filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
50,2023-02-24,MSJ,Kassab,Amended Trad + No-Evidence MSJ (3rd attempt),Kassab Defendants' Amended Motions for Traditional and No-Evidence Summary Judgment (Third Attempt),"Filed February 24, 2023 before Judge Christine Weems in the 281st Judicial District Court after the case was transferred from the 189th District Court. This is Kassab's third attempt at summary judgment, reiterating and expanding arguments from prior MSJs denied by Judge Dollinger on October 31, 2022. Kassab also adopts by reference co-defendant Nicholson's traditional MSJ filed August 19, 2022.",MSJ-4,N/A,Phase 4,2023-02-24_MSJ_Kassab-Amended-Trad-and-No-Evid-MSJ_FILED.pdf,"Grant Kassab's traditional and no-evidence motions for summary judgment and order that Pohl and Law Office of Michael A. Pohl, PLLC take nothing on their claims against Lance Christopher Kassab and The Kassab Law Firm","2/24/2023 1:36 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73091211
By: Bonnie Lugo
Filed: 2/24/2023 1:36 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 281st JUDICIALk DISTRICT
THE KASSAB DEFENDANTS’ AMENDED MOTIONCS FOR
TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT
TO THE HONORABLE JUDGE CHRISTINE WEEMS: t
COME NOW, Defendants, Lance Christopher Kassab and Lance Christopher
Kassab, P.C. d/b/a/ The Kassab Law Firm and file theis, their Motions for Traditional
and No-Evidence Summary Judgment, and woulud respectfully show the following.
PRELUDE
This lawsuit is nothing more thaan a retaliatory suit brought by Michael A.
Pohl and his law firm, Law Office of Michael A. Pohl, PLLC (“Pohl”) against Lance
Christopher Kassab and Lancee Christopher Kassab, P.C. d/b/a/ The Kassab Law
Firm (“Kassab”). Kassab refpresented more than 400 clients in lawsuits against
Pohl due to his illegal and unethical solicitation of these clients. It is undisputed
that Pohl hired and paid runners more than five million dollars to illegally obtain
clients stemminig from catastrophic auto accidents and the BP Deepwater Horizon
litigation. o
Based upon Pohl’s illegal and unethical solicitation of clients, Kassab filed
four separate lawsuits against Pohl for civil barratry and negligence. In addition,
as mandated by the Texas Disciplinary Rules of Professional Conduct, Rule 8.03,
Kassab filed and helped his clients initiate several grievance proceedings, causing
the State Bar of Texas to investigate the alleged barratry, which is prohibited by
the Texas Disciplinary Rules of Professional Conduct and the Texas Penal Code. In
response, Pohl filed this lawsuit against Kassab, alleging claims of conversion, theft
of trade secrets and civil conspiracy, claiming Kassab conspired with okthers to steal
Pohl’s property and solicit his former clients or prospective clienCts to sue him for
barratry.1 Pohl claims his defense costs to defend against the barratry litigation
and grievances as his damages. The absurdity of Pohl’s claiims is only surpassed by
the absurdity of his claimed damages. Pohl’s claims were brought in bad faith and
should be dismissed with prejudice.
SUMMARY
Pohl got caught committing illegall and unethical barratry and now wants
Kassab, who brought the barratry litMigation and grievances against Pohl, to pay for
his legal fees for defending against the barratry claims and grievances. But Pohl’s
claims against Kassab are bairred as a matter of law and he has no evidence to
support various elements of his causes of action because:
• Pohl’s claims aore predicated on Kassab’s filing of a grievance against
Pohl for which Kassab has absolute and unqualified immunity
pursuant tol Rule 17.09 of the Texas Rules of Disciplinary Procedure.
• Pohl’s cilaims against Kassab are barred by the judicial proceedings
priviolege because they arise out of communications that Kassab made
in prospective (solicitation letters) and actual judicial proceedings (the
barratry litigation and grievance process).
• Pohl’s claims against Kassab are barred by attorney immunity because
an attorney does not have a right of recovery, under any cause of action
against another attorney arising from conduct the second attorney
1 Plaintiffs’ Original Petition, ¶¶ 19-28.
engaged in as part of the discharge of his duties in representing a
party.
• Pohl’s claims are barred by limitations because they accrued, if at all,
in the summer of 2014 as Pohl testified under oath, and Pohl did not
file suit against Kassab until August 2018, more than four years later.
• Pohl’s TUTSA claim is conclusively negated because his allegeed trade
secrets were not actually kept secret. Pohl’s claims also fCail because
Pohl does not own the purportedly stolen property and ttrade secrets
which consist of client files which, as a matter of law, Pohl does not
own. t
• Pohl’s illegal acts (barratry and unauthorized practice of law) preclude
any form of recovery against the whistleblowesr (Kassab) because his
acts are inexorably intertwined with Pohl’s creimes.
• Pohl is not permitted to recover as damages the attorney’s fees he
incurred in the four barratry lawsuits and/or disciplinary grievances.
• Pohl has no evidence to support thalt he owned or had possession of the
property or entitlement to possesasion of any of the allegedly converted
property or stolen property. M
• Pohl has no evidence that the Kassab Defendants unlawfully and
without authorization assumed and exercised control over the property
to the exclusion of, or iinconsistent with Pohl’s rights as an alleged
owner. O
• Pohl has no evidpence that he demanded return of the property from
the Kassab Deofendants, nor does Pohl have any evidence that the
Kassab Defendants refused to return any property.
• Pohl can c niot produce evidence as to the damages for the property’s loss
of use fdiuring the time of its detention or the value of the allegedly
conveorted property and never has produced such evidence.
• Pohl has no evidence that (1) the Kassab Defendants were involved in
a combination of two or more persons; (2) that any persons involved in
the alleged conspiracy sought to accomplish an object or course of
action; (3) the persons involved reached a meeting of the minds on the
object or course of action; (4) one or more unlawful, overt acts were
taken in pursuance of the object or course of action; or (5) damages
occurred as a proximate result.
JOINDER AND INCORPORATION BY REFERENCE
Defendants, Tina Nicholson and Baker Nicholson, LLP (“Nicholson”) moved
for traditional summary judgment on August 19, 2022 (“the Nicholson Motion”).
Kassab adopts the arguments set forth in the Nicholson Motion andk all evidence
cited therein. See TEX. R. CIV. P. 58 (“Statements in a pleading mCay be adopted by
reference in a different part of the same pleading or in another pleading or in any
motion, so long as the pleading containing such statementsi has not been superseded
by an amendment as provided by Rule 65 pursuant to Texas Rule of Civil Procedure
58.”); Lockett v. HB Zachry Co., 285 S.W.3d 63, 72 (Tex. App.—Houston [1st Dist.]
2009, no pet.) (“Texas courts have recognized adoption of a co-party's motion for
summary judgment as a procedurally leglitimate practice.”). Reference to exhibits
attached to the Nicholson Motion willM be “Nicholson Ex. [number], [description].”
POHL’S BARRATRY SCHEME
Pohl engages in an iillicit barratry scheme to personally solicit
BP clients and victimfs of catastrophic auto accidents.
Michael Pohl and his law firm retained two non-lawyers, Scott Walker and
Kirk Ladner, and their company, Precision Marketing Group (“Precision”), to
“recruit clients fior [Pohl] to represent against BP”2 and provide “marking services”
to auto accoident victims.3 Walker testified that although he and Pohl called it
“marketing services” or “marketing money” it was “clear to [him] it was barratry.”4
In fact, Walker considered himself and his company “a pass-through for barratry
2 Exhibit 2, General Operating Agreement; Exhibit 3-A, 2018 Deposition of Scott Walker, p. 19.
3 Exhibit 2, General Operating Agreement; Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 605-07.
4 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 149.
money.”5 All total, Walker, Ladner and Precision Marketing received over $5 million
in “barratry pass-through money” from Pohl and other lawyers to solicit accident
victims and potential clients with claims, both auto-accident victims and those
involved in the BP Deepwater Horizon litigation.6 They would use this kmoney to pay
contract workers to solicit clients.7 They would locate and instrucCt contract workers
on how to accomplish the solicitation.8 They trained “40 or 50 people” on how to “go
out and solicit contracts.”9 i
Walker would “get leads from a variety of sources” including “from Michael
Pohl” and then he and Ladner, or one of their employees, would go try to “find the
family who had lost a loved one” and “just do marketing” to “let them know that
there was help available.”10 The “help” lavailable would be offering the victims
money from Helping Hands FinancinMg, LLC (“Helping Hands Financing”).11 Helping
Hands Financing is owned by Pohl’s wife, Donalda Pohl (“Donalda”), and operated
by her cousin, Jaimes.12 If onie of the clients Precision Marketing solicited “needed
monetary help” they would be referred to Jaimes and Jaimes would “work with
them to -- to help theom.”13 The funds from Helping Hands Financing to pay to the
auto accident victilms “would have come through Edgar Jaimes.”14 In other words, if
5 Exhibit U3-B, 2016 Deposition of Scott Walker, p. 197:6-7.
6 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 73:21-25; 74:1-25; 75-1-15.
7 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 199.
8 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 77-78.
9 Exhibit 3-B, 2016 Deposition of Scott Walker, p. 196-197.
10 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 142-143.
11 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 734-735.
12 Exhibit 4, October 2018 Deposition of Edgar Jaimes, p. 28.
13 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 734-735.
14 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 201-203.
Walker or his team needed money to induce the auto accident victims, he would talk
to Jaimes and seek his approval.15
Walker testified that Pohl would send him leads on the auto accident cases
because he knew that Walker and Ladner “could go out and get tkhose type of
cases.”16 Either Ladner would go to solicit the clients, or Cthey would send
Magdalena Santana (“Magdalena”), her brother Florian “Jay” Santana (“Florian”),
or one of their other employees.17 Walker testified that ithese folks working for
Precision Marketing were soliciting the victims “on behalf of Mr. Pohl.”18 Walker
and his team solicited more than 50 auto accident cases for Pohl.19 Walker always
kept Pohl informed on what he and his team were doing.20
Walker testified that the runnersl who solicited the clients would get “a
bonus” if they got the client to sign Ma contract.21 Walker testified that he and his
team would receive the bonus from either Helping Hands Financing at the direction
of Jaimes or Pohl and his lawi firm.22 The payment to the runner would come from
Precision Marketing, but Walker would then “turn in an amount that [they] spent
during the that weeko … to Mr. Pohl’s office.”23 Either Pohl or Jaimes would then
reimburse Precisilon Marketing.24 Financials obtained from Precision Marketing
evidence this ifact, reflecting incoming transfers from Pohl’s law firm or Helping
15 ExhibitU 3-A, 2018 Deposition of Scott Walker, pp. 203-204, 207-208.
16 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 146-148.
17 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 146-148.
18 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 152.
19 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 148-151.
20 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 153.
21 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 158-160, 556.
22 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 556.
23 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 160.
24 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 160-161, 556.
Hands Financing with payments made to various runners.25 At times, Pohl gave
direction as to some of the bonuses or fees that Precision Marketing paid to the
runners.26 And although Walker did not get “permission, per se” from Pohl to make
the specific payments to the runners, he “would tell [Pohl] after tkhe fact what
[Precision Marketing] had spent that week.”27 C
One runner, Magdalena Santana, exposes the barratry scheme
despite being paid $50,000 by Pohl to keep quiet. t
Magdalena personally solicited two of the plaintiffs who would ultimately sue
Pohl for barratry: Heraclite Bikumbu (and his minoer children) and Raymond Butts.
In her September 24, 2016 affidavit, Magdaleuna testified that Pohl sent her on
“dozens and dozens of car wreck cases all over the country.”28 Pohl would email
Magdalena the link of news coverage daepicting the accident and ask her “to go to
the victim or the victim’s family and try to get them to sign up with him.”29 Pohl
offered to give Magdalena “$5,0e00 per case that [she] signed, plus a percentage of
his attorney’s fees.”30 Mag
daflena was advised by Pohl to “be persistent even if the
family ... rejected [her].”31 Magdalena was instructed by Pohl to “approach the
victims and their families while they were vulnerable, in the emergency room, their
hospital rooms ior at the funerals.”32 Pohl told Santana that minorities “were
25 Exhibit 5, Precision Marketing Group Financials.
26 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 161-162.
27 Exhibit 3-A, 2018 Deposition of Scott Walker, pp. 162.
28 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
29 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
30 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 18.
31 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
32 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
especially vulnerable since they tended not to know that the law prohibited
barratry.”33 According to Pohl, they “were easier to sign up.”34
Pohl would give Magdalena “money to give to the victims or their families”
but “only if they agreed to sign a Pohl representation contract.”35 kPohl advised
Santana that the money was a “foot in the door” but instructeCd Santana not to
mention that she was there on behalf of a lawyer “until after they agreed to take the
money.”36 “If the client agreed to hire Pohl, then [Magdalenia] was to have the client
sign a ‘Helping Hands’ contract.”37 Pohl would then give Magdalena the money to
pay the client “from his own Helping Hands company.”38 When Magdalena
questioned this, Pohl told her that it “was illegal for him to pay [her] directly for
cases, and that’s why the money had to go lthrough some company.”39
Pohl may take the position thaMt Magdalena retracted this affidavit through a
subsequent December 19, 2017 affidavit. However, this purported retraction is
likely the result of Pohl payingi Magdalena to provide testimony, which is something
they have done in the past.40 In fact, Jaimes testified that on one occasion Pohl sent
him to Florida witho a case filled with $50,000 cash to give to Magdalena in
exchange for her sligning an statement for him.41 Jaimes testified that Magdalena
33 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19 (emphasis added).
34 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 19.
35 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 17.
36 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
37 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
38 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 24.
39 Exhibit 6, September 24, 2016 Affidavit of Magdalena Santana, ¶ 23.
40 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 371-373.
41 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 371-373.
would only get the money if she signed the statement.42 Jaimes testified that
Magdalena signed the signed the statement and got the money.43
Magdalena went into more detail about this in her deposition. Magdalena
testified that that the statement was an agreement for her to keep qkuiet and not
charge Pohl with any wrongdoing or criminal or unethical condCuct.44 Magdalena
testified that Pohl paid her $50,000 cash to sign this statement, which was
delivered by Jaimes in three bags marked “trick or treat.i”45 Magdalena reiterated
that if she didn’t sign the gag agreement, she wouldn’t get the money from Pohl.46
Magdalena attempted to indicate on the agreement that she was receiving $50,000
to keep quiet, but Jaimes told her Pohl demanded that she state she only received
nominal consideration, like $100.47 Magdallena did not write the statement but “just
signed it”48 because she felt she waMs “forced to sign” it49 while “under duress.”50
Magdalena’s December 19, 2017 affidavit is likely the result of similar duress and
purchased testimony. i
Regardless, nowhere in Magdalena’s December 19th affidavit does she state
the testimony in her oformer affidavit is untrue, only that she does not “agree with”
it and that the alffidavit is not “reliable.”51 Although Magdalena states in her
December 19thi affidavit that her prior affidavit was drafted by a lawyer, Magdalena
42 ExhibitU 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
43 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
44 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 153.
45 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 122-127.
46 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 131.
47 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 346.
48 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 153.
49 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 155.
50 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 309.
51 Exhibit 9, December 19, 2017 Affidavit of Magdalena Santana.
testified in her deposition that the September 24th affidavit was created voluntarily
with her own “testimony.”52 Magdalena testified that, unlike with Pohl, she was not
paid and had never been promised any money to provide the testimony in the
September 24th affidavit.53 Magdalena reiterated to counsel fork Pohl, Billy
Shepherd, that she was there in her deposition to tell the truth Cand would not be
bullied by his questioning or his efforts to confuse her.54
Regardless, Magdalena confirmed most of the factis set forth in her initial
affidavit in her deposition55 and this deposition testimony was not retracted.56
There, Magdalena confirmed that she was hired by Pohl to solicit auto accident
cases, the first one being an accident where a woman and her unborn child lost their
lives.57 Magdalena was instructed by Wlalker, who was instructed by Pohl, to
personally visit the mother of theM deceased and sign her up to sue the tire
manufacturer and, if she succeeded, Pohl would pay her $5,000.58 Magdalena visited
the funeral of the deceased iand got the family to feel comfortable with her.59
Although the mother was grieving, Pohl told Magdalena: “take no prisoners, this is
a cut throat businesso, you get in there and you do whatever it takes to get this
52 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 270-271.
53 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 276-278.
54 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 176.
55 See, generally, Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II.
56 See Exhibit 9, December 19, 2017 Affidavit of Magdalena Santana.
57 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 37.
58 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 37-38.
59 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 37-38.
10
client.”60 The solicitation was successful after Pohl gave Magdalena $2,000 to “give
to the client to convince her into signing over with the firm.”61
After that, Magdalena attempted to solicit about “forty to fifty” auto accident
cases for Pohl in multiple states from Texas to Florida.62 About fifteekn to eighteen
cases were actually signed up.63 Just like Walker, Magdalena tCestified that Pohl
would send her a web link with information about the accident and where the
potential client may be found and she would hit the grounid running.64 Magdalena
solicited clients for Pohl in “hospitals, funeral homes, you name it.”65 Pohl
instructed Magdalena to target minorities because they are “unrecognized to the
law” and “they don’t know the law.”66 In an effort to circumvent the law, Magdalena
was instructed to have the client call Pohll so that it would look like the client made
the initial contact with the lawyer.6M7 Magdalena would offer the clients money to
sign with Pohl but had explicit instructions from Pohl: “If they don't sign they don't
get no money.”68 Magdalena ireiterated, “no signature, no money.”69 Magdalena
testified in her deposition that she was paid $2,500 for every client she signed up
and was “promised ao percentage in the back end” by Pohl and Walker.70 Pohl told
60 Exhibit 8,n November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 39.
61 ExhibitU 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 40.
62 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 43.
63 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 46-47.
64 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 54.
65 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 52.
66 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 52.
67 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 60.
68 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 42.
69 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 66.
70 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 47.
11
Magdalena that the money would have to go through Walker’s company Precision
Marketing because it “was illegal for him to give [her] the money directly.”71
After soliciting several cases, Magdalena asked Pohl to give her the money
she was “owed” so she could “leave for good” to the Middle East tok care for her
father.72 Magdalena asked Pohl to “think it thru” if he “really wCanted to take the
bad route,” stating “I will go to the attorney General Texas bar ten [sic] bar Florida
bar I’m not giving up … I want my money and if I have to miove mountains with the
justice dept so be it.”73
Magdalena sent another email to Ladner that was forwarded by Walker and
addressed to Pohl, stating she was owed money on the cases she had solicited for
them: l
74
71 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II, p. 72.
72 Exhibit 10, April 21, 2014 Email.
73 Exhibit 10, April 21, 2014 Email.
74 Exhibit 11, May 7, 2014 Email Exchange.
12
When Pohl did not respond, Magdalena completed a questionnaire on Pohl’s law
firm website, stating “the FBI” wanted to know the “link between helping hands
and Scott Walker [and] Michael [P]ohl” and claiming that Pohl owed her “monies for
securing victims of accident for him” and questioning how she is to “ckollect monies
owed with Out contracting [sic] The Texas bar[.]”75 C
It was these threats that caused Pohl to agree to pay Magdalena, but only if
she promised to keep quiet.76 Magdalena received the $50i,000 cash but didn’t keep
quiet. On September 1, 2014. Magdalena sent another email to Pohl through his
website requesting more money:
Michael now I have on top of reporters calling me I had a call from
attorney general. The money given to me by Edgar [Jaimes] was to
keep my mouth shut. Not what wals owed that’s what happens when
you ruined my life. If I get supenaa a [sic] don’t know what will happen.
Send me another 50 pls.77 M
Magdalena continued running cases for Pohl and sending him emails requesting
payment on the cases she soliciited.78
Another runner, Kenneth Talley, exposes the barratry scheme.
Another runnero was “Coach” Kenneth Talley (“Talley”), solicited over 800 BP
cases and 20 autol accident cases for Pohl,79 including several families who would
ultimately suei Pohl for barratry: Mark Cheatham, Sr., Mark Cheatham, Jr., Luella
Miller, Mae Berry and Arthur Speck.
75 Exhibit 12, May 20, 2014 Contact Form.
76 Exhibit 7, June 2018 Deposition of Edgar Jaimes, pp. 373-374.
77 Exhibit 13, September 1, 2014 Contact Form.
78 Exhibit 14, February 5, 2015 Email.
79 Exhibit 15, Deposition of Kenneth Talley, p. 87.
13
Talley testified that he was first hired in relation to BP claims to find “folks
that lost money due to the oil spill” and “sign them up” and “get a fee for it.”80 Talley
went to work “knocking on doors” looking for potential claimants for Pohl and his
partner in the BP litigation, Jimmy Williamson.81 Talley solicited and ksigned up for
Pohl and Williamson more than 800 BP claims.82 Talley was paidC between $75 and
$350 for each BP client he signed up.83
Talley eventually switched to soliciting auto accidient victims, “calling on
folks that had bad accidents.” 84 Talley recalls that the first client he solicited was in
“the hospital in intensive care.”85 Talley carried with him up to $1,000 to pay the
accident victims to “help them with problems” but only once they “were signed
up.”86 Talley kept a list of all the auto aclcident cases he solicited, including cases
involving the Cheathams, Berry anMd Speck.87 Talley followed a checklist that
instructed him to, among other things, bring flowers to the initial hospital visit (but
to spend no more than $50) aind to offer the victims money but to “make sure the
funding schedule” from Helping Hands Financing “is filled out properly before
releasing any cash.”8o8 Talley would advise the victims that he had attorneys who
could help them, alnd that one of those attorneys was Pohl.89 Talley was paid a fee of
$1,400 plus hiis expenses by Pohl, through Walker, for any auto accident case he
80 ExhibitU 15, Deposition of Kenneth Talley, p. 10.
81 Exhibit 15, Deposition of Kenneth Talley, p. 10-11.
82 Exhibit 15, Deposition of Kenneth Talley, p. 11.
83 Exhibit 15, Deposition of Kenneth Talley, p. 19.
84 Exhibit 15, Deposition of Kenneth Talley, p. 37.
85 Exhibit 15, Deposition of Kenneth Talley, p. 37.
86 Exhibit 15, Deposition of Kenneth Talley, p. 38.
87 Exhibit 15, Deposition of Kenneth Talley, p. 43-44; Exhibit 15-A, Talley Deposition Exhibit 165.
88 Exhibit 15-B, Talley Deposition Exhibit 168.
89 Exhibit 15, Deposition of Kenneth Talley, p. 47.
14
solicited.90 On some cases, Talley was to receive a portion of the fee paid to Helping
Hands out of Pohl’s attorney’s fees.91 Talley discussed with Pohl the “percentage of
settlements” he was to receive from the cases he solicited and Pohl told Talley that
the money was being placed in an “escrow account” for him.92 When aksked whether
Pohl knew he was getting paid to “contact vehicle accidentC victims,” Talley
responded, “the money was coming from Edgar [Jaimes] who worked for him.”93
Although his paycheck was from Walker’s company, “the ifunding came by way of
Edgar [Jaimes].”94
Personally soliciting clients for Pohl became so frequent that Talley began
carrying with him blank Pohl contracts to each solicitation.95 Talley would refer the
potential clients to “attorneys out of Houslton that were the best at handling these
types of accidents” and would offer tMo give the potential clients “money up front.”96
Talley would have no “reason not to mention Mr. Pohl’s name” during the
solicitation.97 Talley would neiver recommend any lawyers other than Pohl.98 Talley
would not tell the clients that he was getting paid to solicit them.99 Talley would
present a Pohl contraoct to the potential client.100 If the client did not agree to hire
