tortuous interference with the contract between his firm and Phillips. Randall Turner countered that he hadn’t interfered with the contract.

“I didn’t induce [Phillips] to do anything,” said Turner. “His mind was made up.” He also stated that Glasheen’s suit was “all about greed,” adding,

“[t]his man is desperate to get his hands on a million dollars and will do anything to get it.”

Glasheen argued he had earned the $1 million fee because he spent November 2008 through May 2009 lobbying the state legislature on behalf of Phillips and eleven other exonerees he represented, and that his efforts led to the passage of HB 1736, which increased the statutory compensation from $50,000 to $80,000 per year for people who had been wrongly convicted, plus lifetime annual annuity payments of $80,000 and other benefits. [See: PLN, Dec. 2009, p.26].

State lawmakers backed up Glasheen’s lobbying claim. HB 1736’s author, state Representative Rafael Anchia, said Glasheen’s role in getting the legislation passed was pivotal. According to Rep. Anchia, Glasheen organized exonerees’ testimony before legislative committees and participated in strategy meetings about the bill.

“He worked tirelessly with the leadership in the House and Senate to make sure we developed a bill that we could live with and that provided just compensation for exonerees,” Anchia stated.
However, the contract between Glasheen and Phillips did not mention payment for political lobbying. Further, accord-ing to Texas legal ethics expert Charles Herring, § 305.022 of the Texas Government Code prohibits compensation for employment that is totally or partially contingent on getting legislation passed.

“He wasn’t hired to be a lobbyist. He was hired to do legal work,” said Randall Turner. “I think it’s pretty audacious for a lawyer to go down to Austin to lobby for a bill that will make him a lot of money and then try to claim the lobbying work was legal work.”

Not surprisingly, Glasheen disagreed. “It is true we didn’t move [Phillips’] individual case,” he acknowledged. “But the strategy resulted in a higher payout. The bulk of legal work was part of the lobbying effort. I disagree that that work should not be compensated.”

Judge Bradley S. Underwood of the 364th District Court in Lubbock granted Glasheen a temporary injunction against Stickels and the Turners, preventing them from contacting any of his other wrongly convicted clients. Phil-lips’ suit against Glasheen remains pending with a trial date of October 18, 2010. See: Phillips v. Glasheen, 95th District Court, Dallas County (TX), Case No. DC-09-12513.

Glasheen also filed suit in Travis County to stop the state comptroller from releasing $1 million of Phillips’ compensation payment, which Glasheen claims he is owed in fees. The comptroller had calculated Phillips’ payment at $1.2 million plus reduced annuity payments, since he was not cleared of six other felony offenses despite being declared innocent of the rape charge.

Another Texas attorney, Jeffrey Blackburn, has been drawn into the fee dispute involving Phillips and Glasheen. Blackburn, who serves as chief counsel for the Innocence Project of Texas (IPT), an organization he helped found, has received many accolades for his longstanding advocacy for the wrongly convicted.

For example, he was instrumental in the release of dozens of innocent defendants in an infamous case in Tulia, Texas in 1999, in which almost 15% of that town’s black population was prosecuted on spurious drug charges. Most of the Tulia defendants’ convictions were later reversed, resulting in an eventual $6 million settlement. [See: PLN, March 2003, p.24].

In his lawsuit against Glasheen, Phillips alleges that Blackburn misused his position with IPT to hand-pick cases with the greatest potential for compensation, then referred those cases to Glasheen in exchange for “kickbacks.” Glasheen admitted he had an agreement to split fees 60/40 with Blackburn. Of the $1 million that Glasheen charged for representing Phillips, Blackburn reportedly was to receive $412,936 as a “referring attorney.”