90 Exhibit 15n, Deposition of Kenneth Talley, p. 47-48.
91 ExhibitU 15, Deposition of Kenneth Talley, p. 97-98; 102.
92 Exhibit 15, Deposition of Kenneth Talley, p. 99.
93 Exhibit 15, Deposition of Kenneth Talley, p. 100.
94 Exhibit 15, Deposition of Kenneth Talley, p. 100.
95 Exhibit 15, Deposition of Kenneth Talley, p. 49.
96 Exhibit 15, Deposition of Kenneth Talley, p. 54.
97 Exhibit 15, Deposition of Kenneth Talley, p. 108.
98 Exhibit 15, Deposition of Kenneth Talley, p. 59.
99 Exhibit 15, Deposition of Kenneth Talley, p. 58; 109.
100 Exhibit 15, Deposition of Kenneth Talley, p. 89.
15
Pohl, the clients would not get the money.101 Talley testified that Jaimes and
Donalda (the operators of Helping Hands Financing) would send him the money.102
Both Talley and Pohl knew that what they were doing was illegal. In one
instance, Talley was “run out of town” while soliciting clients for Pkohl.103 Talley
testified during the attempted solicitation he was told by a “lawCyer or policeman”
that “it was against the law what [he] was doing.”104 Talley mentioned this to Pohl
and Pohl told him “you’ve just got to leave...some people youi can’t help.”105
Pohl illegally solicited several clients who would later hire
Kassab to sue Pohl for barratry. e
One of the victims solicited by Talley aut the instruction of Pohl was Mae
Berry. Berry is the mother of Johnny Berry, a boy who died in a tragic auto accident
on or about August 17, 2014. 106 Withian days of the accident, Berry was visited at
her home by Talley.107 The visit was unsolicited.108 Talley told Berry that he was
with “Helping Hands” and broueght her a gift basket.109 Talley suggested that she
may have a lawsuit againstf the make of the vehicle that Johnny was driving and
told her he knew an attorney out of Texas named Pohl who could represent her.110
Berry had never spoken with Talley or Pohl prior to this date and she did not
101 ExhibiUt 15, Deposition of Kenneth Talley, p. 58-59.
102 Exhibit 15, Deposition of Kenneth Talley, p. 86.
103 Exhibit 15, Deposition of Kenneth Talley, p. 84.
104 Exhibit 15, Deposition of Kenneth Talley, p. 84.
105 Exhibit 15, Deposition of Kenneth Talley, p. 85.
106 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
107 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
108 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
109 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
110 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
16
request Talley to visit with her about the accident or any potential lawsuit.111 Talley
could see that Berry was morning over the loss of Johnny and offered her $500 to
pay for her son’s funeral, but only if she agreed to hire Pohl.112 In need of the money
to burry Johnny, Berry agreed to hire Pohl.113 Walker sent Pohl an emkail on August
21, 2014 forwarding the Helping Hands Financing documents anCd stating, “Coach
Ken will be getting the Pohl contract signed this afternoon.”114 However, Pohl never
ended up pursuing Berry’s case.115 i
Talley himself testified to this solicitation. Talley admits to soliciting Berry at
her home just three days after the accident that took Johnny’s life.116 Talley testifies
that he told Berry that Helping Hands “had attorneys out of Houston that were the
best at handling these types of accidents” alnd that he gave Berry $500 “up front.”117
Talley solicited Berry after he got a cMall from Ladner who told him that a “kid was
killed and it should be a good case” and that “we needed to go check it out.”118 Talley
testified that he was paid $25i0 to solicit Berry as a client and was also reimbursed
from Helping Hands the $500 he paid to Berry.119 Talley never told Berry he was
getting paid to makeo contact with her.120 Berry did not know that the solicitation
was wrongful or claused her legal injury until sometime in 2017 when she received
111 Exhibit 1n6, September 17, 2018 Declaration of Mae Berry.
112 ExhibiUt 16, September 17, 2018 Declaration of Mae Berry.
113 Exhibit 16, September 17, 2018 Declaration of Mae Berry.
114 Exhibit 17, August 21, 2014 Email re Mae Berry.
115 Exhibit 15, Deposition of Kenneth Talley, p. 56.
116 Exhibit 15, Deposition of Kenneth Talley, p. 51-53, 55 (“Q. Okay. So you approached her three
days after the accident. A. Yes, ma’am.”).
117 Exhibit 15, Deposition of Kenneth Talley, p. 54.
118 Exhibit 15, Deposition of Kenneth Talley, p. 55.
119 Exhibit 15, Deposition of Kenneth Talley, p. 57-58; see also Exhibit 5, Precision Financials.
120 Exhibit 15, Deposition of Kenneth Talley, p. 58.
17
an advertisement from the undersigned counsel notifying her of her potential
injury.121
Talley also solicited Arthur and Lisa Speck to hire Pohl. The Specks are the
parents of is Rebecca Speck, an eighteen year old who died in July okf 2010 as the
result of a tragic auto accident.122 Talley testified that he was nCotified about this
case by Ladner who told him “there’s a case in the backyard he wanted [him] to go
pursue.”123 Talley found the Specks’ address and he “weint and knocked on their
door.”124 The visit by Talley was unsolicited.125 The Specks answered, and Talley
told them he was with Helping Hands and offered them $1,000 cash if they would
hire Pohl to pursue their claim.126 Talley testified that he “didn’t have any reason
not to mention Mr. Pohl’s name” at this vilsit because he “knew he was the attorney
handling things for us.”127 The SpeckMs agreed, and signed two contracts with Pohl’s
law firm and funding agreements with Helping Hands.128 Sometime in August of
2014, the Specks received a iletter from Pohl stating he would not pursue the
claims.129 Talley never told the Specks that anyone was paying him to make contact
with them.130 o
121 Exhibit 1n6, September 17, 2018 Declaration of Mae Berry.
122 ExhibiUt 18, September 14, 2018 Declaration of Arthur Speck.
123 Exhibit 15, Deposition of Kenneth Talley, p. 105.
124 Exhibit 15, Deposition of Kenneth Talley, p. 105.
125 Exhibit 18, September 14, 2018 Declaration of Arthur Speck.
126 Exhibit 15, Deposition of Kenneth Talley, p. 107-108.
127 Exhibit 15, Deposition of Kenneth Talley, p. 108.
128 Exhibit 18, September 14, 2018 Declaration of Arthur Speck, at Exhibit 18-A, Speck Contracts
and Exhibit 18-B, Speck Funding Agreement.
129 Exhibit 18, September 14, 2018 Declaration of Arthur Speck,
130 Exhibit 15, Deposition of Kenneth Talley, p. 109.
18
Alphonse Bethley and Sandra Johnson are the biological parents of Ashley
Bethley.131 Ahsley was killed when she lost control of her vehicle and it struck a
utility pole.132 Ashley was only twenty-four years old.133 In July of 2014, Ladner
personally solicited the Bethleys at their home to hire Pohl.134 The viksit by Ladner
was unsolicited.135 The Bethleys did not request Ladner to visit tChem, nor did they
seek out the legal services of Pohl.136 Ladner offered them money if they would hire
Pohl to pursue their claims.137 The Bethleys agreed, andi signed a blank contract
with Pohl and his law firm that was provided to them by Ladner.138 In exchange,
Ladner and Walker agreed to share $5,000 for every $1,000,000 of the received
settlement from the Bethleys’ lawsuit.139 Ladner emailed Pohl and Jaimes facts
concerning these newly solicited clients land also stated that he spoke with the
mother of the passenger of the vehicleM “and will follow up on signing that family.”140
Sometime in August of 2015, however, the Bethleys received a letter from
Pohl stating he would not bie pursuing their claim.141 Years later, in 2017, the
Bethleys received an advertisement from the undersigned counsel notifying them
the way they were coontacted by Ladner and solicited to hire Pohl may have been
131 Exhibit 19,o September 17, 2018 Declaration of Alphonse Bethley.
132 Exhibit 1n9, September 17, 2018 Declaration of Alphonse Bethley.
133 ExhibiUt 19, September 17, 2018 Declaration of Alphonse Bethley.
134 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
135 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
136 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
137 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
138 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley, and Exhibit 19-A, Bethley Pohl
Contract.
139 Exhibit 20, Bethley Distribution Agreement.
140 Exhibit 21, July 23, 2014 Email re Ashley Bethley.
141 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
19
wrongful and may have caused them legal injury.142 Prior to receiving this
advertisement, the Bethleys did not know that the way they were contacted was
wrongful, or that it caused them legal injury or harm.143
Heraclite Bikumbu and his two minor children Plovyt and Dakvid were also
victims of Pohl’s illegal solicitation scheme. On or about July 6, 20C13, Bikumbu and
his children were traveling with relatives from Missouri to Iowa when the rear tire
on their van blew out, causing the van to enter the mediani and roll several times.144
Bikumbu and his children were hospitalized with serious injuries.145 Their relative,
Simon Kumeso, was killed in the accident.146
Just days after the accident, Magdalena and her brother Florian (also known
as Jay) showed up at the hospital rooml to personally solicit Bikumbu and his
children to hire Pohl.147 The SantanMas brought Bikumbu and his children gifts,
including clothes, and stated they were with Helping Hands and worked for Pohl.148
The Santanas told Bikumbui that he had a viable lawsuit against the tire
manufacturer and offered Bikumbu $1,000 if he would sign a contract with Pohl to
represent him and hiso children in the claim.149 The Santanas told Bikumbu that he
142 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
143 Exhibit 19, September 17, 2018 Declaration of Alphonse Bethley.
144 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
145 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
146 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
147 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
148 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
149 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
20
would get the money only if he signed a contract of representation.150 Bikumbu
agreed and signed a proposed contract with Pohl.151
A friend of the relative who died, Nsalambi Kkongolo, emailed Pohl days
after the accident confirming the solicitation by the Santanas: k
I am helping a family whose father (Mr. Simon Kumeso) wCas killed in
a car accident. I was then contacted my [sic] Mr. F. Jay Santana and
Maggie Santana from St Petersburg (FL) of Tower 7 Consulting Group.
They came to Jefferson City, Missouri and we did tsome paperwork
stating that you will take the case and they also givei $3000 to the wife
of the deceased as financial aid to help with funeral (at 18% interest). I
would like to make sure that Santana work with you, you will take the
case and the papers the wife of the deceased seigned are legitimate.152
Pohl responded, confirming that he had been asuked to represent the “victims of the
tragic tire failure” and vouched for the Santanas, stating “Helping Hands and Jay
Santana provide valuable assistancea to families involved in these terrible
accidents.”153 
Magdalena testified to thee solicitation of Bikumbu and his children in her
deposition, stating that she fand her brother where there on behalf of Pohl and his
law firm:
A. You were asking me about when I visited clients in the hospital.
This lwas an example of one of the clients that I had visited in
thei hospital. They had lost -- I think the husband died in a tire
bilow-out, roll-over. There were several kids in the hospital and a
ogentleman and a lady. And this was the e-mail I -- the point of
contact was a professor from the university that was going to
translate from English to French to the client. And I guess he
150 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu.
151 Exhibit 22, September 17, 2018 Declaration of Heraclite Bikumbu and Exhibit 22-A, Bikumbu-
Pohl Contract.
152 Exhibit 23, July 11, 2013 Email.
153 Exhibit 24, July 11, 2013 Response Email.
21
was reaching out to either Michael Pohl's firm or to -- yeah, to
Mr. Pohl directly. He wanted to make sure that we were who we
said we were basically.
Q. And this e-mail references Jay. Is that your brother?
A. Yes, it is. k
Q. Did he go with you to sign up that client? C
A. Yes, he did.
... t
Q. Okay. And in it Mr. Pohl says, “I can vouch icompletely for Jay
and Maggie.” Do you know why he would be vouching for you?
A. Because I'm representing him. Becaeuse I was there on his
behalf.154
Florian also testified that he provided “marketing services” for auto accident
cases,155 and specifically testifies to solilciting the Bikumbu family just days or
weeks after the accident in Missouri Moccurred.156 The Santanas were paid “bonuses”
for soliciting the “Kumeso” case.157
Raymond Butts was thie victim of a tragic automobile accident on or about
August 7, 2013 in Clear Spring, Maryland, which claimed the life of Brenda Adams,
his fiancée. Just dayso after the accident, and while in the hospital recovering from
his injuries and grlieving the loss of his fiancé, Butts received an unexpected phone
call from Magidalena, who said she was working on behalf of Pohl. Magdalena
testified about this solicitation in her deposition, calling it “a crazy one.”158
Magdalena testified that while she and Walker were “soliciting for Michael Pohl for
154 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II.
155 Exhibit 25, November 9, 2016 Deposition of Florian Santana, pp. 63-67.
156 Exhibit 25, November 9, 2016 Deposition of Florian Santana, pp. 66-70.
157 Exhibit 5, Precision Financials.
158 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II p. 55.
22
the client to sign,” Butts’ family got “really irate and they called the security on
[them] at the hospital.”159 The family told security that “these people are here
soliciting for an attorney.”160 Magdalena’s persistence eventually paid off and Butts
agreed to hire Pohl, signing two contracts with his law firm.161 Magdaklena also had
Butts sign a funding agreement with Helping Hands Financing toC obtain the money
Magdalena promised to pay Butts if he hired Pohl.162 And of course, Magdalena had
Butts execute the “Attorney Acknowledgement” listing iPohl as his lawyer and
authorizing Pohl to pay back Helping Hands Financing from any settlement.163
Magdalena was paid for this unlawful solicitation. Ultimately, however, Pohl never
countersigned the contracts, and the claims were not pursued.
On or about Saturday, February l15, 2014, LaDonna Cheatham and her
children, Destiny and Markus, were tMragically killed after a tire on the Kia Sorrento
driven by LaDonna failed and caused the vehicle to cross the median and collide
with an oncoming school bus.1i64 LaDonna’s other son, Mark Cheatham, Jr. survived
the crash.165 Mark Cheatham, Sr. is the ex-husband of LaDonna, biological father to
Markus and Mark, oJr., and father-figure to Destiny.166 Luella Miller is the
159 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II p. 55.
160 Exhibit 8, November 8, 2016 Deposition of Magdalena Santana, Vols. I and II p. 56.
161 Exhibit 26, Butts-Pohl Contracts.
162 Exhibit 27, Butts Funding Agreement.
163 Exhibit 28, Butts Attorney Acknowledgement.
164 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
165 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
166 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
23
surviving mother to LaDonna.167 LaDonna was only thirty-six years old, Markus
was sixteen and Destiny was only six.168
Less than a week after the accident, Pohl and his firm entered into an
agreement with Walker, Ladner and Precision to provide “marketing skervices” – i.e.
“barratry” – relating to the Cheatham accident wherein Pohl agCreed to pay these
non-lawyers an unethical percentage of his attorney’s fees.169 Talley contracted with
Precision to aid in providing these “marketing services” toi Cheatham and Miller in
exchange for $10,000 for every $1,000,000 received in a settlement.170 Talley
testified that was paid a fee by Pohl, through Precision, to personally solicit and
sign up the Cheatham family.171 And, Talley was successful.
Talley testified in his deposition thlat days after the accident, he did some
“snooping” and located the residenMce of Cheatham, Sr.172 Talley went out and
“knocked on the door” and Cheatham, Sr. answered.173 Talley told Cheatham, Sr.
and Miller that he was with “Hielping Hands” and could help them with burial costs
and “getting settlements.”174 Talley told Cheatham, Sr. that he was “associated with
attorneys out of Houoston that were really experienced with multi-types of vehicle
accidents and thalt [they] could do the best job of getting him a settlement.”175
Cheatham, Sri. and Miller signed the paperwork, including the contract with Pohl,
167 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
168 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
169 Exhibit 30, Cheatham Retention Services Agreement.
170 Exhibit 31, Cheatham Distribution Agreement.
171 Exhibit 15, Deposition of Kenneth Talley, p. 60-61.
172 Exhibit 15, Deposition of Kenneth Talley, p. 64-65.
173 Exhibit 15, Deposition of Kenneth Talley, p. 65.
174 Exhibit 15, Deposition of Kenneth Talley, p. 64.
175 Exhibit 15, Deposition of Kenneth Talley, p. 65-66.
24
right there.176 Talley testified that he gave the Cheatham family $24,000 to sign up
with the lawyers.177 Either Pohl or Ammons brought the $24,000 and gave it to the
family,178 $18,000 of which went to Cheatham, Sr., and all of which was paid by
Helping Hands Financing.179 k
Talley’s testimony is consistent with that of Cheatham, Sr. Cwho testifies that,
on or about February 19, 2014, just days after the accident, he and Miller were
personally solicited by Talley at his home in Schriever, Louiisiana and urged to hire
Pohl and Ammons in a potential lawsuit against Kia Motors.180 Neither Cheatham,
Sr. nor Miller had ever met Talley before and did not request him to visit with them
about the accident.181 Cheatham, Sr. and Miller did not have a previous attorney-
client relationship with Pohl or Ammons alt the time they were personally solicited
by Talley.182 M
At the visit, Talley encouraged Cheatham, Sr. and Miller to sign an
agreement with a Helping Hiands to investigate a potential lawsuit against Kia
Motors in exchange for $400 per hour or 40% of any recovery in their case.183 Talley
offered Cheatham, Sor. $2,000 if he would sign the agreement and hire Helping
Hands to investiglate the potential lawsuit and in turn the lawyers.184 Talley
encouraged Chieatham, Sr. to sign the agreement by stating that the money could
176 Exhibit 15, Deposition of Kenneth Talley, p. 66.
177 Exhibit 15, Deposition of Kenneth Talley, p. 74.
178 Exhibit 15, Deposition of Kenneth Talley, p. 77.
179 Exhibit 32, Helping Hands Check to Mark Cheatham.
180 Exhibit 30, Cheatham Retention Services Agreement.
181 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 1.
182 Exhibit 29, Affidavit of Mark Cheatham, Sr., pp. 1-2.
183 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, and Cheatham Ex. 1.
184 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
25
defray funeral costs and the investigation would reveal a viable claim against Kia
Motors.185 Talley told Miller and Cheatham, Sr. that if there was a viable case, they
could hire Pohl and Ammons to represent them in the lawsuit.186 Cheatham, Sr.
agreed and signed the investigation agreement with Helping Hands.1k87 To get the
money, Cheatham, Sr. was required to sign several documents wiCth Helping Hands
Financing, Donalda Pohl’s company.188
Days later, on or about February 21, 2014, Pohli personally visited with
Cheatham, Sr. and Miller and encouraged them to sign contingency fee agreements
with his firm and also confirmed that he would associate Ammons on the case.189
Pohl said that Ammons was an expert on auto accident and auto defect cases.190
Pohl promised to pay Cheatham, Sr. $18,0l00 if he agreed to hire Pohl and Ammons
in the auto accident case.191 CheMatham, Sr. and Miller agreed and signed
contingency fee contracts for legal services with Pohl on this same day.192
Cheatham, Sr. signed the conitract for legal services individually and on behalf of
Destiny, Markus, and Mark, Jr., who were all minors.193 The $18,000 was paid to
Cheatham, Sr. in exochange via a check written from Donalda Pohl’s company
185 ExhibiUt 29, Affidavit of Mark Cheatham, Sr., p. 2.
186 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
187 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 2.
188 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
189 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
190 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
191 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2.
192 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 3; Exhibit 33, Miller-Pohl
Agreement.
193 Exhibit 29, Affidavit of Mark Cheatham, Sr., p. 2, at Cheatham Ex. 3.
26
Helping Hands Financing.194 Cheatham, Sr. and Miller later signed joint
representation agreements with Pohl and Ammons.195 Cheatham, Sr. testified that
he was offered and received an additional $500 to sign this joint agreement.196
Lacy Reese lost her husband David Reese on or about July k2, 2014 in a
vehicle accident that occurred outside of Anson, Texas.197 Reese bCuried her husband
on July 7, 2014.198 That same day, Ladner personally visited Reese’s home when she
was not there and left a business card stating he was thie “Associate Director” of
Helping Hands.199 The next day, July 8, 2014, Ladner again visited Reese’s home in
Paris, Arkansas and met with Reese and her mother, Karen Fairbanks.200 Ladner
told Reese and her mother that he was with a company called “Helping Hands” that
could investigate a potential lawsuit agailnst the vehicle manufacturer or the tire
company and sue them for the death Mof David.201 Ladner told Reese that if it looked
like she had a lawsuit, Pohl and his co-counsel, Rob Ammons, could handle the
case.202 Reese’s mother wrotei down the names of these lawyers on the back of
Ladner’s business card during this meeting.203 Ladner offered Reese money if she
would hire Helping Hoands Group and these lawyers, telling her the money could
194 Exhibit 29,o Affidavit of Mark Cheatham, Sr., p. 2; Exhibit 32, Helping Hands Check to Mark
Cheatham. n
195 ExhibiUt 29, Affidavit of Mark Cheatham, Sr., pp. 2-3, at Cheatham Ex. 5; Exhibit 34, Ammons-
Miller Agreement.
196 Exhibit 29, Affidavit of Mark Cheatham, Sr., pp.2-3.
197 Exhibit 35, Declaration of Lacy Reese, p. 1.
198 Exhibit 35, Declaration of Lacy Reese, p. 1.
199 Exhibit 35, Declaration of Lacy Reese, p. 1, and Reese Ex. 1.
200 Exhibit 35, Declaration of Lacy Reese, p. 1.
201 Exhibit 35, Declaration of Lacy Reese, pp. 1-2.
202 Exhibit 35, Declaration of Lacy Reese, p. 1.
203 Exhibit 35, Declaration of Lacy Reese, at Reese Ex. 1.
27
help with the expenses relating to David’s death.204 Reese had never met Ladner,
Pohl or Ammons, or requested them to visit with her about the accident or
requested them to contact her.205
Although Reese was grieving over the loss of her husband, Ladnker pressured
Reese to sign the papers he had brought with him that day anCd she did.206 The
agreement that Ladner had Reese sign provided Helping Hands Group $400 per
hour or 40% of any recovery in her case.207 To get the moneiy, Reese was required to
sign several agreements with Helping Hands Financing, Donalda Pohl’s
company.208 Reese was told she would get the money after a suit had been filed.209
On July 25, 2014, unbeknownst to Reese, Pohl and his firm entered into a
“Retention of Services Agreement” with Wlalker, Ladner and Helping Hands Group
to provide “marketing services” relaMting to the death of David.210 Among other
things, Ladner was to “conduct initial interview” of the victims and “maintain
contact with the victims andi their family.”211 In exchange, Pohl agreed to pay
Ladner and Helping Hands Group fees not to exceed 30% of his own attorney’s
fees.212 Walker and Porecision Marketing then contracted with Ladner to provide
“public relations slervices pertaining to the cases of David Reese” in exchange for
204 Exhibit 35, Declaration of Lacy Reese, pp. 1-2.
205 Exhibit 35, Declaration of Lacy Reese, p. 2.
206 Exhibit 35, Declaration of Lacy Reese, p. 2.
207 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 2.
208 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 3.
209 Exhibit 35, Declaration of Lacy Reese, p. 2.
210 Exhibit 36, Reese Retention Services Agreement.
211 Exhibit 36, Reese Retention Services Agreement.
212 Exhibit 36, Reese Retention Services Agreement.
28
$5,000 for every $1,000,000 received from any settlement.213 The solicitation of
Reese occurred pursuant to these agreements.
On July 18, 2014, Ladner emailed Walker and Jaimes, the manager of
Helping Hands Financing and Pohl’s paralegal, concerning the “Rekese Case.”214
Ladner described the accident that occurred on July 2nd – less Cthan three weeks
prior.215 On or about August 16, 2014, Reese received an email from Ladner about a
contract with Pohl.216 Ladner told Reese that Pohl’s contraict would “take the place”
of the one that Reese had with Helping Hands Group and requested her to send the
contract directly to Pohl’s office.217 Reese received an email two days later from
Walker forwarding her Pohl’s contract.218 Reese signed the contract and sent it to
Pohl.219 l
Ladner does not dispute this. LMadner testified that he got an alert about the
death of Reese’s husband and flew to “nowhere Arkansas” within seven days of the
accident and “knocked on the dioor” to solicit her.220 Ladner solicited Reese on behalf
of Precision and “to get paid” by Pohl.221 Ladner referred the case to Pohl and got
paid a “bonus” of $2o,500.222 Ladner brought with him Helping Hands Financing
forms he obtainedl from Jaimes.223 Although Ladner could not recall whether he
213 Exhibit 3n7, Reese Distribution Agreement.
214 ExhibiUt 38, July 18, 2014 Email re Reese Case.
215 Exhibit 38, July 18, 2014 Email re Reese Case.
216 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 4.
217 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 4.
218 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 5.
219 Exhibit 35, Declaration of Lacy Reese, p. 2, and Reese Ex. 6.
220 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 346-351.
221 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 347.
222 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 347, 358-359
223 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 349-350.
29
offered Reese money to sign up with Pohl, it was his practice to do so and the money
came from Jaimes and Helping Hands Financing, Donalda’s company.224 And Pohl
acknowledged that Ladener “was operating under [his] direction to … investigate[]
the incident as part of an initial case evaluation process.”225 In other wkords, Ladner
was soliciting Reese and evaluating her potential claim at the direCction of Pohl.
Pohl is sued by his Mississippi runners who expose the illegal
and unethical barratry scheme and Pohl settlest that litigation
after unsuccessfully seeking to have it dismissied based on the
illegality of his agreements.
On October 8, 2014, Walker and Ladner ande their company Precision sued
Pohl and his law firm for breach of contract aund fraud, among other claims (the
“Mississippi Litigation”).226 There, Walker nand Ladner alleged they had a joint
venture with Pohl to sign up clients with economic loss claims stemming from the
BP Deepwater Horizon oil spill.227 See Walker v. Williamson, No. 1:14cv381-KS-
JCG, 2016 U.S. Dist. LEXIS 6e1185, at *5-6 (S.D. Miss. May 9, 2016). They also
alleged that they had “condufcted marketing efforts to obtain personal injury clients”
for Pohl228 and that Pohl received attorney’s fees from the cases they signed up, but
that “Pohl did not pay any of the agreed share of his fees to Walker [and]
Ladner.”229 i
Moreo specifically, Walker, Ladner and Precision (“the Runners”) alleged that
Pohl contracted with them to provide “public relations and marketing services” to
224 Exhibit 39, April 11, 2019 Deposition of Kirk Ladner, at p. 351-354.
225 Exhibit 40, January 19, 2016 Letter.
226 Nicholson Exhibit 4, Walker Complaint.
227 Exhibit 41, Walker Second Amended Complaint.
228 Exhibit 41, Walker Second Amended Complaint. ¶ 118.
229 Exhibit 41, Walker Second Amended Complaint. ¶ 136.
30
potential clients impacted by the Deepwater Horizon oil spill in exchange for “a
percentage of the attorney fees for the claims obtained from their efforts, along with
expenses and a flat fee.” Walker, 2016 U.S. Dist. LEXIS 61185, at *6-7. The
Runners also alleged that they contracted with Pohl “to provide mkarketing and
public relations services in connection with claims for auCtomobile rollover
accidents.” Walker v. Williamson, No. 1:14-CV-381-KS-MTP, 2017 U.S. Dist. LEXIS
59031, at *5 (S.D. Miss. Apr. 18, 2017). “There is evidience that the [Runners]
contacted people and businesses in Mississippi to determine if they might have a
claim against BP, encouraged those people to retain Pohl as their attorney, and
were paid over $5 million in ‘barratry pass-through money’ for their services.”
Kassab v. Pohl, 612 S.W.3d 571, 574 (Telx. App. – Houston [1st Dist.] 2020, pet.
denied). However, the Runners sueMd Pohl because they “procured thousands of
viable BP claims” and “approximately sixty motor vehicle accident cases” for Pohl
but that Pohl “did noy pay ainy of the agreed share of his fees” or all expenses
incurred. Walker v. Williamson, No. 1:14-cv-381-KS-JCG, 2016 U.S. Dist. LEXIS
76488, at *5, 24 (S.D. oMiss. Mar. 1, 2016).
Precision tlransfers and assigns its assets and claims against
Pohl to iFavre – Pohl counterclaims for conversion in the
Mississiippi Litigation but settles when he cannot obtain
summoary dismissal.
During discovery in the Mississippi Litigation, Pohl discovered that the
Runners allegedly “disclosed confidential and proprietary information to third
parties without authorization” and proposed “the ‘sale’ of all of [his] accumulated
31
work product to third parties” while working for him.230 Pohl testifies that the
Runners “undertook to convert, misappropriate for themselves and/or market to
third parties claimant files and other information and materials” that allegedly
belonged to Pohl231 – including “marketing information and other tradek secrets”232 –
and then the new owner of Precision, Scott Favre, allegedly “solCd those items and
the information” to Kassab.233
As a result, Pohl “asserted multiple claims againist” the Runners in the
Federal Court Case based on their alleged “fraudulent and bad faith conduct.”234
Pohl did not assert claims against Kassab in the Federal Court Case, even though
he testified under oath that he knew Kassab allegedly was part of the “team of
thieves” who broke into Pohl’s office in 20l14 and stole his confidential information
and purported trade secrets.235 M
Pohl attempted to dismiss the Mississippi Litigation, arguing the agreements
between he and the runners iwere illegal and unenforceable.236 More specifically,
Pohl argued that under both Texas and Mississippi law “it is illegal for a non-
lawyer to accept or oagree to accept money to improperly solicit clients for a
lawyer.”237 The Mlississippi federal court denied Pohl’s motion to dismiss and
concluded thait he was in a partnership with Walker and Ladner and further
230 ExhibiUt 42, Pohl’s June 19, 2018 Affidavit, at ¶ 18.
231 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 28.
232 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 28.
233 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 29.
234 Exhibit 42, Pohl’s June 19, 2018 Affidavit, at ¶ 19; see also Exhibit 43, Pohl’s Amended
Counterclaim.
235 Exhibit 44, May 15, 2018 Deposition of Michael Pohl, pp. 85-93.
236 Exhibit 45, Walker Memorandum Opinion (Doc. No. 475); Exhibit 46, Walker Pohl Memorandum
(Doc. No. 175).
237 Exhibit 46, Walker Pohl Memorandum, at ¶ 18.
32
concluded that the agreements to solicit clients would only be a violation of the
Texas disciplinary rules and Texas law, which did not apply to Walker and
Ladner.238 Having failed to obtain summary dismissal, Pohl settled the Mississippi
Litigation, hoping to forever conceal the barratry operation.239 Thke Mississippi
Litigation was dismissed with prejudice on April 24, 2017.240 C
Kassab exposes Pohl’s illegal and unethical barratry and more
than 400 victims of Pohl’s barratry scheme hiret Kassab to file
civil claims and grievances against Pohl. i
Kassab was tipped off to the allegations in the Mississippi Litigation by an
acquaintance of his, F. Douglas Montague of the Mississippi law firm Montague
Pittman & Varnado, PA (“Montague”).241 Kassab obtained much information related
to the Mississippi Litigation from the flederal court’s online system, PACER.242
Kassab also associated Precision aMnd its new owner, Favre, and its counsel,
Nicholson, and obtained information directly from them, including the names and
addresses of Pohl’s former ori prospective clients.243 Favre informed Kassab that,
when he bought Precision, he acquired files related to Pohl and Favre transferred
that information to Koassab.244
Kassab preplared advertisement letters approved by the State Bar of Texas
and sent it to ipeople who had been illegally solicited by Pohl, informing them that
238 Exhibit 47, Walker Order on Pohl Motion to Dismiss (Doc. No. 252).
239 Exhibit 48, Walker Judgment (Doc. No. 499).
240 Exhibit 48, Walker Judgment (Doc. No. 499).
241 Exhibit 49, Declaration of Lance Christopher Kassab, at 2-3.
242 Exhibit 49, Declaration of Lance Christopher Kassab, at 2-3.
243 Exhibit 49, Declaration of Lance Christopher Kassab, at 2-3.
244 Exhibit 49, Declaration of Lance Christopher Kassab, at 2; Exhibit 50, Affidavit of Scott Favre.
33
they may have potential barratry claims against Pohl.245 Hundreds of Mississippi
residents responded to Kassab’s advertisement letter and more than 400 signed
representation contracts with Kassab’s firm to pursue barratry claims against
Pohl.246 Kassab filed four separate lawsuits on behalf of these barratkry victims in
Harris County, Texas (the “Barratry Lawsuits”).247 AdditionCally, due to the
egregiousness of Pohl’s violation of the Texas Penal Code and violations of the Texas
Disciplinary Rules of Professional Conduct, Kassab was reqiuired to notify the Texas
State Bar pursuant to disciplinary rule 8.03.248 Thus, Kassab filed grievances
against Pohl pursuant to this rule, and also at the request of some of Pohl’s former
clients.249
Pohl files this retaliatory lawsluit against Kassab seeking as
damages the costs he incurread to defend against the Barratry
Lawsuits and grievances filMed against him.
In retaliation, Pohl filed this litigation against Kassab, Favre, Nicholson,
Precision, and others, for cionversion, misappropriation of trade secrets and
conspiracy.250 Pohl rehashes his allegations from the Mississippi Litigation,
claiming that “Preciosion gained access to Pohl’s confidential and proprietary
information and plroperty, including trade secret materials” and “work product” and
245 Exhibit 4n9, Declaration of Lance Christopher Kassab, at 2; Exhibit 51, Advertisement Letters.
246 ExhibiUt 49, Declaration of Lance Christopher Kassab, at 2.
247 Exhibit 52 (Brumfield Third Amended Petition), Exhibit 53 (Gandy Third Amended Petition),
Exhibit 54 (Berry Fifth Amended Petition), Exhibit 55 (Cheatham Fourth Amended Petition)
(without exhibits).
248 Exhibit 49, Declaration of Lance Christopher Kassab, at 1.
249 Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct provides: “. . . a lawyer having
knowledge that another lawyer has committed a violation of applicable rules of professional conduct
that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer
in other respects, shall inform the appropriate disciplinary authority.”
250 See Pohl’s First Amended Petition (on file with the Court).
34
“illegally misappropriated” this information and then allegedly “secretly sold Pohl’s
confidential information to Kassab and [another lawyer named] Montague”251 who
then “solicited clients/prospective clients [of Pohl’s] to act as Plaintiffs . . . to bring
cases against Pohl for alleged barratry and other claims.”252 As damageks, Pohl seeks
the costs and expenses he incurred defending against the BarraCtry Lawsuits and
grievances filed against him.
SUMMARY JUDGMENT STANDARDDi
The purpose of summary judgments is to eliminate patently unmeritorious
claims and untenable defenses. Tex. Dep't of Parks & Wildlie v. Miranda, 133
S.W.3d 217, 228 (Tex. 2004). To prevail, the movant must show that no genuine
issue of material fact exists and that it isl entitled to judgment as a matter of law.
TEX. R. CIV. P. 166a(c); Lujan v. NavisMtar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). “If the
movant carries this burden, the burden shifts to the nonmovant to raise a genuine
issue of material fact precludiing summary judgment.” Lujan, 555 S.W.3d at 84; see
Maldonado v. Maldonado, 556 S.W.3d 407, 414 (Tex. App.—Houston [1st Dist.]
2018, no pet.). “A genouine issue of material fact exists if more than a scintilla of
evidence establishling the existence of the challenged element is produced.” Ford
Motor Co. v. Riidgway, 135 S.W.3d 598, 600 (Tex. 2004).
ARGUMENT & AUTHORITIES
Although Pohl’s claims against Kassab lack merit because Kassab did not
misappropriate Pohl’s trade secrets or otherwise engage in any misconduct, the
251 First Amended Petition, at ¶¶ 20-21.
252 First Amended Petition, at ¶ 29.
35
Court need not decide that issue to dispose of Pohl’s claims against Kassab. Rather,
Pohl’s claims can be dismissed for several independent reasons.
A. Pohl’s claims against Kassab are barred by immunity
under Rule 17.09 of the Texas Rules of Disciplinary
Procedure. k
First, Pohl’s claims against Kassab must be dismissed baCsed on immunity
provided in Rule 17.09 of the Texas Rules of Disciplinary Procedure. That rule
provides: i
No lawsuit may be instituted against any Complainant or
witness predicated upon the filing of a Grieevance or participation in
the attorney disciplinary and disability system. … The immunity is
absolute and unqualified and extendsu to all actions at law or in
equity.
TEX. R. DISC. P. 17.09 (emphasis added). Elven “allegations of wrongdoing” done “in
connection with [the] prosecution of dMisciplinary actions” are absolutely immune, so
long as they are “predicated upon” the filing of a grievance. Crampton v. Farris, 596
S.W.3d 267, 274-75 (Tex. App.i—Houston [1st Dist.] 2019, no pet.).
Here, it is undisputed that Pohl’s allegations of wrongdoing against Kassab
are predicated upon Koassab’s filing of grievances against Pohl. Pohl testified that he
has sued Kassab blecause Kassab allegedly “used information from [Pohl’s] files in
the grievance iproceedings that [Kassab] personally filed or had clients file and
[Kassab allegedly] shared [Pohl’s] stolen property with Ms. Nicholson so she could
defend a grievance against herself, according to her own testimony.”253 Pohl seeks
as damages in the form of “costs and expenses of … serial grievances that arose
253 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122.
36
from the use of the [allegedly] misappropriated trade secrets.”254 Pohl intends to
have his biased expert, John Zavitsanos,255 “testify that Defendants, including
[Kassab], sought to profit from the use of [Pohl’s information] by … using it … to
facilitate the bringing of grievances and litigation against Pohl.”256 kZavitsanos is
purportedly going to “opine that [Pohl’s] attorneys’ fees and expenCses incurred … in
defending related matters including against invalid grievances … are fair,
reasonable, necessary and recoverable under the circumstainces.”257
But Rule 17.09 makes clear that “[n]o lawsuit” may be instituted against
Kassab that is “predicated upon” the filing of a grievance or participation in the
attorney disciplinary and disability system. TEX. R. DISC. P. 17.09. Because Pohl’s
claims against Kassab and the damages lthat he seeks are “predicated upon” the
grievances that Kassab caused to Mfile against Pohl, the claims are barred by
“absolute and unqualified” immunity that “extends to all actions at law or in
equity.” Id.; Crampton, 596 Si.W.3d at 276 (claim for destruction of evidence and
property related to grievance proceeding barred by immunity under Rule 17.09);
Burch v. State Bar ofo Tex., No. 07-19-00224-CV, 2020 Tex. App. LEXIS 1409, at *3
(Tex. App.—Amarilllo Feb. 19, 2020, pet. denied) (immunity under Rule 17.09 barred
claim that attiorneys for commission, in relation to a grievance proceeding, who
purportedly “engaged in misconduct related to a bankruptcy proceeding in which
254 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122. (emphasis added).
255 Mr. Zavitsanos is bias because he was an advocate for Pohl’s co-defendant in the underlying
barratry cases that Kassab brought and because Kassab had previously sued Mr. Zavitsanos and his
firm. See Cause No. 20191510, Bragg v. Zavitsanos, in the 270th Judicial District Court of Harris
County, Texas. The Court is requested to take judicial notice of this case.
256 Exhibit 57, Pohl’s Second Amended Designation of Expert Witnesses, at 5.
257 Exhibit 57, Pohl’s Second Amended Designation of Expert Witnesses, at 6.
37
[plaintiff] was involved”). Since all of Pohl’s claims are related to the grievance
proceedings, they are all barred by Rule 17.09 and summary judgment may be and
should be granted based upon Rule 17.09 alone.
B. Pohl’s claims against Kassab are barred by the jukdicial
proceedings privilege. e
“The judicial-proceedings privilege is an absolute privilege that covers any
statement made by the judge, jurors, counsel, parties or wittnesses, and attaches to
all aspects of the proceedings, including statements made in open court, pre-trial
hearings, depositions, affidavits and any of the pleeadings or other papers in the
case.” Landry's, Inc. v. Animal Legal Def. Funud, 631 S.W.3d 40, 46 (Tex. 2021)
(internal quotations omitted). “The judicial-proceedings privilege exists to facilitate
the proper administration of the jusatice system. It does so by relieving the
participants in the judicial process from fear of retaliatory lawsuits for statements
they make in connection with thee proceeding itself.” Id. at 48.
Moreover, the jufdicial-proceedings privilege attaches even to
“communications preliminary to a proposed judicial proceeding” if “the
communication has some relation to a proceeding that is actually contemplated in
good faith and uinder serious consideration by the witness or a possible party to the
proceeding.o” Id. at 48-49. “Even in the pre-suit context, however, the privilege
protects communications that are themselves preparatory to the lawsuit.”
Id. (emphasis added). The privilege protects all communications that are
“necessary to set the judicial machinery in motion.” Id. at 50 (quoting
RESTATEMENT (SECOND) OF TORTS § 586 cmt. a) (emphasis added).
38
Here, Pohl has sued Kassab in retaliation for Kassab “solicit[ing] …
clients/prospective clients to act as plaintiffs … to bring cases against Pohl for
alleged barratry and other claims.”258 Pohl admits that he is suing Kassab for
statements Kassab made to prospective clients which spawned the lkitigation and
grievance proceedings:259 C
Because Pohl’s claims against Kassab arise out of communications that Kassab
made in prospective (solicitation letters) and actual judicial proceedings (the
barratry litigatioin and grievance process), Pohl’s claims against Kassab are barred
by the judicoial proceedings privilege. See Crain v. Smith, 22 S.W.3d 58, 62-63 (Tex.
App.—Corpus Christi 2000, no pet.) (holding that statements in letter sent before
the lawsuit began were protected by the judicial-proceedings privilege).
258 Amended Petition, at ¶ 29.
259 Exhibit 56, December 2021 Deposition of Michael Pohl, at 122.
39
It matters not how Pohl characterized his claims against Kassab because “the
privilege should be extended beyond defamation when the essence of a claim is
damages that flow from communications made in the course of a judicial
proceeding.” Laub v. Pesikoff, 979 S.W.2d 686, 691 (Tex. App.—Houstkon [1st Dist.]
1998, pet. denied). Here, Pohl seeks as damages “the costs and Cexpenses of serial
litigations and serial grievances” that Kassab filed against Pohl, including
attorney’s fees for his lawyers who represented him in tihat litigation and “[a]ny
fees, any expenses [Pohl] had, hotel rooms, long-distance phone calls, copy costs,
[Pohl] intend[s] to sue Mr. Kassab for all of it.”260 Because Pohl’s alleged damages
“flow from” communications that Kassab made in the barratry litigation and
grievance proceedings, his claims are barlred regardless of label. See id. (holding
privilege applied to claims for “intentMional interference, civil conspiracy, intentional
infliction of emotional distress, negligence, and constitutional violations”); Tex. Mut.
Ins. Co. v. Ray Ferguson Interiests, Inc., No. 01-02-00807-CV, 2006 Tex. App. LEXIS
2001, at *27-28 (Tex. App.—Houston [1st Dist.] Mar. 16, 2006, pet. denied) (mem.
op.) (holding that absoolute privilege applied in deceptive insurance practices claim
under Texas Insurlance Code because “although [plaintiff] did not plead defamation,
its theory of idamages was that its clients, creditors, and bonding companies
abandoned it, in part, because of the [insurer's] allegations and assertions . . . made
in the course of this judicial proceeding”). Thus, summary judgment must be
granted based upon the judicial proceedings privilege.
260 Exhibit 56, December 2021 Deposition of Michael Pohl, at 121.
40
C. Pohl’s claims against Kassab are barred by attorney
immunity.
Under the doctrine of attorney immunity, “an attorney does not have a right
of recovery, under any cause of action, against another attorney arising from
conduct the second attorney engaged in as part of the discharge eof his duties in
representing a party.” Bradt v. West, 892 S.W.2d 56, 72 (Tex. App.—Houston [1st
Dist.] 1992, writ denied) (emphasis added). “[A]n attorney ist immune from liability
to nonclients for conduct within the scope of his representation of his clients.”
Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 201e8). The inquiry “focuses on the
kind of conduct at issue rather than the allegedu wrongfulness of said conduct.” Id.
“That is, a lawyer is no more susceptible to liability for a given action merely
because it is alleged to be fraudulent ora otherwise wrongful.” Id. “Merely labeling an
attorney’s conduct ‘fraudulent’ does not and should not remove it from the scope of
client representation or render eit ‘foreign to the duties of an attorney.’” Id. at 483.
Even “criminal conduct is noft categorically excepted from the protections of attorney
civil immunity when the conduct alleged is connected with representing a client in
litigation.” Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d
651, 657 (Tex. 2i020); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 483 (Tex. 2015)
(“an attornoey’s conduct may be wrongful but still fall within the scope of client
representation”).
Although the Court previously denied Kassab summary judgment on this
defense, the Texas Supreme Court’s recent decision in Taylor v. Tolbert, 644 S.W.3d
637 (Tex. 2022) requires reconsideration. Taylor held that even “conduct prohibited
41
by statute” is subject to attorney immunity if the “statute does not expressly, or by
necessary implication, abrogate the immunity defense, and the attorney met her
burden to establish its applicability to the conduct at issue.” Id. at 642.
In Taylor, the attorney was accused of violating state and kfederal laws
prohibiting wiretapping because the attorney obtained and usCed the plaintiff’s
communications in violation of the statute. Id. at 643. The plaintiff brought a
statutory claim against the attorney which permitted recoviery of civil damages. Id.;
see also TEX. CODE CRIM. PROC. § 18A.502. The a
ttorney moved for traditional
summary judgment, “arguing she is immune from liability as a matter of law
because the plaintiffs’ claims all stem from her role as an attorney in the
modification proceeding.” Id. at 644. The tlrial court agreed, but the court of appeals
reversed. Id. The Supreme Court graMnted review and reversed the court of appeals.
Id. It concluded that the attorney was, “in all respects, engaging in the office,
professional training, skill, aind authority of an attorney in the ways that she
allegedly used and disclosed the materials her client provided.” Id. at 649. “Because
[the attorney’s] conduoct falls squarely within the confines of attorney immunity, the
alleged criminalityl or wrongfulness of the conduct does not perforce preclude its
availability asi an affirmative defense.” Id. The court also held that “Texas’s wiretap
statute does not expressly repudiate the common law or the attorney-immunity
defense.” Id.
Here too, Kassab’s conduct which forms the basis of Pohl’s claims fall
squarely within the confines of attorney immunity, regardless of whether it is
42
alleged to have violated the TUTSA because that statute does not expressly
repudiate the defense.
Pohl is suing Kassab because he allegedly obtained purportedly stolen
information in violation of the TUTSA and then “solicikted [Pohl’s]
clients/prospective clients to act as plaintiffs … to bring casesC against Pohl for
alleged barratry and other claims.”261 The essence of Pohl’s claims against Kassab
are “that Kassab bought Pohl’s client list from [Precision] sio that Kassab could send
advertisements to Pohl’s former clients and solicit them to become Kassab’s clients
in barratry suits against Pohl.” Kassab v. Pohl, 612 S.W.3d 571, 578 (Tex. App.—
Houston [1st Dist.] 2020, pet. denied) (characterizing Pohl’s claims against Kassab).
Pohl seeks as damages “the costs and lexpenses of serial litigations and serial
grievances” that Kassab filed againstM Pohl, including attorney’s fees for his lawyers
who represented him in that litigation and “[a]ny fees, any expenses [Pohl] had,
hotel rooms, long-distance pihone calls, copy costs, [Pohl] intend[s] to sue Mr.
Kassab for all of it.”262 Pohl has even designated Mr. Zavitsanos to testify to these
damages, and “the reoasonableness and necessity of the attorneys’ fees, costs, and
expenses incurredl by Pohl in defending against invalid grievances and stale
claims.”263 i
Moreover, in this very case, the court of appeals opined that “the alleged
purchase of Pohl[’s] client list for those clients’ contact information,
followed by the mailing of attorney advertisements to those individuals
261 Amended Petition, ¶ 29.
262 Exhibit 56, December 2021 Deposition of Michael Pohl, at 121.
263 Exhibit 57, Pohl’s Second Amended Designation of Experts, at 3.
43
about specific types of claims they might be able to pursue against a
specifically identified attorney, qualifies as statements or conduct that
arose out of a commercial transaction involving the type of legal services
Kassab provides.” Kassab, 612 S.W.3d at 578 (emphasis added). Thek court opined
that, “the intended audience of [Kassab’s alleged] statemCent or conduct
were individuals with potential legal claims who Kassab sought to
represent in barratry suits against Pohl.” Id. at 579 (eimphasis added).