Patrick L. Waller, another Texas exoneree who served 16 years for aggravated robbery and aggravated kidnapping before being proven innocent in 2008, had hired Glasheen to help with his wrongful conviction lawsuit. After the Texas legislature raised the compensation rate to $80,000 per year of wrongful incarceration plus annual annuity payments, Waller dropped the idea of filing suit and accepted almost $1.3 million in compensation from the state. He paid $650,000 in fees to Glasheen with $130,000 of that amount earmarked for Blackburn, which he found troubling.

“Jeff Blackburn didn’t have nothing to do with my case. That’s what bugged me,” said Waller.
“It’s pretty low.”

Although fee sharing among attorneys is not illegal when agreed to by the client, Austin-based Texans for Public Justice (TPJ), a nonprofit watchdog group, said there was an appearance of impropriety in the arrangement between Black-burn and Glasheen.

“The Texas Innocence Project will suffer a huge loss of innocence if its top attorney worked by day as a pro bono attorney for the falsely accused while secretly angling by night for a cut of those exonerees’ monetary settlements,” said Andrew Wheat, TPJ’s research director.

Waller filed suit against Glasheen and Blackburn in December 2009, arguing the $650,000 in fees charged by Glasheen was excessive. Waller noted that Glasheen would get at least $8 million in fees from 12 wrongly convicted former prisoners he represented based on their compensation payments, which was more than any individual exoneree would receive. “I mean, come on, man,” said Waller. “He ended up with more money than any of us.”

“We were committed to take these [cases] all the way through to trial and appeal if need be,” Glasheen countered. “That we found a better solution than litigation isn’t something we ought to be criticized for doing.”

But even some of his supporters disagreed. “When I hear about folks potentially abusing and taking the money of the exonerees, it really breaks my heart,” said state Representative Rafael Anchia. “They should be helping the exonerees on a pro bono basis. The exonerees have suffered enough.”

Glasheen has since admitted that Blackburn was not entitled to fees in Phillips’ case, saying an error in the account-ing section of his law firm caused Blackburn to be incorrectly listed on the bill. “That’s a very convenient thing to say after you’ve been sued,” noted Randall Turner, Phillips’ attorney.

Those who defend Glasheen and Blackburn cite their years of tireless work to bring justice to the wrongly convicted, and believe the lawsuits must be based on a misunderstanding. However, others say the conflict has been brewing for years.

Former Innocence Project of Texas president Michelle Moore said she left IPT over her concerns about Blackburn profiting from exonerees while sitting on the organization’s board. Moore is a Dallas County public defender.

“It was bad enough to see private attorneys do it, taking 30 to 40 percent” in legal fees from exonerees, she observed. “But to see people who are supposed to be helping ... I have no problem with someone who does attorney’s work receiving a fee. But when it’s a one-page document the guy could fill out himself ....”

Glasheen described Phillips’ lawsuit as being a power struggle involving other lawyers who want to represent exonerees – presumably for lucrative fees such as those that he charges. “When there is a lot of cheese on the table, rats will come out and try to steal a piece of the cheese,” he remarked.

Patti Gearhart Turner, the wife of Phillips’ attorney representing him in the suit against Glasheen, resigned from IPT’s board and formed a separate innocence project at the Texas Wesleyan School of Law in Fort Worth.

Phillips’ criminal justice professor, John Stickels, also left the IPT, due to what he described as “philosophical differences.” He founded the Innocence Network at the University of Texas at Arlington, where his students review potential innocence cases. On March 3, 2010, two Texas prisoners convicted of murder, Chris Scott and Claude Simmons, were exonerated based on work by Stickels’ students. “I haven’t made a dime off of exonerees,” he said. “I don’t believe that’s right.”

But when millions of dollars are at stake, some lawyers, rightly or wrongly, are willing to profit from people who were wrongly convicted and spent years – sometimes decades – in prison. Then again, without getting paid, most attorneys would not represent exonerees in compensation cases in the first place.

Sources: Dallas Morning News, www.gritsforbreakfast.blogspot.com, www.law.com, www.cbs1tv.com, www.star-telegram.com, www.nbcdfw.com

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