The acquisition of clients and filing of lawsuits are actions taken “to facilitate
the rendition of legal services.” Youngkin, 546 S.W.3d at 682; Clayton v. Oldcastle
Materials Tex., Inc., No. 09-18-00063-CV, 2019 Tex. App. LEXIS 1112, at *12, 15
(Tex. App.—Beaumont Feb. 14, 2019, nlo pet.) (applying attorney immunity to
attorney’s conduct which included M“selling his legal services to the City as a
potential client” and subsequent conduct which “occurred in the course of his
undertaking to represent” thoise clients). The fact that Kassab is alleged to have
committed the misconduct prior to any litigation is immaterial because “attorney
immunity applies too claims based on conduct outside the litigation context[.]”
Haynes & Boone, LlLP v. NFTD, LLC, 631 S.W.3d 65, 78-79, 81 (Tex. 2021); Cantey
Hanger, 467 Si.W.3d at 485 (concluding that attorney was immune from conduct
that occurred after litigation had ended). In other words, Pohl’s characterization of
Kassab’s activities as part of a business transaction that occurred prior to litigation
does not negate attorney immunity because Kassab engaged in the conduct as part
of his ultimate provision of legal services to his client. See Haynes & Boone, 631
44
S.W.3d at 78-79, 81 (applying attorney immunity to lawyer conduct committed as
part of business transaction). Indeed, in this case, the court of appeals concluded
that all of Kassab’s conduct for which Pohl complains “arose out of a commercial
transaction involving the type of legal services Kassab providkes.” Kassab,
612 S.W.3d at 578 (emphasis added). C
Accordingly, Pohl’s claims against Kassab are barred by attorney immunity.
See Taylor, 644 S.W.3d at 648 (attorney could not be heldi civilly liable for conduct
which was “criminal in nature” because it was committed while discharging duties
to client); Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-15-
00055-CV, 2016 Tex. App. LEXIS 442, at *10-11 (Tex. App.—Dallas Jan. 14, 2016,
pet. denied) (mem. op.) (applying attorneyl immunity to claim that attorney engaged
in “malicious conduct with respect Mto its illegal acquisition, retention, use, and
threatened disclosure of [the plaintiff’s] proprietary and confidential information”
that “it knew to be stolen anid proprietary in furtherance of its scheme to extort,
slander, and disparage [the plaintiff]” and “refusing to return and cease use of [the
plaintiff’s] proprietaryo information”). The law of the case, as outlined by the court
of appeals in thisl matter, demonstrates that the alleged conduct for which Pohl
basis his claimis is clearly covered by the attorney immunity doctrine.
D. Pohl’s claims are barred by limitations.
A defendant moving for summary judgment on the affirmative defense of
limitations bears the burden of conclusively establishing the elements of that
defense. Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 833 (Tex. 2018) (per
45
curiam). To do so, the defendant must (1) conclusively prove when the cause of
action accrued and (2) negate the discovery rule if it applies and has been pleaded
or otherwise raised. KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988
S.W.2d 746, 748 (Tex. 1999). A cause of action accrues when (1) “kthe allegedly
tortious act was committed and caused an injury;” or (2) “facts coCme into existence
that authorize a party to seek a judicial remedy.” United Healthcare Servs., Inc. v.
First St. Hosp. LP, 570 S.W.3d 323, 335 (Tex. App.—Housiton [1st Dist.] 2018, pet.
denied) (citing Pasko, 544 S.W.2d at 834). This is true even if all resulting damages
have not yet occurred. Pasko, 544 S.W.3d at 834. Determining the accrual date is a
question of law. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex.
2003). As demonstrated below, all of Pohll’s claims against Kassab are barred by
limitations. M
1. Facts relevant to limitations.
Pohl testified that he iand Precision shared an office in Gulfport, Mississippi
from 2013-2014.264 Pohl called this his “satellite law office.”265 The owners of
Precision in 2014 weroe Scott Walker, Kirk Ladner, and Steve Seymour.266
Pohl testiflied that he closed his Gulfport, Mississippi office in the summer
of 2014.267 Hei testified that he asked Precision to arrange to have his office
equipment and files sent to him in Houston, Texas.268 Pohl testified that Precision
264 Exhibit 56, December 2021 Deposition of Michael Pohl, at 7-10.
265 Exhibit 56, December 2021 Deposition of Michael Pohl, at 6-8.
266 Exhibit 56, December 2021 Deposition of Michael Pohl, at 16.
267 Exhibit 56, December 2021 Deposition of Michael Pohl, at 11.
268 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
46
made excuses for why they could not get his property moved to Houston.269 In June
or July of 2014, Pohl “gave up” asking Precision to arrange the move and hired his
own mover to go to Gulfport and get everything that was in the office: “every pencil,
every paper, every file, every file cabinet, every icebox.”270 Pohl testikfied that the
mover was to bring the property back to Pohl in Houston, Texas.27C1 When the mover
arrived in Gulfport, he found the office almost empty, and Precision told him that
Precision removed all files and was not returning them.2i72 Pohl testified that he
contacted Precision and was told Precision was “keeping” the files.273
Pohl asserts that Kassab and other Defendants orchestrated and participated
directly in the 2014 theft of files.274 Pohl testified that Kassab and the other
Defendants “robbed my office [and] stole mly clients’ names” in 2014.275 He further
testified: M
A. That group of criminals stole about 11,000 files out of my
Mississippi office. eThey also stole my computers and hired a
third party, whoise name slips my mind right now, to hack
into my office fcomputers and steal all of my confidential
information, internal documents. And they also stole my
forms that I created for BP and other litigation, among other
things. o
Q. And lwhen you’re saying “this group of criminals,” who did
that include?
269 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
270 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
271 Exhibit 56, December 2021 Deposition of Michael Pohl, at 12.
272 Exhibit 56, December 2021 Deposition of Michael Pohl, at 6, 12-14.
273 Exhibit 56, December 2021 Deposition of Michael Pohl, at 15.
274 Amended Petition, at ¶¶ 21-24.
275 Exhibit 58, May 2018 Deposition of Michael Pohl, at 94-97.
47
A. It would be Scott Favre, Tina Nicholson, Lance Kassab, Doug
Montague, and potentially the people that they either bribed
or coerced into doing their dirty work.276
Pohl alleges that Kassab is a co-conspirator with Nicholson to unlawfully
misappropriate his trade secrets.277 Pohl testified that “Tina Nicholskon demanded
that Scott Walker steal my files or, because he got in trouble wCith the law, Tina
Nicholson was going to take his two baby children away from him and forced him to
cooperate with [Kassab’s] crew to rob me and hack my compiuters.”278
Pohl testified that the alleged theft of trade secret information occurred in
the summer of 2014 when Kassab and his “crew” agllegedly broke into Pohl’s office in
Gulfport and hacked his computers, stole his clients’ names and information, and
then solicited his clients:
Q. Okay. And you think I'mM an unethical lawyer?
A. Yes. You stole my fileos. You robbed me. You tried to destroy my
practice. So I doen't believe you should submit any more
materials, particularly false affidavits that have been retracted
by the witnessfes who made them and other verifiably false
accusations. And you've solicited my clients like Mr. Cheatham,
and you've told him lies to get him to sue me.
o …
A. If the Cquestion is did you steal my files and rob my office, the
answler is that you and your co-counsel and your crew robbed my
office, stole my clients' names, contacted my clients and told
thiem lies to initiate suits against me.
Q. nOkay. How did I steal your files, sir? Did I break into your
house?
A. You broke into my law office.
276 Exhibit 59, April 2021 Deposition of Michael Pohl, at 37-39.
277 Amended Petition, at ¶ 43.
278 Exhibit 58, May 2018 Deposition of Michael Pohl, at 94.
48
Q. I did personally?
A. You and your crew.
Q. And when did I do that?
A. I don't know the exact date, but I believe it was in 2014k when
you robbed me. e
Q. I robbed you in 2014? 
A. Yes, sir. t
… i
Q. So I broke into your office and stole your stuff in 2014 at
your Gulfport, Mississippi office, right?
A. You and your crew.279
In this case, Pohl admitted under oath that he knew in 2014 that his trade secrets
had been misappropriated: l
Q. You knew as of the suMmmer of 2014, then, that the trade
secrets that you claim in this lawsuit were taken by
Precision Marketing. Is that correct?
A. Yes, I knew they were not being made available to me.280
Pohl also expressly testified that he knew in the summer 2014 that his files – which
he claims are the purported trade secrets – had been stolen from him:
Q. Who stole the files?
A. Wcell, originally it would have been Precision Marketing.
Q. Did you form the opinion that they had stolen the files when Mr.
UBlanton informed you that he learned that the files were not
available to be moved to Houston?
A. Well, I certainly had a suspicion, so I followed up and spoke to
somebody at Precision about it.
279 Exhibit 58, May 2018 Deposition of Michael Pohl, pp. 85-93. (emphasis added)
280 Exhibit 56, December 2021 Deposition of Michael Pohl, at 14. (emphasis added)
49
Q. And once you spoke to the person at Precision, that’s when you
formed your opinion that the files had been stolen from you. Is
that correct?
A. Yes.
Q. And that would have been sometime in the summer of 201k4?
A. Yes.281 l
Accordingly, it is undisputed that the alleged trade secret protperty was removed
from the Gulfport office no later than July 2014, that Precsision – who Pohl alleges
was part of Kassab’s “crew” – took it, and that by July 2014 Pohl was aware that
Precision had taken it in an alleged conspiracy with Kassab.
After Pohl discovered the taking of theB alleged trade secrets in the summer
2014, he took no immediate action to recoveyr it, find out what happened to it, or find
out if anyone else was involved in the taaking. Pohl testified that although he knew
the alleged conduct by Kassab occufrred in 2014, he did not file a lawsuit against
Kassab because he “wanted to spend time to reflect on it before taking action [and]
didn’t want to do anythingO that was precipitous.”282
On October 8, 20p14, Precision and its owners, Scott Walker, Kirk Ladner and
Steve Seymour, filed a breach of contract lawsuit against Pohl in federal court in
Mississippi.283 cPohl’s only reaction to the lawsuit was to send Walker and Ladner a
mild email two days later asking them to return his “original documents, evidence
and keys.”284 From that point forward, Precision and its owners proceeded to
publish Pohl’s alleged proprietary information in the lawsuit. For example, in
281 Exhibit 56, December 2021 Deposition of Michael Pohl, at 18-19.
282 Exhibit 58, May 2018 Deposition of Michael Pohl, p. 93.
283 Nicholson Ex. 4, Federal Original Complaint.
284 Nicholson Ex. 5, Doc. 19-1.
50
November 2014, one month after filing the lawsuit, they published his alleged
marketing materials,285 communications and contracts between Pohl and other
lawyers,286 communications between Pohl and his clients or potential clients,287 and
Pohl’s BP client solicitation letter,288 all without any complaint fromk Pohl. Thus,
Pohl acquiesced to the publication and use of his alleged trade secrCets.
Pohl took no action to recover his allegedly stolen property nor attempt to
stop the dissemination of his alleged trade secrets: he did niot file a counterclaim for
theft, conversion, or violation of a trade secrets act, nor did he move for injunctive or
other relief to reacquire or protect his trade secrets, nor did move for a protective
order regarding his alleged trade secrets or (until the March 2017 confidentiality
order that was expressly not retroactive) lenter into a confidentiality agreement to
protect and keep secret the documeMnts produced during the lawsuit.289 In short,
Pohl failed to do any of the things that a person exercising reasonable diligence
regarding the theft of trade seicrets would do.
On or about May 12, 2015, Walker, Ladner and Seymour sold Precision to
Scott Favre, and ino conjunction with the sale, they transferred the allegedly
misappropriated mlaterials to Favre’s office in Kiln, Mississippi.290 On May 12, 2015,
Nicholson enteired an appearance in the Mississippi litigation as the attorney for
Precision.291
285 Nicholson Ex. 6, Doc. 19-5 and 19-6.
286 Nicholson Ex. 7, Doc. 19-3.
287 Nicholson Ex. 8, Doc. 19-7.
288 Nicholson Ex. 9, Doc. 19-10.
289 Nicholson Ex. A, Nicholson Affidavit.
290 Nicholson Ex. 10, Doc. 396-2.
291 Nicholson Ex. 11, Doc. 77.
51
The sale of Precision to Favre apparently stimulated Pohl to determine
whether Nicholson had the alleged trade secret materials. On May 15, 2015, Pohl’s
attorney sent Nicholson a letter demanding that Walker, Ladner and Seymour turn
over to Pohl the contracts between him and his BP clients. The letterk stated, “The
contracts do not belong to your clients.”292 Pohl’s attorney sent NCicholson a second
letter on May 20, 2015. The letter repeated Pohl’s demand that Nicholson provide
the contracts to him. By way of explanation, the letter saidi, “As you may know, the
British Petroleum claim filing deadline is June 8, 2015. Mr. Pohl needs the
contracts to address client matters relating to the deadline.”293 Of course, this was a
lie because Pohl had access to all contact information, if not from his own home
office where contracts were sent to him, hils co-counsel who was administering all of
their claims in Houston had copies of Mall contracts and contact information.
On May 27, 2015, Nicholson emailed a letter to Pohl’s attorney, confirming
that the contracts in Precisioin’s possession were being held at the office of Scott
Favre, Precision’s new owner.294 In pertinent part, it said:
This letter respoonds to your faxed letters and addresses matters which
we discussed in our telephone conversation last Friday. Your client,
Michael Polhl, has demanded that my client, Precision Marketing
Group, LiLC, hand over the originals and copies of . . . contracts
betweeni him . . . and the BP/Deepwater Horizon claimants. . . Mr. Pohl
asserots that the documents do not belong to PMG or the other
Plaintiffs.295
292 Nicholson Ex. 12, 2015 Communications.
293 Nicholson Ex. 12, 2015 Communications.
294 Nicholson Ex. 12, 2015 Communications.
295 Nicholson Ex. 12, 2015 Communications.
52
Nicholson’s letter went on to state that “PMG will not relinquish possession of the
original contracts at this time.”296 Nicholson stated that the documents in question
were being held at the office of Scott Favre, Precision’s new owner.297 Nicholson also
mentioned that a computer containing some of the information had bkeen sent to a
forensic expert for recovery of date.298 C
Pohl swore to his lawyer’s letters being sent to Nicholson requesting return of
the materials in his interrogatory answers: i
l 299
Accordingly, at least as of May 2015, Pohl knew that Walker and Ladner (who Pohl
contends was part of Kassab’s “crew”) had transferred the alleged trade secrets to
Favre who was represented byi Nicholson (who Pohl contends are other members of
Kassab’s “crew”), and that Nicholson had refused Pohl’s demand for return of the
information. More thaon 3 years later, on August 28, 2018, Pohl filed this lawsuit. As
explained below,a Plohl’s TUTSA claim against Kassab, along with his conversion and
conspiracy clfaiim, are barred by the statute of limitations, and thus, summary
judgment must be granted.
296 Nicholson Ex. 12, 2015 Communications.
297 Nicholson Ex. 12, 2015 Communications.
298 Nicholson Ex. 12, 2015 Communications.
299 Nicholson Ex. 13, Pohl’s Interrogatory Answers at No. 4.
53
2. Pohl’s TUTSA is barred by the three-year statute of
limitations.
TUTSA has a three-year statute of limitations: “A person must bring suit for
misappropriation of trade secrets not later than three years after the
misappropriation is discovered or by the exercise of reasonable deiligence should
have been discovered.” TEX. CIV. PRAC. & REM. CODE § 16.010(a).
“Misappropriation”
means, among other definitions, the acquisition of a trade tsecret of another by a
person who knows or has reason to know that the trade secret was acquired by
improper means. Id. at § 134A.002(3). “Improper emeans” includes theft. Id. at §
134A.002(2). “A misappropriation of trade securets that continues over time is a
single cause of action and the limitations period … begins running without regard
to whether the misappropriation is a sinagle or continuing act.” Id. at § 16.010(b).
Accordingly, the first act of misappropriation is when the statute of
limitation accrues for misapproperiation of a trade secret. See Gen. Universal Sys. v.
HAL Inc., 500 F.3d 444, 45f1 (5th Cir. 2007) (recognizing the TUTSA “explicitly
precludes treating trade secret misappropriation as a continuing tort.”); Guajardo v.
Freddie Records, Inc., No. CV H-10-02024, 2014 WL 12603179, at *2 (S.D. Tex. May
15, 2014) (“[T]hie Texas Legislature decided not to make this type of claim
a continuinog tort. Specifically, the Texas Legislature enacted a three-year statute
of limitations for suits alleging misappropriation of trade secrets in May 1997.”).
Accordingly, “the tort of misappropriation, as viewed under Texas law, occurs at the
moment of misappropriation.” Bianco v. Globus Med., Inc., 53 F. Supp. 3d 929, 938
(E.D. Tex. 2014)
54
In this case, the limitation period on the TUTSA claim began to run in
summer 2014, when Precision and allegedly Kassab, to use Pohl’s own word, “stole”
the trade secrets.300 Pohl testified that he had actual knowledge of the
misappropriation of his claimed property no later than July 2014.301k Accordingly,
the misappropriation occurred more than four years before PohCl filed this lawsuit
in August 2018.
This is not a case where the date of the misappropriiation is unclear. This is
not an instance where an employee secretly copies information from an employer,
stealthily shares it with a competitor, and the owner of the trade secret finds out in
a roundabout way at some later point in time when a similar product hits the
market. In this case, Precision physicallyl removed all of the documents from the
office it shared with Pohl. Pohl admitMs that he unequivocally discovered the alleged
theft of the trade secrets no later than July 2014. And what’s more, Pohl testified,
that Kassab and his “crew” piarticipated in the theft of his trade secrets in 2014.
Thus, based upon Pohl’s own testimony, Pohl’s TUTSA claim against Kassab
expired in July 2017, oover a year before Pohl filed this lawsuit.
The statutolry language is very specific as to when the statute begins to run.
It says that thie limitation period starts when “misappropriation is discovered or by
the exercise of reasonable diligence should have been discovered.” TEX. CIV. PRAC. &
REM. CODE 16.010(a). Pohl discovered the theft of his trade secrets no later than
July 2014. Accordingly, the statute began to run on the misappropriation in July
300 Exhibit 58, May 2018 Deposition of Michael Pohl, at 18-19.
301 Exhibit 58, May 2018 Deposition of Michael Pohl, at 18-19.
55
2014, meaning Pohl’s TUTSA claim was barred by the time he filed suit in August
2018.
Alternatively, even if the statute began to run in May 2015, Pohl’s claim is
still barred. The May 2015 letters prove that Pohl knew in May 2015k that Walker,
Ladner and Seymour had transferred the disputed documents aCnd information to
Favre and Nicholson.302 Nicholson’s letter of May 27, 2015, informed Pohl that
Favre had the hard copies of the trade secret documentsi at his Kiln, Mississippi
office, they also had the computer with the alleged trade secrets, and that Nicholson
refused to return Pohl’s alleged information.303 Hence, Pohl “discovered” Nicholson’s
alleged “misappropriation” when he received her May 2015 letter confirming her
refusal to give them to Pohl, despite his alssertion of ownership. However, Pohl did
not file this lawsuit until August 28M, 2018, around three months after the latest
possible limitation period expired on May 27, 2018.
It is also important to iunderstand that the alleged subsequent use, sale or
purchase of the trade secrets did not restart the clock on the TUTSA limitations
period. The fact that,o after the trade secrets were purportedly misappropriated in
2014, or alternativlely 2015, they were allegedly subsequently used or transferred
did not restarit the limitation period. The case Agar Corp. v. Electro Circuits Int'l,
LLC, 565 S.W.3d 12 (Tex. App.—Houston [14th Dist.] 2016), aff'd in part, rev'd in
part on other grounds, 580 S.W.3d 136 (Tex. 2019) is instructive on this point. In
Agar, the plaintiff initially sued more than a dozen defendants in April 2008 in
302 Nicholson Ex. 12, 2015 Communications.
303 Nicholson Ex. 12, 2015 Communications.
56
connection with the defendants’ alleged misappropriation of the plaintiff’s
proprietary information and use of that information to create knock-off products for
sale to its customers. Id. at 19. The plaintiff added alleged co-conspirators who
allegedly purchased and sold some of the trade secrets as defendants tko the existing
lawsuit in November 2011 — more than three years after plaintiffC initially filed suit
for the misappropriation. Id. The plaintiff argued that his claim against the co-
conspirators did not accrue until July 2009 because that is iwhen the co-conspirators
were still selling the allegedly stollen trade secret information. Id. The court
rejected this argument, stating: “[a] continuing tort does not arise from one’s
copyrighting a song that another wrote and then repeatedly selling the song and
reaping profit from each sale. While it maly be said that the injury continues with
each sale and receipt of a royalty, theM act that caused the continuing injury was the
one act of copyrighting the song.” Id. at 21 (quoting Rogers v. Ardella Veigel Inter
Vivos Trust No. 2, 162 S.W.3d i281, 290 (Tex. App.–Amarillo 2005, pet. denied)).
Pohl “discovered” “the misappropriation” in the summer 2014, or
alternatively when heo exchanged letters with Nicholson in May and June 2015. If
anyone subsequenltly disclosed the trade secrets, it did not give rise to a new cause
of action. Thei express language of the TUTSA statute of limitation expressly
precludes “continuing tort” theories. TEX. CIV. PRAC. & REM. CODE § 16.010(a).
Accordingly, Pohl’s TUTSA claim against Kassab is barred by limitations and
summary judgment must be granted.
57
3. Pohl’s conversion and conspiracy claims are barred
by limitations.
Pohl’s common-law claims against Kassab for conversion and civil conspiracy
are also barred by the statute of limitations.
A person must bring suit for the conversion of personal proeperty “not later
than two years after the day the cause of action accrues.” TEX.
CIV. PRAC. & REM.
CODE § 16.003(a). Generally, the limitations period for a co
ntversion claim begins to
run at the time of the unlawful taking. Wells Fargo Bank Nw., N.A. v. RPK Capital
XVI, L.L.C., 360 S.W.3d 691, 700 (Tex. App.—Dallaes 2012, no pet.). As established
above, whether his claim accrued in 2014 or 201u5, more than two years had passed
by the time Pohl filed suit in August 2018. Therefore, his conversation claim is
barred. a
Pohl’s conspiracy claim is also barred by limitations. The Texas Supreme
Court has established that a claeim for civil conspiracy accrues when the underlying
tort accrues, and the limitatfion period for the conspiracy claim begins to run at the
same time as that for the underlying tort. Agar Corp., Inc. v. Electro Circuits Int’l,
LLC, 580 S.W.3d 136, 138 (Tex. 2019). “Understanding that civil conspiracy is a
theory of derivaitive liability, it follows that a civil conspiracy claim should share
both accruoal and the limitations period of the underlying wrong.” Id. at 144.
Because the underlying conversion and TUTSA claims are barred by limitations,
Pohl’s derivative conspiracy claim against Kassab is barred as well, and thus,
summary judgment must be granted.
58
E. Pohl’s claims are conclusively negated.
1. Pohl’s TUTSA claim is conclusively negated
because his alleged trade secrets were not actually
kept secret.
Kassab adopts the argument made and evidence identified on pkages 45-49 of
the Nicholson Motion as if set forth verbatim herein. See TEX. RC. CIV. P. 58. That
argument and evidence is equally applicable to Kassab and establishes that, as a
matter of law, Pohl did not take any measures, let alonei reasonable measures, to
keep his alleged information or client lists secret. Accordingly, Poh’s TUTSA claim
against Kassab fails as a matter of law, especially regarding the four barratry
lawsuits.
Moreover, Mary Frances Arnold, Polhl’s paralegal for approximately 35 years
testified that Pohl knew that a copy oMf all of his alleged contracts which he contends
are his trade secrets were kept by Walker and PMG in a storage shed.304 Arnold
also testified that Pohl, after ilearning that these contracts were in a storage shed,
never told Walker to secure the contracts better and never questioned whether the
storage shed was secoure, waterproof, air conditioned, had cameras, was locked or
fenced, or even inqluired who had access to the storage shed containing all of Pohl’s
alleged trade isecrets.305 Arnold also testified that she kept copies of Pohl’s client
files at her personal residence for many years.306
304 Exhibit 61-2022 Arnold Deposition, pp. 14, 45.
305 Exhibit 61-2022 Arnold Deposition, pp. 45-47, 53-54
306 Exhibit 61-2022 Arnold Deposition, pp. 112
59
Arnold further testified that 10,000 to 11,000 contracts sent to Pohl by PMG
were rejected and either sent back to Walker and PMG, thrown out or shredded.307
Arnold testified that the rejected contracts had no value.308 Arnold also testified
that she did not believe any of this material to be a trade secret.309 k
Arnold testified that PMG would send copies of contractsC to Pohl and then
Pohl would send those contracts to various other lawyers, like Jimmy Williamson,
Thomas & Wan and a Mr. Seerden.310 Arnold also testifiedi that a portal was set up
for BP claims that were not rejected and that these lawyers all had passwords for
the portal and see whatever client information was filed through them.311 Arnold
also testified that this information was sent to outside third parties at BP through
the portal.312 l
Furthermore, Arnold testifieMd that she never saw any confidentiality
agreement or non-disclosure agreement with any of these lawyers.313 She also
testified that she shared clienit information with Walker and PMG when she knew
that Walker was not Pohl’s employee.314 Arnold testified that never reprimanded
her for sharing clienot information with Maria Jeanfreau, Kirk Ladner, Jimmy
Williamson, Cyndil Rusnak, Mr. Wan, Mr, Thomas, Mr. Seerden or any of the dozens
of folks that wiorked for PMG and listed on its 1099’s.315
307 Exhibit 61-2022 Arnold Deposition, pp. 34-37, 39, 56, 60-61
308 Exhibit 61-2022 Arnold Deposition, pp. 34-37, 39, 41
309 Exhibit 61-2022 Arnold Deposition, pp. 47-48
310 Exhibit 61-2022 Arnold Deposition, pp. 50-51
311 Exhibit 61-2022 Arnold Deposition, pp. 51-52, 60, 119, 121
312 Exhibit 61-2022 Arnold Deposition, pp. 60
313 Exhibit 61-2022 Arnold Deposition, pp. 86-90, 104, 156-157, 174-175
314 Exhibit 61-2022 Arnold Deposition, pp. 173-174
315 Exhibit 61-2022 Arnold Deposition, pp. 173-175
60
Ladner, Seymour and Walker also testified that none of what Pohl now
alleges as his trade secrets was kept confidential. Ladner testified that he had no
confidentiality or non-disclosure agreements regarding client files and simply kept
in a file cabinet.316 Steve Seymour testified that Pohl never told hikm that client
lists were confidential.317 Seymour testified that PMG obtained clCients, created lists
of clients and then decided whether PMG wanted to refer the clients to Pohl or
Williamson.318 Moreover, Seymour testified that he kept icontact lists of all clients
at his home and that Pohl never asked for them.319 Seymour testified that he and
PMG created the lists of clients and that the lists contained all the names, address
and phone numbers of all the clients they referred to Pohl.320 Seymour also testified
that all of the client lists PMG created bellonged to PMG and that he simply threw
them away after the Mississippi LitiMgation ended because they were of no value.321
Walker testified that all of PMG, Helping Hands and GM Verification Team’s work
product was created by himi, Seymour and Ladner and that the work product
contained lists of all these entities clients contact information.322 Walker further
testified that he ando PMG would refer these clients to Pohl, other lawyers and
insurance adjustelrs, but the contact information was PMG’s work product.323
316 Exhibit 62-2022 Ladner Deposition, pp. 36, 41-45, 265
317 Exhibit 63-2022 Seymour Deposition, pp. 148-149
318 Exhibit 63-2022 Seymour Deposition, pp. 97-103, 105
319 Exhibit 63-2022 Seymour Deposition, pp. 142-143
320 Exhibit 63-2022 Seymour Deposition, pp. 97-99
321 Exhibit 63-2022 Seymour Deposition, pp. 142-149, 229-231
322 Exhibit 64-2022 Walker Deposition, pp. 66-70, 268-269
323 Exhibit 64-2022 Walker Deposition, pp. 13-14, 67-70, 148-149, 268-269
61
Moreover, Walker testified that he, Ladner and Seymour sold all of their and PMG’s
work product, including all the client lists to Scott Favre.324
2. Pohl’s claims fail because Pohl does not own the
purportedly stolen property and trade secrets.
“To bring a successful TUTSA claim, the claimant must firest show that it
owns a trade secret in the information it seeks to protect.” Title Source, Inc. v.
HouseCanary, Inc., 612 S.W.3d 517, 527 (Tex. App.—Satn Antonio 2020, pet.
denied); TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a
), (6); Morgan v. Clements
Fluids S. Tex., Inc., 589 S.W.3d 177, 186-87 (Tex. eApp.—Tyler 2018, no pet.). The
claimant must also demonstrate that it is “the puerson or entity in whom or in which
rightful, legal, or equitable title to, or the right to enforce rights in, the trade secret
is reposed.” TEX. CIV. PRAC. & REM. COaDE § 134A.002(3-a). Similarly, “[a] plaintiff
who has not shown title or some other right to possession of the property allegedly
converted may not maintain a esuit in conversion.” Catania v. Garage de Le Paix,
Inc., 542 S.W.2d 239, 242 f(Tex. Civ. App.—Tyler 1976, writ ref'd n.r.e.). Pohl’s
TUTSA and conversion claims against Kassab fail because, as a matter of law, he is
not the owner of the purportedly stolen property that he alleges is his trade secrets.
Pohl allegies that his trade secrets that were allegedly misappropriated are
“attorney–colient fee agreements with clients/prospective clients, compilations of
clients, other confidential communications between the clients/prospective clients
and Pohl, specialized legal forms …, … proprietary administrative client forms, fee-
agreement forms …, internal emails, propriety marketing information … and other
324 Exhibit 64-2022 Walker Deposition, pp. 13-14, 70-73, 111-112, 137-139, 228-231, 241-244, 248-254
62
work product relating to claims of Pohl’s clients and prospective clients.”325 But this
information makes up the client file that is the property of the client, not Pohl,
under Texas law.
“[T]he Texas Supreme Court recognized explicitly that an atktorney is an
agent of his client and implicitly that a client owns the contenCts of his or her
file.” In re McCann, 422 S.W.3d 701, 704-705 (Tex. Crim. App. 2013) (citing
Thomson v. Findlater Hardware Co., 205 S.W. 831, 832i (Tex. 1918)) (emphasis
added). “The attorney is the agent of the client, and the work product generated by
the attorney in representing the client belongs to the client.” In re George, 28
S.W.3d 511, 516 (Tex. 2000) (emphasis added). Under the disciplinary rules, an
attorney does not own and is therefore reqluired to promptly surrender “papers and
property to which the client is entitMled.” TEX. DISC. R. PROF'L COND. 1.15. Texas
courts have interpreted the word “property” to mean “the client’s papers and other
documents that the lawyer haid in his file.” TEX. COMM. ON PROF'L ETHICS Op. 570
(citing Hebisen v. State, 615 S.W. 2d 866 (Tex. App. – Houston [1st Dist.] 1981, no
writ)). In other wordso, all documents and information in the client file is property of
the client and not lPohl. See George, 28 S.W.3d at 516.
Moreoveir, work product and attorney-client communications are owned by
the client as part of the client’s file, and not the attorney. See TEX. COMM. ON PROF'L
ETHICS Op. 570 (noting that communications made to or on behalf of a client is work
product); Resolution Tr. Corp. v. H___, P.C., 128 F.R.D. 647, 648 (N.D. Tex. 1989)
(considering the issue of the ownership of files generated by a law firm during its
325 Amended Petition, at ¶ 20.
63
representation of a client and determining that the entire contents of the law firm’s
files concerning the representation of the client belonged to the client and ordering
the law firm to turn over the entire contents of the firm’s files, including work
product generated by the lawyer such as notes and legal memorandak). Therefore,
Pohl does not own the “internal emails … and other work productC relating to claims
of Pohl’s clients and prospective clients” that he claims is a trade secret.
While client lists can be considered a trade secreti, the lists that Precision
solicited to hire Pohl are owned by Precision, not Pohl.326 Scott Favre, the owner of
Precision, testified that Precision “solicited many of the marketing contacts
(individuals and businesses) on these lists for representation” by Pohl.327 Favre
testified that the “marketing lists containl the names of thousands of persons who
eventually became [Pohl’s] formerM clients, and/or whom [Pohl] solicited for
representation.”328 Favre made clear that the very information that Pohl claims are
the trade secretes allegedly cionverted by Kassab “were and are solely the work
product and property of Precision, developed during the normal course of its
marketing business.”3o29
Because Pohll does not own the purported trade secrets or property that he
alleges had beien converted, his TUTSA and conversion claims fail as a matter of
law. And because the conversion and statutory claims fail, Pohl’s claim for civil
conspiracy also fails. See Trammel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631,
326 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 15.
327 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 15.
328 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 15.
329 Exhibit 50, August 10, 2016 Affidavit of Scott Favre, ¶ 12 (emphasis added).
64
635 (Tex. 1997) (to prevail on a civil conspiracy claim, the plaintiff must show that
the defendant was liable for some underlying tort).
Moreover, all of the documents that Pohl alleges Kassab stole or converted
from him, are not Pohl’s, never belonged to Pohl and Pohl has nkever been in
possession of the documents. As stated above, Walker, LadnerC and Seymour all
testified that all of their marketing assets, including client contact information and
lists were created by them and their marketing companiesi and belonged to them.330
They testified that all of these assets and documents were in their possession and
then sold to Favre.331 Moreover, Favre testified that he purchased all of Walker,
Ladner, Seymour and PMG’s marketing assets, including all of their documents,
client lists and client contact informatilon.332 Furthermore, Favre testified in
Federal Court that he freely and volMuntarily gave his client contact information to
Tina Nicholson, Kassab and Montague to do whatever she or they wanted to do with
them.333 Favre even testified ithat Pohl’s counsel, Billy Shepherd told him on three
different occasions that he and Pohl did not care what he did with the contact
information.334 o
330 Exhibit 64-o2022 Walker Deposition, pp. 13-14, 67-70, 148-149, 268-269; Exhibit 63-2022 Seymour
Deposition, npp. 97-99, 142-149, 229-231; Exhibit 62-2022 Ladner Deposition, pp. 41-45, 129.
331 ExhibiUt 64-2022 Walker Deposition, pp. 13-14, 70-73, 111-112, 137-139, 228-231, 241-244, 248-
254; Exhibit 63-2022 Seymour Deposition, pp. 19-21, 22, 24-27, 29-30; Exhibit 62-2022 Ladner
Deposition, pp. 22, 44-45, 51, 53, 71-72, 104-105, 109-111, 114-116, 118, 129, 152, 153, 155-156, 160,
166-167, 181-183, 186-190.
332 Exhibit 64-2022 Walker Deposition, pp. 13-14, 70-73, 111-112, 137-139, 228-231, 241-244, 248-
254; Exhibit 63-2022 Seymour Deposition, pp. 19-21, 22, 24-27, 29-30; Exhibit 62-2022 Ladner
Deposition, pp. 22, 44-45, 51, 53, 71-72, 104-105, 109-111, 114-116, 118, 129, 152, 153, 155-156, 160,
166-167, 181-183, 186-190.
333 Exhibit 65-October 25, 2017 Testimony of Scott Favre, pp. 24-25, 91-93.
334 Exhibit 65-October 25, 2017 Testimony of Scott Favre, pp. 91-93.
65
Accordingly, Kassab never received anything that belonged to Pohl. All
documents Kassab obtained were created by Walker, Ladner, Seymour and PMG.
Walker, Ladner, Seymour sold PMG, along with all its assets, including client lists,
contact information and contracts to Favre and Favre freely and volkuntarily gave
some of the documents to Nicholson, Kassab and Montague. TherCefore, Kassab was
never and has never been in possession of any documents belonging to Pohl and
thus, Kassab is entitled to judgment as a matter of law. i
F. Pohl’s illegal acts (barratry and unauthorized practice of
law) precludes any form of reecovery against the
whistleblowers because his acts are inexorably
intertwined with his crimes. u
Pohl committed barratry and wants his whistleblowers to pay for his barratry
defense costs. But the well-establisheda and common-sense unlawful acts doctrine
precludes any recovery for Pohl’s crimes. Pohl violated the Texas laws and rules
governing lawyers by committeing barratry and practicing in other jurisdictions
without a license, sharing afn office and fees with non-lawyers, and he failed to
protect confidential client information in the process. Pohl also committed the
unauthorized practice of law in multiple states, including Louisiana, Alabama,
Florida, and Miississippi where he maintained an unauthorized law office. All of
Pohl’s claimos for recovery are inextricably intertwined with his violations of the
laws of Texas and other jurisdictions. According, his claims are barred by their
illegality.
66
1. The Unlawful Acts Doctrine.
More than a century ago, Texas developed the Unlawful Acts Rule, which
provides:
no action will lie to recover a claim for damages, if to establishk it the
plaintiff requires aid from an illegal transaction, or is uender the
necessity of showing or in any manner depending upon an iCllegal act to
which he is a party. 
Gulf, C. & S. F. RY. Co. v. Johnson, 621, 9 S.W. 602, 602-0t3 (1888). Courts have
simplified this analysis to whether the claim or damages are “inextricably
intertwined” with the illegal act or whether the eillegal act “contributed to the
injury.” McNally v. McNally, No. 02-18-00142-CuV, 2020 WL 5241189, at *10 (Tex.
App.—Fort Worth Sept. 3, 2020, pet. denied) (recognizing that the Unlawful Acts
Rule remains good law and using inteartwined language); Andrew Shebay & Co.,
P.L.L.C. v. Bishop, 429 S.W.3d 644, 648–49 (Tex. App.—Houston [1st Dist.] 2013,
pet. denied). The purpose of theis rule is to deter unlawful acts by making certain
“that the person should notf even entertain the hope of indemnity for the offense
committed.” Dover v. Baker, Brown, Sharman & Parker, 859 S.W.2d 441, 450 (Tex.
App.—Houston [1st Dist.] 1993, no writ) (internal quotations omitted). The rule can
be applied even iif one or more defendants have also committed an unlawful act. Id.
at 450-451 o(denying recovery to plaintiff who sued his attorney for malpractice
claiming he signed a false affidavit on the advice of his attorney who knew the
affidavit was unlawful).
67
2. Pohl knew his acts were illegal.
Pohl is well aware that his barratry precludes his claims. He asserted
“illegality and/or public policy” as a defense to paying his runners in the Mississippi
Litigation. As Pohl himself explains in his Motion to Dismiss Precisiokn’s Amended
Complaint: C
The gist of Precision’s claims, as plead in the Amenderdi Complaint, is
that Walker/Seymour/Ladner agreed to accept or asccepted money to
improperly solicit BP clients for the alleged “PDohl/Williamson joint
venture” and automobile accident clients for the salleged “Pohl/Ammons
joint venture.” s
Neither Walker/Seymour/Ladner nor Precirsion, as their assignee, can
recover from Pohl under any cause of acBtion. This is because: (1) under
Mississippi law, it is illegal and against public policy for a non-lawyer
to accept or agree to accept money yto improperly solicit clients for a
lawyer; (2) under Mississippi law, iit is illegal and against public policy
for lawyers to share legal fees with non-lawyers; and (3) under
Mississippi law, a claimant may not recover under any theory
(including contract, tort, or eqfuity) for illegal conduct or conduct that is
violative of public policy.335
And as Pohl himself further fargued, he should be judicially estopped from arguing
against this position nowy. To allow him to do so, as he says, “would allow [him] to
‘play fast and loose with the Court,’ which, in turn, would negatively impact the
reputation of thea judicial system.”336
The Mfississippi Litigation court agreed that illegality would apply to law
firms beUcause Mississippi laws “make it illegal to accept or agree to accept money to
commence or further prosecute a judicial action.”337 Additionally, the court went
onto explain that the Mississippi Rules of Professional conduct 5.4(a), 7.2(i), 7.3(a),
335 Nicholson Ex. 23, Pohl’s Motion to Dismiss in the Mississippi Litigation, Doc. 192 ¶ 6.
336 Nicholson Ex. 23, Ex. 23: Doc. 192 ¶ 5
337 Nicholson Ex. 25, Order on Pohl’s Motion to Dismiss in the Mississippi Litigation, Doc. 252 at 5.
68
and 8.4(a) preclude attorneys from entering into fee-splitting arrangements with
non-lawyers. Precision could not violate attorney misconduct rules “as they are
neither lawyers nor a law firm. The only ‘immoral or illegal act,’ then, would have
been committed by [Pohl].”338 Pohl’s illegal acts precluded him kand his co-
conspirators from asserting a defense of illegality because Cof his unlawful
conduct.339
Walker recently testified that Pohl paid him and otihers to solicit clients for
him in the form of an amount per contract that he and PMG were able to refer to
him.340 In fact, Walker called the money that Pohl paid PMG “barratry money.”341
Ladner recently testified that Pohl financed and paid bonuses of about 2,500 per
case that they signed up and referred to lPohl.342 Ladner also testified that Pohl
agreed to pay him, Walker and SeymMour a percentage of Pohl’s attorney’s fees from
each case.343 Seymour recently testified the same way, he stated that he and others
at PMG would do “cold callingi” on business to bring BP claims and that Pohl paid
them to do it.344 Even Mary Arnold, Pohl’s paralegal of 35 years admitted that Pohl
paid PMG a percentagoe of his fees for cases PMG referred to him.345 And, of course,
it is undisputed thlat Walker, Ladner and Seymour are not lawyers.
338 Nicholson Ex. 25, Doc. 252 at 6.
339 Nicholson Ex. 25, Doc. 252 at 6.
340 Exhibit 64-2022 Walker Deposition, pp. 174, 223-224, 228-231
341 Exhibit 64-2022 Walker Deposition, pp. 223-224
342 Exhibit 62-2022 Ladner Deposition, pp. 74-77, 78-79, 82-85, 96-99, 213-219.
343 Exhibit 62-2022 Ladner Deposition, pp. 74-77, 78-79, 82-85.
344 Exhibit 63-2022 Seymour Deposition, pp. 93, 82-91
345 Exhibit 61-2022 Arnold Deposition, pp. 66-71, 74-76, 108-111
69
3. Texas courts have applied the Unlawful Acts Rule
to preclude claims arising from barratry.
Texas courts have also applied Unlawful Acts Rule in BP solicitation cases.
In Truyen Luong v. McAllister, the appellate court affirmed summary judgment
where, as here, solicitation was an essential purpose of a fee-shaering agreement
that rendered the contract void for illegality. No. 01-17-00198-CV, 2018 WL
3651103, at *4 (Tex. App.—Houston [1st Dist.] Aug. 2, 2018t, pet. denied). Luong, a
paralegal, sued attorney McAllister for work performed on Gulf Coast Claims
Facility, BP, and Deepwater Horizon claims. Id. eat *1. Luong alleged that he
brought a lot of customers to McAllister in retuurn for an oral agreement to split
attorney’s fees. Id. at *1-2. McAllister moved to dispose of the claim arguing that
any summary judgment claim was baarred by illegality, which the trial court
granted. Id. The court of appeals agreed, stating “[t]his type of barratry contract is
prohibited by statute as well as eby disciplinary rule.” Id. at *3. The court explained:
[A] contract between fan attorney and one not an attorney, providing
that the [non-attorney] shall procure the employment of the [attorney]
by a third person for the prosecution of suits to be commenced in
consideration oof a fee to be procured or collected therein, is void as
against public policy, independent of statutes prohibiting the same.
Id. at *3. In turin, any such contract is void “to benefit and protect the public.” Id.
Luong’s agroeement to solicit was an “essential purpose” of their agreement, much as
the solicitation was an essential part of Pohl’s barratry practice. Id. at *4.
Accordingly, the appellate court affirmed the trial court’s grant of summary
judgment for McAllister, and this trial court should grant summary judgment here.
70
4. Texas courts have applied the Unlawful Acts Rule
to preclude claims for those who obtain property
illegally.
Pohl is precluded from recovering damages on trade secrets that he obtained
through illegal solicitation and the unauthorized practice of law. The ckase Sharpe v.
Turley, 191 S.W.3d 362 (Tex. App.—Dallas 2006, pet. denied) is iCnstructive on this
point. In Sharpe, the plaintiff, Sharpe, removed financial documents from a Roman
Catholic Diocese’s dumpster before alerting attorney Tuirley, who was suing the
Diocese. Turley obtained the documents from Sharpe via subpoena and following
the lawsuit both the Diocese and Sharpe contended they were the rightful owners of
the documents. Sharpe subsequently sued Turley for obtaining the documents
through fraud. The trial court granted sumlmary judgment under the Unlawful Acts
Rule and Fort Worth Court of AppeMals affirmed. Id. at 363-364. As the appellate
court explained, “Because [Sharpe’s] conduct in removing the Diocese’s items from
Diocesan property without itsi permission is the foundation of his allegation that he
has a superior right to the items and that alleged right is the basis of his fraud
claim against Turley, othe trial court properly granted summary judgment in favor of
Turley [under the lunlawful-acts rule].” Id. at 369.
As disciussed above, Pohl admits to engaging runners to illegally solicit
clients with offers to pay legal fees and bounties to the runners in states where he is
not licensed. Ladner, Talley, Santana, and Maxwell also testified that Pohl offered
to pay them bounties for signing up clients. Former clients who hired Pohl,
including Barry, Speck, Bethley, Bikumbu, Cheatham Sr. and Reese, all testified
71
that they were illegally and unethically solicited to hire Pohl. And, Pohl admitted in
the Mississippi Litigation that such conduct would be illegal and against public
policy.
A person cannot “receive trade secret protection for informkation about
ongoing illegal activities.” Alderson v. United States, 718 F. SupCp. 2d 1186, 1200
(C.D. Cal. 2010), aff'd, 686 F.3d 791 (9th Cir. 2012) (construing the Uniform Trade
Secrets Act and rejecting a claim of trade secret priotection for fraudulent
accounting practices in connection with Medicare frau
d); see also TEX. CIV. PRAC. &
REM. CODE §134A..008 (The Texas Uniform Trade Secrets Act “shall be applied and
construed to effectuate its general purpose to make uniform the law . . . among the
states enacting it.”). “[T]here simply canlnot be any trade secret about ongoing
illegality.” Alderson v. United StatMes, 718 F. Supp. 2d at 1200. “Notably, this
conclusion is consistent with the underlying justifications of trade secrets law,
which include ‘[t]he maintenaince of standards of commercial ethics.”’ Id. (quoting
Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 481–482 (1974)). ‘“Commercial
ethics’ are not maintaoined if businesses are able to conceal illegality.’” Id.
The existenlce of a privilege to disclose another's trade secret depends upon
the circumstanices of the particular case, including the nature of the information,
the purpose of the disclosure, and the means by which the actor acquired the
information. A privilege is likely to be recognized, for example, in connection with
the disclosure of information that is relevant to public health or safety, or to the
commission of a crime or tort, or to other matters of substantial public concern.
72
Merckle GmbH v. Johnson & Johnson, 961 F. Supp. 721, 733 (D.N.J. 1997);
Restatement (Third) of Unfair Competition § 40, cmt. c (1995). The Reporters’ Notes
to Section 40 indicate that “the policies underlying the privilege are similar to those
supporting the numerous state and federal 'whistleblower' statutes kthat prohibit
retaliatory personnel actions by employers against employeCes who disclose
violations to public officials.” Merckle GmbH, 961 F. Supp. at 733 quoting
Restatement (Third) of Unfair Competition § 40, Reporters’ iNotes, cmt. c.
Thus, Kassab was privileged to disclose the illegal acts of Pohl even if to do so
was to disclose his alleged trade secrets. Accordingly, Pohl cannot recover against
anyone for anything because be acquired his client files and purportedly
confidential and protected information thrlough illegal solicitation and unauthorized
practice of law. Thus, summary judgMment must be granted.
5. Pohl is precluded from claiming protection over
informatione he obtained through the unauthorized
practice oif law.
Moreover, Texas courts have consistently applied the Unlawful Acts Rule to
preclude recovery byo one who unlawfully practices a profession or occupation
without a requiredl license, even if the illegal practice was not the direct cause of the
injury. Rule 5.i05 of the Texas Rules of Professional Conduct makes it unlawful for a
Texas lawyer to commit the unauthorized practice of law in any other jurisdiction or
to assist a person who is not a member of the bar in the unauthorized practice of
law. See TEX. DISC. R. PROF’L COND. 5.05. Consequently, this Court should preclude
recovery for any claim arising from his unlawful practice in other jurisdictions.
73
For instance, the Dallas Court of Appeals refused to permit a car dealership
to recover from a sales agent that fraudulently withheld money relating to the sale
of cars because the dealership did not have the proper county license to sell cars:
Appellants argue allowing the Credit Union to prevail on the illkegality
defense allows it to walk away with a windfall. Although thies may be
true under these facts, to hold otherwise would allow iCndividuals
to indirectly profit from a business they are directly prohibited
from engaging in unless properly licensed by statute. This we
will not do. . . . We agree with the Credit Union thatt the rule applies
and bars appellants’ claims arising in tort biecause they are
inextricably intertwined with their illegal contract to sell automobiles
in Dallas County without a license.
Denson v. Dallas Cnty. Credit Union, 262 S.W.3d 846, 855 (Tex. App.—Dallas 2008,
no pet.) (emphasis added).
The law is even stricter when appliled to regulated professions. The Supreme
Court of Texas refused to permit an eMngineer to recover a fee where he had failed to
pay the renewal fee for his license and was, therefore, practicing engineering
without a current license anid in violation of the Texas Occupational Code. The
Court noted that the requirement of proper licensure for engineers was to
“safeguard life, healtho and property.” M. M. M., Inc., v. Mitchell, 265 S.W.2d 584,
585–86 (1954). l
Similarliy, the Fort Worth Court of Appeals affirmed a denial of recovery for a
person who practiced architecture without a license and then sued his partner in
the architectural firm. The Court stated that to permit recovery was to undermine
the purpose of licensure, which was “to safeguard life, health, property and the
public welfare, and to protect the public against the irresponsible practice of the
74
profession of architecture.” Farha v. Elam, 385 S.W.2d 692, 695 (Tex. Civ. App.—
Fort Worth 1964, writ ref’d n.r.e.).
As member of Texas Bar, Pohl is subject to the requirements imposed by the
Texas Rules of Professional Conduct. Rule 5.05 prohibits Texas atktorneys from
committing the unauthorized practice of law in other jurisdictionsC:
Rule 5.05. Unauthorized Practice of Law
A lawyer shall not: i
(a) practice law in a jurisdiction where doing so violates the regulation
of the legal profession in that jurisdiction; or e
(b) assist a person who is not a member ouf the bar in the performance
of activity that constitutes the unauthorized practice of law.
TEX. DISC. R. PROF’L COND. 5.05. The lcomment to the Rule explains, “Courts
generally have prohibited the unautMhorized practice of law because of a perceived
need to protect individuals and the public from the mistakes of the untrained and
the schemes of the unscrupuilous, who are not subject to the judicially imposed
disciplinary standards of competence, responsibility and accountability. . . Limiting
the practice of law too members of the bar protects the public against rendition of
legal services by ulnqualified persons.” Id. at cmt. 1.
By his oiwn admission, Pohl has never been licensed to practice law in any
state except Texas and Colorado.346 Yet, Pohl solicited and signed up auto accident
clients in Mississippi,347 Louisiana,348 Missouri,349 and Arkansas.350 Santana
346 Nicholson Ex. 31, Pohl Aug 2016 Depo at 8.
347 Exhibit 16, Declaration of Mae Berry; Exhibit 18, Declaration of Arthur Speck.
348 Exhibit 19, Declaration of Alphonse Bethley; Exhibit 29, Declaration of Mark Cheatham, Sr.
349 Exhibit 22, Declaration of Heraclite Bikumbu.
75
testified that she solicited BP clients for Pohl all across the Gulf Coast, including
Florida, Louisiana, and Mississippi.351 Further, Pohl assisted Walker, Ladner, and
the other runners in engaging in the unauthorized practice of law through soliciting
and signing up clients in those jurisdictions. In doing so, Pohl has violkated the laws
regulating Texas lawyers. Accordingly, Pohl cannot recover any Cfee related to his
unauthorized practice of law states in Louisiana, Alabama, Florida, and Mississippi
where he maintained an unauthorized law office. i
Pohl alleges that the Defendants “stole” his documents and information from
his “satellite law office” in Mississippi in 2014. In Mississippi, it is a misdemeanor
for a person to practice law without a license. The Mississippi Supreme Court has
established that “the ‘practice of law’ has lbeen defined to be as little as advising a
person of his legal rights.” In re WilliMamson, 838 So.2d 226, 234 (Miss. 2002) (citing
Darby v. Miss. State Bar, 185 So.2d 684, 687 (Miss. 1966)). The practice of law also
includes the solicitation of clieints and the investigation of a potential client’s claim.
Forbes v. St. Martin, 145 So.3d 1184 (Miss. App. 2013).
Pohl’s admittedo solicitation of Mississippi clients and his admitted visits to
Mississippi to confler with actual and potential clients constituted the unauthorized
practice of lawi in Mississippi. Pohl’s operation of a “law office” in Mississippi, and
even its very existence, violated Mississippi law. Pohl admitted that he was not
admitted to practice law in Mississippi and the law office was not associated with
350 Exhibit 35, Declaration of Lacy Reese.
351 Exhibit 6, September 26, 2016 Affidavit; Exhibit 8, Santana Depositions.
76
any Mississippi lawyer.352 Further, Pohl violated the law by sharing his office with
non-lawyers. Pohl admitted that he unlawfully shared his office space, telephones
and computers with a non-lawyer company, Precision, in violation of the Mississippi
Rules of Professional Conduct.353 In addition to his practice of law in thke Mississippi
office and his meetings with potential and actual Mississippi cliCents, Pohl admits
that, in 2012-2014, he spent the majority of his time practicing law at his
Mississippi “law office.”354 i
Further, Pohl assisted Walker, Ladner and the other runners in engaging in
the unauthorized practice of law in Mississippi by paying them for soliciting and
signing up clients on his behalf. Pohl admits that he gave Walker and Ladner
advertising brochures for them to distributle as widely as possible in Mississippi and
other states. He admits that he gaveM Walker and Ladner blank contracts that they
were to use to sign up clients for him.
Walker, Ladner and thie other runners illegally solicited on Pohl’s behalf all
of the Mississippians listed in the Gandy and Brumfield Petitions.355 Of the 133
plaintiffs in the Ganody lawsuit, 103 of them were Mississippians.356 Of the 272
Brumfield plaintiflfs, 153 were Mississippians.
Those Pietitions list people whom Pohl illegally solicited in Mississippi, either
directly or through his runners. Since solicitation of work for an attorney
constitutes the unauthorized practice of law in Mississippi, Pohl committed that
352 See Nicholson Ex. 2, Pohl May 2018 Depo 112:19-13:10.
353 Nicholson Ex. 1, Pohl Dec 2021 Depo at 16:15-21.
354 Exhibit 60, Sept. 17 2018 Deposition of Michael Pohl, at 292-293.
355 Nicholson Ex. 29, Brumfield Petition and Nicholson Ex. 30, Gandy Petition.
356 Nicholson Ex. 30, Gandy Petition at 2-6.
77
crime, or assisted the runners in committing it, as to every one of the Mississippi
plaintiffs in those two Petitions.
Pohl also committed the unauthorized practice of law in regard to Mae Berry
and Lisa and Arthur Speck, former clients who subsequently sued Pohkl for illegally
soliciting them in Mississippi.357 Pohl sent a runner, Ken TalleyC, to each of their
homes to solicit them as clients for Pohl regarding their personal injury claims.
Talley solicited these people for Pohl and induced them ito sign a Pohl attorney-
client contract.
Pohl committed a misdemeanor and violated other Mississippi laws by
engaging in the unauthorized practice of law in Mississippi while soliciting these
clients. Since all of the “trade secret” inlformation regarding Mississippians and
others was gathered during Pohl’s illMegal solicitation activities, he cannot show his
ownership of the information without referencing his illegal activities. Pohl cannot
show that documents at his Miississippi “law office” were misappropriated without
showing that he operated an illegal law office in Mississippi. Consequently, the
Unlawful Acts Rule oprecludes Pohl from recovering in this court for the alleged
misappropriation olf “trade secrets” relating to Mississippians, or any others.
In Louisiiana, it is a felony for a person or any entity not licensed to practice
law in Louisiana to engage in the practice of law; hold oneself out as being entitled
to practice law; provide legal advice; use language in advertising suggesting the
person is a lawyer or in any way suggesting that the person is entitled to practice
law; or advertise the existence of a “law office of any kind.” LA Rev. Stat. 37:213.
357 Nicholson Ex. 32, Berry Petition at 9-12.
78
Further, it is against Louisiana law for anyone not licensed to practice law to solicit
and sign up clients, or to investigate claims, in that state. In re Guirard, 11 So.3d
1017 (La. 2009).
Walker, Ladner and the other runners illegally solicited on Pohkl’s behalf all
of the Louisianans listed in the Gandy and Brumfield PetitCions. Of the 133
plaintiffs in the Gandy lawsuit, 7 of them were Louisianans.358 Of the 272
Brumfield plaintiffs, 54 were Louisianans.359 i
Those Petitions list people whom Pohl illegally solicited in Louisiana, either
directly or through his runners. Since solicitation of work for an attorney
constitutes the unauthorized practice of law in Louisiana, Pohl committed that
crime, or assisted the runners in commitlting it, as to every one of the Louisiana
plaintiffs in those two Petitions. M
In addition, Pohl committed the unauthorized practice of law in Louisiana in
relation to Mark Cheatham, iMark Cheatham, Jr. and Luella Miller, Louisianans
who filed the Cheatham lawsuit against Pohl. As demonstrated above, Pohl sent
runner Ken Talley too solicit them in Louisiana, which means he assisted Talley in
engaging in the unlauthorized practice of law in Louisiana. Pohl personally traveled
to Louisiana ito solicit and give legal advice to the Cheathams on at least two
occasions.
Pohl also committed the unauthorized practice of law in regard to Sandra
Johnson and Alphonse Bethley, Louisiana residents who filed the Gandy lawsuit
358 Nicholson Ex. 30, Gandy Petition at 2-9.
359 Nicholson Ex. 29, Brumfield Petition at 2-6.
79
against Pohl. Pohl sent runner Kirk Ladner to their home in Louisiana, where he
solicited them to hire Pohl for their personal injury claim and induced them to sign
a Pohl attorney-client contract. Accordingly, Pohl assisted Ladner in engaging in
the unauthorized practice of law in Louisiana. k
Pohl committed a misdemeanor and violated other LCouisiana laws by
engaging in the unauthorized practice of law in Louisiana while soliciting these
clients. Since all of the alleged “trade secret” informatioin regarding Louisianans
was gathered during Pohl’s illegal solicitation activities, he cannot show his
ownership of the information without referencing his illegal activities.
Consequently, the Unlawful Acts Rule precludes Pohl from recovering in this court
for the alleged misappropriation of “trade slecrets” relating to Louisianans.
It is a misdemeanor in AlabaMma to engage in the unauthorized practice of
law. AL Code § 34-3-1 (2021). It is also against Alabama law to provide assistance to
a person engaging in the unaiuthorized practice of law, which includes soliciting,
interviewing and signing up clients. Davis v. Alabama State Bar, 676 So.2d 306
(Ala. 1996). o
Walker, Ladlner and the other runners illegally solicited on Pohl’s behalf all
of the Alabamiians listed in the Gandy and Brumfield Petitions. Of the 133 plaintiffs
in the Gandy lawsuit, 21 of them were Alabamians.360 Of the 272 Brumfield
plaintiffs, 39 were Alabamians.361
360 Nicholson Ex. 30, Gandy Petition at 2-9.
361 Nicholson Ex. 29, Brumfield Petition at 2-6.
80
Those Petitions list people whom Pohl illegally solicited in Alabama, either
directly or through his runners. Since solicitation of work for an attorney
constitutes the unauthorized practice of law in Alabama, Pohl committed that
crime, or assisted the runners in committing it, as to every one of kthe Alabama
plaintiffs in those two Petitions. C
The unauthorized practice of law in Florida is a felony. Fla. Stat. 454.23.
The practice of law includes soliciting and interviewing cliients. The Florida Bar v.
Meserve, 372 So.2d 1373 (Fla. 1979). It is a violation of Florida law to assist
someone engaging in the unauthorized practice of law. Id.
Walker, Ladner and the other runners illegally solicited on Pohl’s behalf all
of the Floridians listed in the Gandy and lBrumfield Petitions. Of the 133 plaintiffs
in the Gandy lawsuit, 3 of them wereM Floridians.362 Of the 272 Brumfield plaintiffs,
22 were Floridians.363
Those Petitions list peiople whom Pohl illegally solicited in Florida, either
directly or through his runners. Since solicitation of work for an attorney
constitutes the unautohorized practice of law in Florida, Pohl committed that crime,
or assisted the runlners in committing it, as to every one of the Florida plaintiffs in
those two Petiitions.
362 Nicholson Ex. 30, Gandy Petition at 2-9.
363 Nicholson Ex. 29, Brumfield Petition at 2-6.
81
6. All of Pohl’s claims fail because he cannot show
ownership of the alleged trade secrets or damages
without showing that he acquired the information
through barratry or the unauthorized practice of
law.
Simply put, Pohl cannot prove that he is the owner of the ktrade secret
information without showing how he acquired it. The evidence Cpresented herein,
and in the Nicholson Motion, demonstrates that Pohl acquired the information
through illegal activity which included barratry and the iunauthorized practice of
law in multiple states and assisting others to engage in the unauthorized practice of
law. Since Pohl cannot prove his case without relying on his illegal activity, the
Unlawful Acts Rules bars his claims.
Pohl claims as damages his expenlses in defending against the Cheatham,
Berry, Gandy and Brumfield lawsuMits. He claims as damages the expenses he
incurred in defending against the Barratry Litigation and grievance filed by
Kassab. Pohl also claims thati publicity about his illegal activities caused economic
harm to his “law practice.” Thus, Pohl’s claimed damages flow solely from the fact
that people discoveredo his unlawful acts.
Pohl cannotl claim the expense of defending against the Cheatham, Berry,
Gandy and Briumfield lawsuits without addressing what the lawsuits are about. All
four of those lawsuits were filed against him by persons who were illegally solicited
by him, including some of his former clients. One of the cases (Barry) settled, and
two of the cases (Brumfield and Gandy) were dismissed on limitations. See
Brumfield v. Williamson, 634 S.W.3d 170 (Tex. App.—Houston [1st Dist.] 2021, pet.
82
denied); Gandy v. Williamson, 634 S.W.3d 214, 219 (Tex. App.—Houston [1st Dist.]
2021, pet. denied). Although the last case (Cheatham) was dismissed on summary
judgment, the court of appeals recently reversed because there was evidence of a
“barratry scheme.” See Cheatham v. Pohl, No. 01-20-00046-CV, 20k22 Tex. App.
LEXIS 649, at *25-26 (Tex. App.—Houston [1st Dist.] Jan. 27,C 2022, no pet. h.)
(mem. op.). Pohl cannot claim that Defendants caused him to defend against these
lawsuits without showing these people sued him for commiitting barratry.
Likewise, the Texas Bar grievance which Kassab submitted against Pohl is
based on Pohl’s illegal acts, which included barratry. Pohl cannot claim that
Defendants caused him to defend against a bar complaint without showing that it
concerned his unlawful activities. Regardlelss, Pohl’s claim for damages arising from
any grievances are barred by immuniMty, as stated above.
Finally, Pohl claims that publicity about his illegal activities damaged his
law practice. Pohl has not andi cannot prove these damages without showing that he
committed unlawful acts. Since his claimed damages all spring from his former
clients and others beocoming aware of his barratry and other illegal activities, he
cannot prove any olf his damages without discussing barratry.
G. Piohl is not permitted to recovery as damages the
oattorney’s fees he incurred in the four barratry lawsuits
and two disciplinary grievances.
Damages in a TUTSA suit are generally comprised of losses such as “the
value of the plaintiff’s lost profits, the defendant’s actual profits from the use of the
secret, the value a reasonably prudent investor would have paid for the trade secret,
83
the development costs the defendant avoided by the misappropriation, and a
reasonable royalty.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 710–11
(Tex. 2016).
There are no differences between existing Texas common lakw and
TUTSA regarding the economic damages available for traede secret
misappropriation. Under Texas common law, the plCaintiff was
permitted to recover damages based on the value of what has been lost
by the plaintiff (lost profits) or the value of what has been gained by
the defendant (unjust enrichment). The plaintiff alsot could recover a
reasonable royalty for the defendant’s use of the plaiintiff’s trade secret.
Joseph F. Cleveland, Jr., J. Heath Coffman, The Texas Uniform Trade Secrets Act,
Tex. J. Bus. L. 323, 328 (2013).
Nonetheless, Pohl here seeks as damages the fees he incurred in defending
against the four underlying barratry suitsl and two disciplinary grievances. Nothing
the TUTSA statute permits recoverMy of such “damages”—indeed, the prevailing
party is not even entitled to recovery of its attorney’s fee under TUTSA, but instead,
the trial court has discretion wihether to award fees and only if willful and malicious
misappropriation exists. T EX. CIV. PRAC. & REM. CODE § 134A.005. If the TUTSA
plaintiff is not guaraonteed recovery of fees in the actual TUTSA suit, there is no
reason to permit thle TUTSA plaintiff to recover fees incurred in other suits.
Moreoveir, even applying common-law, Pohl is not entitled to attorney’s fees
as damages. “Whether a party is entitled to attorney’s fees is a question of
law.” Sunchase IV Homeowners Ass’n, Inc. v. Atkinson, 643 S.W.3d 420, 422 (Tex.
2022). “In Texas, attorney’s fees expended in prior litigation generally are not
recoverable as damages; attorney’s fees are recoverable only when an agreement
84
between the parties so provides.” Martin-Simon v. Womack, 68 S.W.3d 793, 797–98
(Tex. App.—Houston [14th Dist.] 2001, pet. denied). As the Supreme Court has
explained, “For more than a century, Texas law has not allowed recovery of
attorney’s fees unless authorized by statute or contract. This rule isk so venerable
and ubiquitous in American courts it is known as ‘the American CRule.’” Tony Gullo
Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310–11 (Tex. 2006). The Supreme Court of
Texas has never adopted that equitable “tort of another” eixception to the American
Rule. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research
Corp., 299 S.W.3d 106, 119 (Tex. 2009) (declining to address whether the “tort of
another” exception set out in section 914(2) of the Restatement should be adopted in
Texas); see also Alvarez v. Agyemang, No.l 02-19-00301-CV, 2020 WL 719440, at *3
(Tex. App.—Fort Worth Feb. 13, 2020M, no pet.) (mem. op.) (“We do not hold that the
equitable exception allows the recovery of a prevailing party’s attorney’s fees even
in the absence of a contract or iauthorizing statute.
Indeed, the Texas Supreme Court’s language in Gullo and that court’s failure
to expressly adopt oor reject this equitable theory indicate that equity does not
extend this far.”); lRiner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011,
no pet.) (“Givein the supreme court’s faithful adherence to the American Rule, and
its strong statement in Tony Gullo that trial courts lack the inherent authority to
award attorney’s fees contrary to the Rule, we decline to adopt a
new equitable exception to the Rule.”); Naschke v. Gulf Coast Conference, 187
S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (declining to
85
adopt the “tort of another” exception to the American Rule because “we are bound to
follow the existing laws of the State, we are not at liberty to adopt a theory of
recovery that has not been enacted by the Legislature or adopted by the Texas
Supreme Court”).364 k
No statute or contract provides Pohl the right to recover hisC attorney’s fees in
the two barratry suits he prevailed on, nor on the barratry suit he settled and the
ongoing suit. Application of the American Rule to preiclude Pohl’s request for
attorney’s fees damages makes sense here especially because Pohl was sued by
persons accusing him of improperly soliciting them in violation of barratry laws and
ethical rules—those persons exercised their right and choice to file suit against Pohl
for his wrongdoing. Under such circumstalnces, it would be inequitable and violate
public policy to allow Pohl to insuMlate himself from responsibility for his own
wrongdoing.
In a similar vein, even iif some equitable exception could apply here to permit
a plaintiff to recover its attorney’s fees defending an underlying lawsuit, it would
apply only if Pohl owere wholly innocent relative to the barratry suits and
grievances. See Pelr-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 WL
1539291, at *8i (Tex. App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.)
364 Prior to Tony Gullo and Akin Gump, the First Court of Appeals recognized the equitable “tort of
another” exception to the general rule. See Massey v. Columbus State Bank, 35 S.W.3d 697, 701 (Tex.
App.—Houston [1st Dist.] 2001, no pet.). Tony Gullo and Akin Gump have driven home that the
general rule against allowing recovery of fees as damages is firm and the Fourteenth Court of
Appeals’ rejection of the “tort of another” exception in Martin-Simon and Naschke should be applied
here, especially because Pohl’s own wrongdoing caused him to be sued for barratry. See also
Stumhoffer v. Perales, 459 S.W.3d 158, 168 (Tex. App.—Houston [1st Dist.] 2015, pet. denied)
(“Texas has long adhered to the American Rule with respect to awards of attorney’s fees, which
prohibits the recovery of attorney’s fees from an opposing party in legal proceedings unless
authorized by statute or contract.”).
86
(“[U]nder the ‘tort of another’ exception, BSG is not entitled to
recover attorney’s fees incurred in the arbitration because it is not a wholly
innocent party.”); Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 834–35
(Tex. App.—Austin 2002, no pet.) (holding trial court properly refused kto award fees
to plaintiff because it was found partly negligent in underlyCing suit); Dayton
Hudson Corp. v. Eldridge, 742 S.W.2d 482, 488 (Tex. App.—Dallas 1987, writ
denied) (“Therefore, in the present case, Eldridge is not ani innocent party forced to
incur costs and expenses, including attorneys’ fees, to be treated as the legal
consequences of some original wrongful act of another and permitted to be recovered
as damages.”).
As an initial matter, the Cheathalm barratry suit is ongoing, with Pohl
recently losing the appeal in that caMse, even on rehearing, meaning, putting aside
all the other reasons why his claims fail, it is premature for him to be seeking fees
related to Cheatham. Regaridless, the fact the Pohl violated ethical rules and
committed barratry in having others solicit the persons who filed the barratry suits
proves he was not whoolly innocent.
Finally, beclause, as established above, Pohl failed to maintain the secrecy of
his alleged traide secrets, he cannot recover any damages involving those alleged
trade secrets even if attorney’s fees could be recovered as damages:
Like injunctive relief, a monetary recovery for trade secret
misappropriation is appropriate only for the period in which
information is entitled to protection as a trade secret, plus the
additional period, if any, in which a misappropriator retains an
advantage over good faith competitors because of misappropriation.
Actual damage to a complainant and unjust benefit to a
87
misappropriator are caused by misappropriation during this time
alone. See Conmar Products Corp. v. Universal Slide Fastener Co., 172
F.2d 150 (CA2, 1949) (no remedy for period subsequent to disclosure of
trade secret by issued patent); Carboline Co. v. Jarboe, 454 S.W.2d 540
(Mo. 1970) (recoverable monetary relief limited to period that it would
have taken misappropriator to discover trade secret without
misappropriation). k
Uniform Trade Secrets Act at § 3 DAMAGES, comment. HenCce, for numerous
reasons, Pohl’s cannot recover his attorney’s fees as damages in this suit.
NO-EVIDENCE MOTION FOR SUMMARY JUiDGMENT
As stated above, Pohl sued the Kassab Defendants for (1) conversion, (2)
violations of the Texas Uniform Trade Secrets Actg (“TUTSA”), and civil conspiracy.
Because Pohl, after an adequate time for discovery, can produce no evidence to
support each of these claims he has alleged against the Kassab Defendants, the
Court should grant this motion and dMismiss Pohl’s claims with prejudice.
oSTANDARD
Under Texas Rule of Civil Procedure 166a(i), after an adequate time for
discovery has elapsed, the party without the burden of proof may, without
presenting evidence, omove for summary judgment on the grounds that there is no
evidence to supporl t an essential element of the non-movant’s claim. TEX. R. CIV. P.
166a(i). The buirden then shifts to the non-movant to produce evidence that raises a
fact issue non the challenged elements. Howell v. Hilton Hotels, 84 S.W.3d 708, 711-
12 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “If the proffered evidence [in
response to a motion for summary judgment] is so weak as to create no more than a
‘mere surmise or suspicion’ of a vital fact, less than a scintilla of evidence exists
because such evidence lacks probative force, and in legal effect, is no evidence at
88
all.” Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 164 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied) (citing Kindred v. Conn/Chem., Inc., 650 S.W.2d 61,
63 (Tex. 1983)). Further, “some suspicion linked to other suspicion produces only
more suspicion, which is not the same as some evidence.” Marathon Cokrp. v. Pitzner,
106 S.W.3d 724, 727–28 (Tex. 2003) (quoting Johnson v. Brewer C& Pritchard, P.C.,
73 S.W.3d 193, 210 (Tex. 2002)).
An adequate time for discovery has passed for Poihl to obtain evidence to
prove his affirmative claims. Indeed, “[a] discovery period set by pretrial order
should be adequate opportunity for discovery unless there is a showing to the
contrary[.]” TEX. R. CIV P. 166a cmt. That date has long passed. Therefore, this no-
evidence motion for summary judgment onl Pohl’s affirmative claims is proper.
RGUMENT
A. Pohl has no evidence to support his conversion claims
against the Kassaeb Defendants.
To establish a claim ffor conversion, a plaintiff must prove that: (1) plaintiff
owned or had possession of the property or entitlement to possession, (2) defendant
unlawfully and without authorization assumed and exercised control over the
property to the eixclusion of, or inconsistent with, the plaintiff's rights as an owner,
(3) plaintiffo demanded return of the property, and (4) defendant refused to return
the property. Freezia v. IS Storage Venture, LLC, 474 S.W.3d 379, 386-87 (Tex.
App.—Houston [14th Dist.] 2015, no pet.). Pohl has no evidence of elements (1), (2),
(3) or (4).
89
First, Pohl has no evidence that he owned or had possession of the property
or entitlement to possession of any of the allegedly converted property. Second, Pohl
has no evidence that the Kassab Defendants unlawfully and without authorization
assumed and exercised control over the property to the exclusion of, ork inconsistent
with Pohl’s rights as an alleged owner. Third, Pohl has no Cevidence that he
demanded return of the property from the Kassab Defendants. Fourth, Pohl has no
evidence that the Kassab Defendants refused to return thie property after demand
was allegedly made. Accordingly, Pohl’s conversion claim against the Kassab
Defendants must be dismissed on summary judgment.
Moreover, a plaintiff who establishes conversion is entitled to either (1) the
return of the property and damages forl its loss of use during the time of its
detention, or (2) the value of the pMroperty. See Wiese v. Pro Am Svcs. Inc., 317
S.W.3d 857, 862 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Pohl cannot
produce evidence as to the damiages for the property’s loss of use during the time of
its detention or the value of the allegedly converted property. For these reasons too,
Pohl’s conversion claoim against the Kassab Defendants must be dismissed on
summary judgmenlt.
B. Piohl has no evidence to support his claims of TUTSA
oviolations.
The elements of a cause of action for trade-secret misappropriation under
TUTSA are the following: (1) the plaintiff owned a trade secret; (2) the defendant
misappropriated the trade secret; and (3) the misappropriation proximately caused
plaintiff damages. TEX. CIV. PRAC. & REM. CODE §§ 134A.002(1), (3), (6),
90
134A.004(a); Malone v. PLH Group, Inc., No. 01-19-00016-CV, 2020 WL 1680058, at
*5 (Tex. App.—Houston [1st Dist.] Apr. 7, 2020, pet. denied) (mem. op.); Morgan v.
Clements Fluids S. Tex., Ltd., 589 S.W.3d 177, 186 (Tex. App.—Tyler 2018, no pet.).
Pohl has no evidence to support elements (1), (2) or (3). k
First, Pohl must produce evidence that he owned a purpoCrted trade secret.
Pohl complains that the Kassab Defendants stole his “client files” to solicit his
clients. However, Pohl cannot produce any evidence thiat he owns a client file
because a lawyer does not own his client’s files as a matter of law.
Under TUTSA, for something to be a “trade secret,” the owner must have
taken reasonable measures under the circumstances to keep the information secret,
and the information must derive indepenldent economic value, actual or potential,
from not being generally known to,M and not being readily ascertainable through
proper means by, another person who can obtain economic value from the disclosure
or use of the information. TEiX. CIV. PRAC. & REM. CODE § 134A.002(6). Pohl can
present no evidence to establish this element. Pohl has no evidence that, for each
purported trade secreot, Pohl took reasonable measures under the circumstances to
keep the informatlion secret or that the information derived independent economic
value, actual oir potential, from not being generally known to, and not being readily
ascertainable through proper means by, another person who can obtain economic
value from the disclosure or use of the information. Moreover, a person must have
rightful, legal, or equitable title to trade secrets in order to be an “owner.” Id. at §
91
134A.002(3-a). Pohl has no evidence that he had a rightful, legal, or equitable title
to the purported trade secrets.
Second, Pohl has no evidence that the Kassab Defendants misappropriated
any of Pohl’s purported trade secrets. Additionally, to prove “willful aknd malicious
misappropriation,” a plaintiff must show defendant engagedC in “intentional
misappropriation resulting from the conscious disregard of the rights of the owner
of the trade secret.” Id. at § 134A.002(7). Pohl has no eividence that the Kassab
Defendants engaged in willful and malicious appropriation of any alleged trade
secret or that the Kassab Defendants engaged in intentional misappropriation
resulting from the conscious disregard of the rights of Pohl. Pohl can produce no
evidence of the Kassab Defendants’ intent.l
Third, Pohl has no evidenMce that the Kassab Defendants’ alleged
misappropriation of any alleged trade secrets proximately caused Pohl injury or
actual damages recoverable uinder TUTSA. Pohl has no evidence supporting his
claim for attorney’s fees. Pohl has no evidence of business losses.
Additionally, aossuming, arguendo, that the law allowed Pohl to recover as
damages the attolrney’s fees he incurred in defending against the four barratry
lawsuits, Pohli has no evidence (1) showing as to each of the plaintiffs in each of
those lawsuits that he had rightful, legal, or equitable title to their names and
contact information—meaning he properly and ethically came to possesses and can
properly and ethically use that information—(2) he took reasonable measures under
the circumstances to keep secret their names and contact information, and the
92
information derived independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable through proper means by,
another person who can obtain economic value from the disclosure or use of the
information, (3) the Kassab Defendants misappropriated their namesk and contact
information, and that (4) the Kassab Defendants’ misappropriatiCon of their names
and contact information proximately caused plaintiff actual damages recoverable
under TUTSA. i
Fourth, Pohl has no evidence that he is wholly innocent in the illegal
obtainment of any client for which his claims are based. Meaning, Pohl has no
evidence to show that he was not breaking the law when he obtained a client for
which his claims are based. The fact thatl he admittedly violated the unauthorized
practice of law during the entire perMiod for which he obtained clients or potential
clients, proves there is no evidence of his legally obtaining the clients for which he
basis his claims. i
C. Pohl has no evidence to support his conspiracy claim.
An action for coivil conspiracy has five elements: (1) a combination of two or
more persons; (2) lthe persons seek to accomplish an object or course of action; (3)
the persons reiach a meeting of the minds on the object or course of action; (4) one or
more unlawful, overt acts are taken in pursuance of the object or course of action;
and (5) damages occur as a proximate result. Tri v. J.T.T., 162 S.W.3d 552, 556
(Tex. 2005); Haynes v. Bryan, No. 01-20-00685-CV, 2022 WL 2024837, at *4 (Tex.
App.—Houston [1st Dist.] June 7, 2022, no pet. h.).
93
Pohl has no evidence that (1) the Kassab Defendants were involved in a
combination of two or more persons; (2) that any persons involved in the alleged
conspiracy sought to accomplish an object or course of action; (3) the persons
involved reached a meeting of the minds on the object or course of actikon; (4) one or
more unlawful, overt acts were taken in pursuance of the object oCr course of action;
or (5) damages occurred as a proximate result.
CONCLUSION & PRAYER
For the foregoing reasons, the Court should grant Kassab’s Motion
Traditional Motion for Summary Judgment and No-Evidence Motion for Summary
Judgment and order that Plaintiffs, Michael A. Pohl and Law Office of Michael A.
Pohl, PLLC take nothing on their claimsl against Lance Christopher Kassab and
The Kassab Law Firm. M
Respectfully submitted,
i THE KASSAB LAW FIRM
LANCE CHRISTOPHER KASSAB
 Texas State Bar No. 00794070
a lance@kassab.law
c DAVID ERIC KASSAB
f Texas State Bar No. 24071351
david@kassab.law
U NICHOLAS R. PIERCE
Texas State Bar No. 24098263
nicholas@kassab.law
1214 Elgin Street
Houston, Texas 77004
Telephone: 713-522-7400
Facsimile: 713-522-7410
E-Service: eserve@kassab.law
94
ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I certify that on this date, February 24, 2023, I electronicaklly filed this
document with the Clerk of the Court using the eFile.TXCourts.gov eelectronic filing
system which will send notification of such filing to all parties or cCounsel of record.
LANCE CHRISTOPHER KASSAB
95
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 73091211
Status as of 2/24/2023 3:38 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizszell.com 2/24/2023 1:36:14 PM SENT
Harris Wells hwells@reynoldsgfrizzell.com 2/24/2023 1:36:14 PM SENT
Todd Taylor ttaylor@jandfluaw.com 2/24/2023 1:36:14 PM SENT
Scott M.Favre scott@favrepa.com 2/24/2023 1:36:14 PM SENT
Lawyer Wade lawyerwyade@hotmail.com 2/24/2023 1:36:14 PM SENT
Andrea Mendez anadrea@kassab.law 2/24/2023 1:36:14 PM SENT
Lance Kassab lance@kassab.law 2/24/2023 1:36:14 PM SENT
David Kassab odavid@kassab.law 2/24/2023 1:36:14 PM SENT
Nicholas Pierce nicholas@kassab.law 2/24/2023 1:36:14 PM SENT
Chris C.Pappas f cpappas@krcl.com 2/24/2023 1:36:14 PM SENT
Todd Taylor ttaylor@jandflaw.com 2/24/2023 1:36:14 PM SENT
Misty Davis p mdavis@reynoldsfrizzell.com 2/24/2023 1:36:14 PM SENT
Non-Party Witness Billy SheCpherd bshepherd@spcounsel.com 2/24/2023 1:36:14 PM SENT
Lance Kassab a l eserve@kassab.law 2/24/2023 1:36:14 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 2/24/2023 1:36:14 PM SENT
Non-Party Edgar Joaimes edgarsroom@gmail.com 2/24/2023 1:36:14 PM SENT
Murray FoglerU mfogler@fbfog.com 2/24/2023 1:36:14 PM SENT
Murray JFogler mfogler@foglerbrar.com 2/24/2023 1:36:14 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 2/24/2023 1:36:14 PM SENT
Benjamin Ritz britz@thompsoncoe.com 2/24/2023 1:36:14 PM SENT
Zandra EFoley zfoley@thompsoncoe.com 2/24/2023 1:36:14 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 2/24/2023 1:36:14 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 2/24/2023 1:36:14 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 2/24/2023 1:36:14 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 73091211
Status as of 2/24/2023 3:38 PM CST
Case Contacts r i
Murray J. Fogler 7207300 mfogler@foglerbrar.com 2/24/2023 1:36:14 PM SENT
Kelly Skelton reception@kassab.lasw 2/24/2023 1:36:14 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbgrar.com 2/24/2023 1:36:14 PM SENT"
46,2022-11-30,MSJ,Pohl,Partial MSJ on Barratry Liability,Plaintiffs' Rule 166(g) Motion on Barratry Liability and Specific Affirmative Defenses Asserted by the Kassab Defendants,"Pre-trial motion filed November 30, 2022 by Pohl, five days before the December 5, 2022 trial setting. Seeks legal rulings under Tex. R. Civ. P. 166a(g) to narrow trial issues by: (1) finding barratry is not legally relevant to this lawsuit, and (2) striking 10+ of Kassab's affirmative defenses as barred as a matter of law.",MSJ-3,N/A,Phase 3,2022-11-30_MSJ_Pohl-Partial-MSJ-Barratry-Liability_FILED.pdf,"Find that: (1) establishing whether barratry occurred is not legally relevant to this lawsuit; (2) Kassab's affirmative defenses of unlawful acts, illegality, criminal acts, in pari delicto, justification, immunity under Rule 17.09, unclean hands, release, accord and satisfaction, estoppel, subject to a valid contract, assumption of the risk, and contribution are barred as a matter of law","11/30/2022 8:20 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 70589892
By: Deandra Mosley
Filed: 11/30/2022 8:20 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ r
LANCE CHRISTOPHER § l
KASSAB, et. al §
§ c
Defendants. § 189TH JUDrICIAL DISTRICT
PLAINTIFFS’ RULE 166(g) MOTION ON BARRATRY LIDABILITY AND SPECIFIC
AFFIRMATIVE DEFENSES ASSERTED BY THE KASSAB DEFENDANTS
Under Texas Rule of Civil Procedure 166(g), Plaintiffs Michael Pohl and Law Office of
Michael A. Pohl PLLC (collectively “Pohl”) file this Motion on the issues of the relevance of
barratry liability and the legal viability of specific affirmative defenses asserted by the Kassab
defendants (the “Motion”). Pohl requests tahat the Court find Defendants Lance Christopher
Kassab and Lance Christopher Kassab P.C.’s (collectively, “Kassab”) theories regarding
establishing barratry and certain otheer legal defenses fail as a matter of law.
f I. STANDARD
Under Texas Rule ofy Civil Procedure 166(g), this Court can decide legal issues at pretrial
“to assist in the disposition of the case without undue expense or burden to the parties . . . .” See
Tex. R. Civ. P. 166a(g). Allowing this trial to subsume the question of whether Pohl committed
barratry, in connfection with clients whose information Kassab later misappropriated, would greatly
extend the length of trial, and it would needlessly complicate the issues presented to the jury. A
legal determination by this Court that whether barratry did in fact occur is immaterial to Pohl’s
claims—whether as a matter of denial or as a defense—would assist in disposing of this case with
less undue burden and expense. Furthermore, determining whether certain defenses fail as a matter
of law is a set of legal questions the Court can decide to appropriately focus the trial in this case.
II. DISCUSSION
To prevent “undue expense” and additional “burden to the parties,” and to ensure that trial
does not proceed for longer than is necessary, this Court should find that establishing whether
barratry occurred is not legally relevant to the material issues in this case and that ten of Kassab’s
affirmative defenses are not legally viable and have no bearing at trial. l
A. The alleged existence of barratrous conduct by Pohl is not ac dtenial of or defense to
Pohl’s claims, and Kassab’s desire to present evidence on irti is not material.
Barratry does not constitute a defense to claims for theft oDf tirade secrets,1 conversion,2 or
conspiracy.3 Even if Kassab could show that all of Pohl’s fosrmer and prospective clients were
obtained through barratry—and he cannot—it would not prevent, nor is it material to, Pohl’s ability
to establish the elements of his claims. 4 Because the alleged existence of barratry does not impact
Pohl’s ability to establish his claims, nor does it constitute a defense to Pohl’s claims if established,
the Court should find that as a matter of lawM, establishing barratry is not legally relevant at trial.
Kassab’s position is that, as oa lawyer, he was entitled or otherwise justified in
misappropriating and converting ncot only another lawyer’s proprietary information, but also
confidential and privileged information about another lawyer’s clients simply because Kassab
hoped to find evidence of bparratry claims to pursue against Pohl. Kassab likewise suggests that it
was appropriate to solicit and entice the employees or contractors of another lawyer to violate their
1 A trade secrets cfl f aim under the Texas Uniform Trade Secrets Act (“TUTSA”) involves the following elements: (1)
a plaintiff owned trade secrets; (2) a defendant misappropriated the trade secrets; and (3) that the misappropriation
caused the plaintiff damages. See Tex. Civ. Prac. & Rem. Code §§ 134A.002 & 134A.004.
2 A conversion claim can include the following elements: “(1) the plaintiff owned, had legal possession of, or was
entitled to possession of the property; (2) the defendant assumed and exercised dominion and control over the property
in an unlawful and unauthorized manner, to the exclusion of and inconsistent with the plaintiff’s rights; and [applicable
in some cases] (3) the defendant refused the plaintiff’s demand for return of the property.” Akin v. Santa Clara Land
Co., Ltd., 34 S.W.3d 334, 344 (Tex. App.—San Antonio 2000, pet. denied); see also Hunt v. Baldwin, 68 S.W.3d 117,
131 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
3 The elements of conspiracy are familiar: (1) a combination of at least two persons; (2) the persons seek to accomplish
an object or course of action; (3) there is a meeting of the minds on the object or course of action; (4) one or more
unlawful, overt acts are taken in furtherance of the conspiracy; and (5) damages occur.
4 Pohl asserts claims for conversion, TUTSA violations, and conspiracy. Plaintiff’s First Amended Petition ¶¶ 35–43.
obligations by disclosing confidential information, simply because Kassab believed it could help
support a claim against Pohl. However, the law does not authorize tortious conduct because a
person may believe that conduct could help them uncover some other allegedly wrongful acts.
As will be discussed further in the motions in limine and before the Coukrt, the topic of
barratry is relevant to this case in certain, limited respects. The fact that Kassabl wanted to and did
pursue barratry claims against Pohl necessarily will be a part of this casec. But evidence trying to
prove the merits of such claims for barratry should not be presented sto the jury. However, since
the start of this lawsuit, Kassab has attempted to inject the broader question of whether barratry
did in fact occur into this lawsuit—Kassab even surreptitiously asserted claims pending in other
lawsuits as counterclaims in this lawsuit. But there is a reason that Kassab uses bombastic
language and allegations rather than clear and plain language to articulate the relevance of
barratry—Kassab is intent on using this issuea to paint Pohl in a negative light in front of the jury.
Still, any presentation of evidence directed at establishing whether Pohl violated rules against
barratry is not material to the issues ine this case, because establishing barratry does not (1) prevent
Pohl from establishing the elemenfts of his claims; and (2) is not a defense to Pohl’s claims.
1. Establishing barryatry does not deny the factual bases of Pohl’s claims or prevent Pohl
from establishing the elements of his claims.
On their face, the elements necessary to establish a TUTSA claim, a conversion claim, and
the existence of ac conspiracy have nothing to do with barratry. Kassab conflates the idea that a
client contract procured through barratry is voidable (in an action brought by the client who is a
party to the contract) with the distinct issue of ownership of trade secret information. Establishing
that barratry occurred does not entail revoking an attorney’s ownership of compilations of
information about clients the attorney has represented. Nor does a contract’s voidability impact
the ownership of information reflected in the contract. Thus, whether Pohl committed barratry is
not a relevant matter that could deny Pohl the ability to establish the elements of his claims.
Kassab incorrectly appears to believe that barratry may implicate Pohl’s ownership of the
trade secrets. There is no legal basis for this position. Because establishing that bakrratry occurred
will not operate to deny Pohl the ability to establish his claims, it is not a relelvant issue that the
jury needs to consider or receive evidence on. c
i. The alleged barratry does not impact Pohl’s ownershisp of the trade secrets.
To prevail on his TUTSA claim, Pohl must be an owner of trade secrets. The statute
provides that owner “means, with respect to a trade secret, the person or entity in whom or in which
rightful, legal, or equitable title to, or the right to enforce rights in, the trade secret is reposed.”
See Tex. Civ. Prac. & Rem. Code § 134A.002(3 n -a).5 To the extent that Kassab argues that
establishing that Pohl committed barratry impracts Pohl’s ability to be the owner of any trade
secrets, that argument fails as a matter of law. Kassab has conflated the enforceability of a client
contract against a client allegedly eobtained through barratry with whether Pohl owns the
information regarding with whomf Pohl has contracted—information reflected on copies of Pohl’s
own client contracts. y
Pohl has legal or equitable title to the information that comprises his client list, as well as
the collection of coapies of attorney-client fee agreements, and the other files misappropriated by
Kassab regardlefss of how clients listed in those files were obtained. Based on his prior arguments,
Kassab appears to believe that Pohl cannot prevail on his claims without showing that every client
5 To the extent that Kassab suggests that the phrase “equitable title” imports some form of equitable analysis to whether
Pohl owns the trade secrets, there is no legal support for this position. The reference to “equitable title,” especially in
connection with the reference to “legal title,” simply incorporates the idea of beneficial ownership into the statutory
definition. Equitable title is a “title that indicates a beneficial interest in property and that gives the holder the right to
acquire formal legal title.” See Title: Equitable Title, Black’s Law Dictionary (11th ed. 2019).
behind each client contract was procured without barratry. That is not the case, and Kassab cannot
demonstrate that the existence of barratry is legally material to this lawsuit.
To understand why establishing barratry is not material, it may be useful to contemplate
what the impact would be if one assumed that Kassab can show that Pohl had obktained some, or
even all, of his clients and potential clients through barratry. Even if a client hlas a valid claim for
barratry, there is no legal support for the idea that simply because barractry occurred, the former
lawyer loses (1) ownership of the collection of information constitutisng the lawyer’s client list; or
(2) ownership of the attorney’s copy of the client contract. Rather, the statutory scheme suggests
the precise opposite. A client contract is not rendered void even if it is established that barratry
occurred. It is merely voidable if the client brings an action to have the contract declared void.
See Tex. Gov’t Code § 82.0651(a). There is no dispute that none of Pohl’s client contracts have
been declared void. This would not change eaven if Kassab established that barratry occurred in
this lawsuit, because only the client can have a contract declared void. See id.
But the lack of relevance exteends a step further. Even in a hypothetical world where some
of Pohl’s clients had their client cfontracts declared void, that would not mean that Pohl’s client list
and copies of client contractsy no longer belong to him. It would simply mean that a client contract
that was declared voidC is not enforceable against the client. There is no support for the idea once
a contract has been daeclared void, an attorney is divested of ownership of the information regarding
with whom he hfas contracted. Nor would an attorney be divested of ownership of all copies of the
void clienUt contract in his possession. Nor would the fact that a contract was declared void impact
an attorney’s ownership of a compilation of information about clients that included the information
about one client whose contract was declared void. There simply is no support for the idea that a
finding of barratry, even if it voids a client contract, results in relief, finding, or a circumstance
where an attorney must then purge his or her records of all references to that client and their
information.
Kassab’s arguments around barratry rely on obfuscating the issues that are actually before
the Court. Kassab has conflated the voidability of a contract—which can preveknt that contract
from being enforced—with ownership of trade secrets that include the compilaltion of information
contained in those contracts. Regardless of whether barratry occurred, Pohcl owned the information
about with whom he has done business, whether that information toosk the form of client contracts
or client lists. While Kassab may dispute if Pohl owned those trade secrets, whether barratry
occurred will not impact that determination.
2. Establishing barratry is not a standalone defense to Pohl’s claims.
While Kassab’s various other pled defenses are discussed below, it is important to note that
despite Kassab’s framing of this case, establishirng barratry is not an affirmative defense to Pohl’s
claims. There are no “outlaws” under Texas law. Kassab’s unsubstantiated belief that Pohl
engaged in barratry does not give Kaessab the right to ignore Pohl’s legal rights (and to treat Pohl
as outside the law’s protections) bfy misappropriating and converting Pohl’s property.
“An affirmative defeynse is defined as ‘a denial of the plaintiff’s right to judgment even if
the plaintiff establishes every allegation in its pleadings.’ An affirmative defense allows the
defendant to introdauce evidence to establish an independent reason why the plaintiff should not
prevail; it does fnot rebut the factual proposition of the plaintiff’s pleading.” Hassell Constr. Co.,
Inc. v. Stature Commercial Co., Inc., 162 S.W.3d 664, 667 (Tex. App.—Houston [14th Dist.] 2005,
no pet.) (citations omitted).
Despite prior insinuations from Kassab, establishing barratry is not a standalone defense to
Pohl’s claims, nor has Kassab pled it as a standalone defense. See generally Kassab’s Eighth
Amended Answer, Affirmative Defenses and Counterclaim (“Kassab’s Eighth Answer”). Even if
Kassab could prove that Pohl committed barratry, that is not an independent basis for denying Pohl
recovery on his claims in this lawsuit. Kassab’s desire to focus on allegations of barratry is part
of his strategy to distract and prejudice the jury against Pohl through Kassab’s repetitive,
inaccurate, and inflammatory claims that Pohl is a criminal or has violated felony crkiminal statutes.
Kassab’s attempts to use his allegations of barratry as a defense are novell and without legal
support. Kassab cannot cite to any Texas cases involving a claim for thceft of trade secrets or a
claim for conversion where barratry was found to be an affirmatisve defense to those claims.
Instead, what Kassab has pointed to are cases where courts have stated that they will not enforce
a contract that is void for illegality. The defenses of illegality and unlawful acts are discussed
more thoroughly below. See infra Part II(B)(1). But the Court should not be confused by Kassab’s
attempt to cite inapplicable caselaw in this context. Pohl is not seeking to enforce any client
contract, nor is he seeking to recover the procaeeds generated under any of those client contracts.
Because it does not constitute a defense and has not been explicitly pled as a defense, the Court
should find that establishing barratry eis not a standalone defense to Pohl’s claims.
3. Kassab should not be fpermitted to prejudice the jury through unconnected allegations
of prior bad acts that Kassab has no standing to assert.
The rules against barratry can only be enforced by specific parties against a lawyer through
specific and limited avenues. The Texas State Bar can enforce disciplinary rules involving barratry
through disciplincary proceedings brought against a lawyer. The State of Texas can enforce
criminal statutes prohibiting barratry by bringing criminal charges against a lawyer. And finally,
Texas allows clients who were solicited through barratry to sue under a civil statute. Kassab has
no standing under any of these three avenues to allege and prove that Pohl committed barratry.
If the Court permits Kassab to introduce evidence to try and establish that barratry
occurred, it would be allowing Kassab to enforce the disciplinary rules, criminal statutes, or the
civil liability statute even though Kassab would have no ability to do so in any other proceeding.
This would be improper and distract from the issues that the jury must decide in this case.
To the extent that evidence concerning, relating to, or mentioning barratry is permitted, it
should be limited, and be accompanied by a limiting instruction, to evidence thatk can be directly
linked to the plaintiffs who seek civil liability against Pohl (which are all reprelsented by Kassab).
These are the only clients for which allegations of barratry have any placusible bearing. But this
should be very carefully limited to prevent the use of the evidence as simproper character evidence
or to suggest that Pohl procured all of his clients through barratry.
B. Ten of Kassab’s so-called affirmative defenses fail as a matter of law.
In his eighth amended answer, Kassab asserted numerous affirmative defenses. As a matter
of law, ten of those defenses do not exist or do not apply in this case. To streamline the issues
presented at trial, the Court should find that the rten defenses discussed below are not legally viable
and will not be considered at trial. 
1. Kassab’s Unlawful Acts Deoctrine defense—whether called illegality, criminal acts, or
“in pari delicto”—is preccluded under clear Texas Supreme Court Precedent.
Kassab’s current pleading asserts a defense of “Illegality/Criminal Acts,” but his prior
answer described it as thep “Illegality/Criminal Acts/Unlawful Acts Rule” defense. Compare
Kassab’s Eighth Answer, at 4, with Kassab’s Seventh Answer, at 4. Separately, Kassab also asserts
a defense of “in pcairi delicto.” See Kassab’s Eighth Answer, at 4. Regardless of the title Kassab
uses to descroibe it, the unlawful acts doctrine has been supplanted under Texas law. As for
illegality and in pari delicto, they apply when a plaintiff seeks to enforce an illegal contract.
Because none of Pohl’s claims involve a request to enforce any contract—let alone one that is
allegedly illegal—the defenses of in pari delicto and illegality have no application to this case.
First, to the extent that the unlawful acts doctrine could have any relevance, it is preempted
by Texas’s proportionate responsibility statute. In Dugger v. Arredondo, the Texas Supreme Court
considered “whether the common law unlawful acts doctrine is available as an affirmative defense
under the proportionate responsibility framework.” 408 S.W.3d 825, 831–32 (Tekx. 2013). The
Court found that “it is not,” and that “[t]he plain language of section 33.003 cllearly indicates that
the common law unlawful acts doctrine is no longer a viable defense.” Idc. at 832.
Pohl laid out the preemption problem in his response to Kasssab’s affirmative motion for
traditional summary judgment.6 Kassab likely changed his description of this defense due to that
prior briefing and Pohl pointing out that Kassab acknowledged this defense was preempted in prior
briefing.7 However, Kassab describing the defense differently does not make a difference. While
this defense would fail on the merits, that question is not reached, as the defense is preempted. A
defense does not become un-preempted becauase a party calls it a different name.
Second, there are other related defenses that go by the name of “illegality,” or sometimes
“in pari delicto.” Kassab’s assertionse of these defenses also fail as a matter of law. Those defenses
apply to a party seeking to enforfce an illegal contract. Because it is undisputed that Pohl is not
attempting to enforce any coyntract, let alone an illegal contract, these defenses do not apply.
Illegality or theC in pari delicto defense apply when a party comes into court seeking to have
the court enforce ana illegal agreement. See Jefferson Cnty. v. Jefferson Cnty. Constables Ass’n,
546 S.W.3d 661f, 666 (Tex. 2018) (discussing illegality defense); Geis v. Colina Del Rio, LP, 362
S.W.3d 1U00, 106 (Tex. App.—San Antonio 2011, pet. denied) (“The defense of in pari delicto
requires Texas Courts, as a general rule, to decline to enforce illegal contracts when the contracting
6 Pohl incorporates that briefing and its evidence as it pertains to the issue of the Unlawful Acts Doctrine. See
Plaintiffs’ Response In Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants
and the Nicholson Defendants, at 19–27, filed Sept. 12, 2022.
7 See Plaintiffs’ Response to the Kassab Defendants’ Motion to Abate Trial Setting, at 6–7, filed Sept. 15, 2022.
parties are equally blameworthy.”). These defenses are related to the unlawful acts doctrine. See
Dugger, 408 S.W.3d at 829 (unlawful acts “doctrine originated with the principle of in pari delicto
or ‘unclean hands’ in the contract context, but was extended to tort causes of action”).
Pohl has not asserted any contract claim against Kassab, nor do any ofk his tort claims
involve enforcing the terms of any allegedly illegal contract. See generallly Pohl’s Amended
Petition. Even if the enforceability of Pohl’s client fee agreements were rcelevant, that condition is
satisfied here. The Texas legislature provided that agreements prsocured through barratry are
voidable, not void, and that a client may obtain a finding that voids the agreement.8 It is undisputed
that not a single one of Pohl’s client fee agreements have been declared void.
Because the unlawful acts doctrine has been preempted it cannot apply, regardless of what
name Kassab uses to describe it. And because there is no contract the Court could decline to
enforce, the defenses of illegality and in pari daelicto do not apply as a matter of law. Alternatively,
even if such defenses could apply, they would not be triggered absent the statutory finding that a
contract was void, which has not ocecurred and cannot occur in this lawsuit. For these and the
reasons discussed above, the Coufrt should find that these defenses do not apply as matter of law.
2. The defense of “jyustification” is not available as a matter of law.
Kassab also asserts the defense of “justification.” Kassab’s Eighth Answer, at 3. Kassab
presumably contendas that he was “justified” in stealing Pohl’s client lists and other trade secrets
because he beliefves Pohl committed barratry. The problem with this theory is that “justification”
is not a defense to Pohl’s claims. Even if it were, Kassab could not arguably be “justified” in
stealing Pohl’s trade secrets because Kassab does not allege that Pohl’s barratry involved Kassab.
8 See Tex. Gov’t Code § 82.0651(a) (stating that “client may bring an action to void a contract for legal services that
was procured as a result of conduct” often described as barratry).
10
Justification is an affirmative defense to a claim of tortious interference with contract. See
Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996) (describing defense); Knox v.
Taylor, 992 S.W. 2d 40, 59 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (justification is an
affirmative defense to tortious interference). “Justification” is not a recognized dekfense to theft of
trade secrets, conversion, or conspiracy. The defense is an assertion that the deflendant was legally
justified in interfering with the plaintiff’s contract through either a contracctual or legal right. See
Tex. Beef Cattle, 921 S.W.2d at 210. It is not a generally available dsefense to all torts.9 Even for
claims where the justification is available as a defense, if a party’s acts “are tortious in themselves,
then the issue of privilege or justification never arises.” See Prudential Ins. Co. of Am. v. Fin.
Review Servs., Inc., 29 S.W.3d 74, 81 (Tex. 2000).
Even if Texas recognized “justification” as a defense to claims of theft of trade secrets,10
conversion, or conspiracy, Kassab has not anad could not allege a basis on which to assert such a
defense. First, Pohl’s allegations are that Kassab’s actions were tortious in themselves, and thus,
justification does not apply. See Prudeential, 29 S.W.3d at 81. Second, Kassab cannot legitimately
contend that Pohl took any actionf against them or that involved them before they committed the
torts that form the basis of Pyohl’s claim. The notion that Kassab was “justified” in committing
torts to obtain confidenCtial trade secrets so he could pursue claims of barratry, on behalf of third
9 There is one case, previously cited by Kassab, that states justification is an affirmative defense in the antitrust context.
See Money Mastefrs, Inc. v. TRW, Inc., No. 05-98-02017-CV, 2003 WL 152770, at *5 (Tex. App.—Dallas Jan. 23,
2003, pet. denied). However, this case further supports the conclusion that justification is not a generally applicable
defense that can be asserted against any tort claim. In finding that “[j]ustification is an affirmative defense to both an
antitrust claim and a claim for tortious interference,” the court cited to a specific statute that provides that a party is
justified in engaging in activities that may otherwise violate antitrust law if those activities are required under certain
statutory or regulatory authority. See id. (citing Tex. Bus. & Com. Code § 15.05(g)). Pohl does not dispute that the
Texas legislature could create a statutory justification defense to additional claims. However, the legislature has not
extended the applicability of the defense of justification to any of the claims asserted by Pohl in this case.
10 Kassab has also argued that “Texas courts have considered the defense in relation to theft of trade secrets” in his
prior briefing and cited to one case. See Lamont v. Vaquillas Energy Lopeno Ltd., LLP, 421 S.W.3d 198 (Tex. App.—
San Antonio 2013, pet. denied). While that case involved a claim for theft of trade secrets, the defense of justification
was not applied to that claim, rather, the court applied it to a tortious interference claim and stated that “[l]egal
justification or privilege ‘is an affirmative defense to tortious interference with contract.’” See id. at 218.
11
parties, fails as a matter of law and as a matter of logic. To the extent that Kassab argues that he
was justified in engaging in this tortious conduct on behalf of clients that did not exist at the time
he committed the relevant tortious activity, there is no support to his interpretation of this defense.
To streamline the issues presented at trial, the Court should find that this defense fkails legally.
3. The so-called defense of “Immunity under Rule 17.09 of thel Texas Rules of
Disciplinary Procedure” does not apply as a matter of law.
Kassab asserts that “Immunity under Rule 17.09 of the Texrais Rules of Disciplinary
Procedure” protects him from liability for his actions in this lawsuiDt. See Kassab’s Eighth Answer,
at 4. However, Kassab misunderstands Rule 17.09. It providess immunity to certain officials, such
as members of the Texas Commission for Lawyer Discipline. It also limits a plaintiff’s ability to
file a lawsuit predicated on a person’s involvement in the grievance process when that person is
the complainant or a witness. However, because Pohl’s claims, and thus the lawsuit, are not
predicated on Kassab’s involvement in the Mgrievance process, Rule 17.09 does not apply.
Rule 17.09 provides that: “Noo lawsuit may be instituted against any Complainant or
witness predicated upon the filing ocf a Grievance or participation in the attorney disciplinary and
disability system.” TEX. RULES DISCIPLINARY P. R. 17.09. It does not provide immunity simply
because there is some connection between a case and the grievance process. The immunity that is
provided under the rule is limited to certain officials connected to the State Bar, and such officials
“are immune fromc suit for any conduct in the course of their official duties.” Id. For a lawsuit to
be “predicate o d upon” something, that something must be what the lawsuit is based or founded on.11
Kassab’s involvement in the grievance process does not give rise to Pohl’s claims. Pohl’s
claims against Kassab are based on his misappropriation and conversion of Pohl’s property—
11 Predicate, Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/predicate (accessed
Nov. 28, 2022) (listing “FOUND, BASE” as a definition of “predicated”).
12
including his improper purchase and/or acquisition of Pohl’s client list, which included actual
attorney-client fee agreements. See generally Amended Petition. These claims accrued upon
Kassab’s acquisition of the client information or use of the client information to solicit those
clients. Thus, Pohl’s claims accrued prior to any grievance being filed by Kassakb. Because the
claims asserted pre-date the filing or participation in any grievance by Kassab, lthis lawsuit cannot
have been “predicated upon the filing of a Grievance,” and Rule 17.09 doces not apply.
Based on Kassab’s prior briefing on this subject, he appears tos believe (or wish through his
selective quotations) that Rule 17.09 provides absolute immunity to him for anything he can
connect to the grievance process—even though he is not a State Bar official. But that is not what
the rule provides. A simple hypothetical shows how this lawsuit is not predicated on Kassab’s
participation in the grievance process. If Kassab had never filed or participated in the grievance
process, would Pohl’s claims in this lawsuit satill exist? Given that Pohl’s claims accrued prior to
Kassab’s participation in the grievance process (starting in 2028), the answer is clearly yes. The
fact that Kassab has taken the positioen on multiple occasions that Pohl’s claims accrued prior to
2018 and are barred by limitationfs shows that the fact that the basis or predicate of Pohl’s claims
predates the grievances is noyt something that can be disputed.12
Pohl anticipateCs that Kassab may argue that a small portion of Pohl’s damages are
connected to the griaevance process, and that this triggers application of Rule 17.09. However, the
fact that there isf some connection that can be drawn between a grievance and a lawsuit does not
implicateU Rule 17.09. There must be a showing that the lawsuit is predicated upon the grievance,
not merely connected to it, especially when the claims accrued prior to the filing of any grievance.
Participating in the grievance process is not a get-out-of-jail-free card for prior wrongful conduct.
12 See, e.g., Kassab’s Traditional Motion for Summary Judgment, at 2, 44–57, filed Aug. 29, 2022 (arguing that Kassab
had conclusively established that Pohl’s claims against Kassab accrued years prior to the filing of this lawsuit).
13
A party’s participation in the grievance process is protected. But a person who commits a tort and
then subsequently files a grievance is not somehow absolved for what they did prior to their
involvement in the grievance process.
Because this lawsuit is not predicated on Kassab’s participation in the grikevance process,
the Court should find that Rule 17.09 does not apply as a matter of law. l
4. Unclean hands is not a defense to legal claims. c
Kassab asserts “unclean hands” as an affirmative defense. Ssee Kassab’s Eighth Answer,
at 3. Here again, Kassab presumably hopes to inject his claims of barratry to muddy the issues in
the trial of this case. But unclean hands is not available as a defense to the claims asserted here,
nor is it applicable to the type of relief currently sought by Pohl.
Texas law provides that unclean hands is an affirmative defense that may bar a party with
unclean hands from obtaining equitable relief. r See Wood v. Wiggins, 650 S.W.3d 533, 556 (Tex.
App.—Houston [1st Dist.] 2021, pet. denied). However, there is both a nexus requirement, and a
requirement that the party invoking tehe defense “must show an injury to himself arising from the
conduct.” Id. “‘The clean hands mfaxim should not be applied when the defendants have not been
seriously harmed and the wryong complained of can be corrected without applying the doctrine.’”
Id. (citation omitted).
Kassab’s usae and dissemination of Pohl’s trade secrets is a bell that cannot be unrung.
Thus, while Pohfl previously pled injunctive relief in his petition, to streamline issues for trial, Pohl
will no longer seek this relief. Because Pohl does not seek any equitable relief, and the defense is
not available to Pohl’s tort claims, the Court should preclude consideration of the “unclean hands”
defense at trial as a matter of law.
To the extent that Kassab can show that the defense still has legal application for some
other reason, the Court can still narrow the issues for trial by finding that Kassab cannot use
14
allegations of barratry, improper solicitation, or other supposed conduct relating to Pohl’s former
and prospective clients to prove up this defense. There is no plausible theory by which that conduct
caused Kassab an injury, rather than an alleged injury to Pohl’s former clients. See Wiggins, 650
S.W.3d at 556 (party asserting defense “must show an injury to himself arising fromk the conduct.”).
Because the defense of unclean hands does not apply to Pohl’s claims orl the relief he seeks,
the Court should find that as a matter of law, the defense has no applicaction or relevance to the
trial in this matter. In the alternative, the Court should find that, as as matter of law, any theory of
unclean hands based on Kassab’s allegations that Pohl committed barratry or other misconduct
relating to Pohl’s former and prospective clients is not relevant, as it did not harm Kassab.
5. The defenses of release, accord and satisfaction, estoppel, and “subject to a valid
contract” are not available as a matter of law.
Kassab’s current answer also purports to assert defenses of “release,” “accord and
satisfaction,” “estoppel,” and “subject to a Mvalid contract.” See Kassab’s Eighth Answer, at 3–4.
However, in his prior summary judgmoent briefing, Kassab acknowledged that “contract-related
affirmative defenses of release, accocrd and satisfaction, estoppel do not apply to Kassab.”13 Pohl
agrees, and thus, this Court should find that because Pohl has not pled a contract claim against
Kassab, the defenses of release, accord and satisfaction, and estoppel do not apply in this case as
a matter of law. See Plaintiff’s First Amended Petition ¶¶ 35–43 (not asserting any claims
sounding in contrcact against Kassab).
As for Kassab’ assertion of the defense of “subject to a valid contract,” this defense appears
to be a rewording of the express contract defense. That defense has no application here as a matter
of law. The express contract defense applies to prevent a plaintiff from recovering in quantum
13 See The Kassab Defendants’ Response to Plaintiffs’ Motion for Partial Traditional and No-Evidence Summary
Judgment, at 16, filed Sept. 12, 2022.
15
meruit when a plaintiff seeks “to recover the reasonable value of services rendered or materials
supplied” but “there is an express contract that covers those services or materials.” See Pepi Corp.
v. Galliford, 254 S.W.3d 457, 462 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). Pohl has
not pled or argued claims that would support such a defense, nor has Kassab madek any allegations
that could plausibly support this defense. l
Because these affirmative defenses relate to claims made in conctract, and Pohl has not
alleged any contract claims against Kassab, the Court should find sthat the defenses of release,
accord and satisfaction, estoppel, and “subject to a valid contract” do not apply as a matter of law.
6. Affirmative defenses of assumption of the risk and contributory negligence are no
longer independent defenses apart from proporrtionate responsibility.
Kassab asserts “assumption of the risk” and “contribution”14 as affirmative defenses. See
Kassab’s Eighth Answer, at 3–4. Neither of these defenses are proper defenses to the claims in
this case. The Texas Supreme Court has dMeclared that “the common law affirmative defenses of
assumption of the risk and contributory onegligence no longer exist under Texas law,” rather, their
“underlying concepts remain relevacnt under Texas’s proportionate-responsibility statute.” Austin
v. Kroger Tex., L.P., 465 S.W.3d 193, 209–10 (Tex. 2015) (footnote and citation omitted). To
narrow the issues at trial, the Court should find that these defenses are not legally viable.
PRAYER
For the recaisons set forth herein, Pohl asks the Court to find that establishing whether
barratry occuorred is not legally relevant to this lawsuit and that Kassab’s affirmative defenses of
unlawful acts; illegality; criminal acts; in pari delicto; justification; immunity under Rule 17.09;
unclean hands; release; accord and satisfaction; estoppel; subject to a valid contract; assumption
of the risk; and contribution are barred as a matter of law.
14 It is unclear what defense Kassab’s reference to “Contribution” could refer to other than contributory negligence.
16
Dated: November 30, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 r
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 30th day of November, 2022.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
17
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 70589892
Status as of 12/1/2022 8:34 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Solace Southwick ssouthwick@reynoldssfrizzell.com 11/30/2022 8:20:45 PM SENT
Zandra EFoley zfoley@thompsogncoe.com 11/30/2022 8:20:45 PM SENT
Andrew Johnson ajohnson@thoumpsoncoe.com 11/30/2022 8:20:45 PM SENT
Benjamin Ritz britz@thompsoncoe.com 11/30/2022 8:20:45 PM SENT
Murray JFogler mfogleyr@foglerbrar.com 11/30/2022 8:20:45 PM SENT
Murray Fogler mfaogler@fbfog.com 11/30/2022 8:20:45 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 11/30/2022 8:20:45 PM SENT
Raul Herman Suazo 24003021osuazo@mdjwlaw.com 11/30/2022 8:20:45 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 11/30/2022 8:20:45 PM SENT
Misty Davis f mdavis@reynoldsfrizzell.com 11/30/2022 8:20:45 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 11/30/2022 8:20:45 PM SENT
Lance Kassab p eserve@kassab.law 11/30/2022 8:20:45 PM SENT
Jean C.Frizzell C jfrizzell@reynoldsfrizzell.com 11/30/2022 8:20:45 PM SENT
Harris Wells a l hwells@reynoldsfrizzell.com 11/30/2022 8:20:45 PM SENT
Scott M.Favre scott@favrepa.com 11/30/2022 8:20:45 PM SENT
Lawyer Wade o lawyerwade@hotmail.com 11/30/2022 8:20:45 PM SENT
Andrea MendeUz andrea@kassab.law 11/30/2022 8:20:45 PM SENT
Lance Kassab lance@kassab.law 11/30/2022 8:20:45 PM SENT
David Kassab david@kassab.law 11/30/2022 8:20:45 PM SENT
Nicholas Pierce nicholas@kassab.law 11/30/2022 8:20:45 PM SENT
D Kassab david@kassab.law 11/30/2022 8:20:45 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/30/2022 8:20:45 PM SENT
L Kassab lance@kassab.law 11/30/2022 8:20:45 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/30/2022 8:20:45 PM SENT"