Robert J. Piro, Earle S. Lilly, Piro & Lilly, L.L.P. v. Linda Sarofim Lowe

Opinion issued April 11, 2002

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-00-00398-CV

____________

ROBERT J. PIRO, EARLE S. LILLY, AND PIRO & LILLY, L.L.P.,

Appellants

V.

FAYEZ SAROFIM, INDEPENDENT EXECUTOR OF THE ESTATE OF

LINDA SAROFIM LOWE, DECEASED, Appellee

and

FAYEZ SAROFIM, INDEPENDENT EXECUTOR OF THE ESTATE OF

LINDA SAROFIM LOWE, DECEASED, Appellant

V.

ROBERT J. PIRO, EARLE S. LILLY, AND PIRO & LILLY, L.L.P.,

Appellees

On Appeal from the 295th District Court

Harris County, Texas

Trial Court Cause No. 97-62103

O P I N I O N

Linda Sarofim Lowe hired Robert J. Piro, Earle S. Lilly, and the firm of Piro

& Lilly, L.L.P. ("the lawyers") to represent her in her divorce from Fayez Sarofim.

After the conclusion of the divorce proceeding, Lowe sued the lawyers for breach of

fiduciary duty and other causes of action, claiming they charged her excessive fees

for the divorce. Lowe also asked the trial court to forfeit the attorneys' fees.

The jury found that the lawyers breached their fiduciary duty to Lowe and

awarded her $3,000,000 in actual damages. In the alternative, the trial court forfeited

the attorneys' fees amounting to $3,000,000. The trial court in its judgment stated,

"it is not the intention of the Court that Plaintiff obtain both actual damages and the

equitable remedy of fee forfeiture for Defendants' breaches of fiduciary duty." The

total award to Lowe in the final judgment was $3,000,000 alternatively based on

breach of fiduciary duty or fee forfeiture.

On appeal, the lawyers bring eight issues. Fayez Sarofim, independent

executor of the estate of Linda Sarofim Lowe, deceased, brings a single point of

error. (1) We affirm.

The Lawyers' Appeal

In issue one, the lawyers contend the trial court erred in refusing to disregard

the jury's answer to question 1: "Did Earle Lilly and/or Robert Piro comply with his

fiduciary duty to Linda Lowe?" (2) Question 1 was taken from Pattern Jury Charge

104.2. Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern

Jury Charges: Business • Consumer • Employment PJC 104.2 (2000). On

appeal, the lawyers give three reasons the answer should have been disregarded: (1)

Lowe had no tort claim, but only had breach-of-contract and fee-forfeiture claims; (2)

question 1 was not supported by the pleadings; and (3) the existence of fiduciary

duties and breaches thereof are legal questions that should not be submitted to a jury.

We will only address the last reason because it was the only complaint made to the

trial court with sufficient specificity to make that court aware of the complaint. See

Tex. R. App. P. 33.1(a)(1)(A).

In their motion to disregard the jury's verdict, the lawyers claim question 1 was

immaterial because it calls for a finding beyond the province of the jury, i.e. , it is a

question of law for the court to decide. See Spencer v. Eagle Star Ins. Co. of Am. ,

876 S.W.2d 154, 157 (Tex. 1994) (defining immateriality). The lawyers' specific

argument follows:

Texas law is perfectly clear that the existence of and breaches of

fiduciary duties are legal questions and not fact or jury questions as to

both tortious and Arce varieties. However, any contested facts in an

equitable action must be resolved, and a party is entitled to have that

resolution made by a jury. If an issue is submitted to a jury on the

existence of and breach of fiduciary duty, the answer must be

disregarded by the court because they are questions of law to be

determined by the court.

(Citations omitted). As authority, they cite to four cases-- Burrow v. Arce , Taylor v.

GWR Operating Co. , Lacy v. Ticor Title Insurance Co. , and Fuqua v. Taylor --that

stand for the proposition that undisputed fact issues should not be submitted to the

factfinder. Burrow , 997 S.W.2d 229, 246 (Tex. 1999); Taylor , 820 S.W.2d 908, 911

(Tex. App.--Houston [1st Dist.] 1991, writ denied); Lacy , 794 S.W.2d 781, 787 (Tex.

App.--Dallas 1990, writ ref'd n.r.e.), writ denied per curiam on other grounds , 803

S.W.2d 265 (Tex. 1991); Fuqua , 683 S.W.2d 735, 737-38 (Tex. App.--Dallas 1984,

writ ref'd n.r.e.).

Question 1, of course, did not ask the jury whether the lawyers owed a duty to

Lowe (which they unquestionably did), but instead asked the jury to resolve fact

questions regarding possible breaches of that duty. In their argument on appeal,

which consists of the above-quoted paragraph, the lawyers do not argue with any

specificity that the facts in this case related to breaches of their fiduciary duty were

uncontested. We decline to conduct a de novo review of the record to see if there

were, in fact, no contested fact issues related to question 1. See Tex. R. App. P.

38.1(h) (appellant's brief must contain clear and concise argument for contentions

made, with appropriate citations to authority and to record).

We overrule issue one.

In issue two, the lawyers contend the trial court erred by (1) not excluding

Lowe's expert witnesses on legal ethics (George Edwin Brooks, W. Amon Burton,

Jr., and James M. McCormack), (2) refusing the lawyers' request for a "live

gatekeeper hearing," as opposed to evaluating the proposed experts based on

deposition and affidavit testimony, and (3) allowing the experts to use the Texas

Disciplinary Rules of Professional Conduct in their testimony. The trial objections

on which the lawyers base issue two were their request that the proposed experts be

examined at the hearing and their written motion to exclude the experts' testimony

based on Texas Rule of Evidence 702, Daubert v. Merrell Dow Pharmaceuticals,

Inc. , and E.I. DuPont de Nemours & Co. v. Robinson . Daubert , 509 U.S. 579 , 113

S. Ct. 2786 (1993); Robinson , 923 S.W.2d 549 (Tex. 1995). (3) Regarding the

testimony of Burton and McCormack, the lawyers contend it violates the Robinson

factors because "[t]heir conclusions have not been tested, been subjected to peer

review, or been generally accepted by the legal community, and all of their

conclusions were carefully crafted for this lawsuit and clearly based on their

subjective interpretation of the Disciplinary Rules or the facts about which they had

no knowledge."

In deciding if an expert is qualified, trial courts "must ensure that those who

purport to be experts truly have expertise concerning the actual subject about which

they are offering an opinion." Gammill v. Jack Williams Chevrolet, Inc. , 972 S.W.2d

713, 719 (Tex. 1998). The supreme court has explained that Daubert and Rule 702

demand that the district court evaluate the methods, analysis, and principles relied

upon in reaching the opinion. The court should ensure that the opinion comports with

applicable professional standards outside the courtroom and that it will have a reliable

basis in the knowledge and experience of the discipline. Gammill , 972 S.W.2d at

725-26 . In Gammill , the court recognized that the Robinson factors may not apply

to certain testimony. Id. at 726. However, there still must be some basis for the

opinion offered to show its reliability, and, ultimately, the trial court must determine

how to assess reliability. Id. at 726.

There is a fundamental procedural difficulty with the lawyers' appellate

argument. The record references they marshal to demonstrate why the experts do not

meet the Robinson factors are all from testimony that occurred after the hearing on

their motion. Nowhere in the lawyers' appellate brief do they demonstrate they

specifically objected to the experts' testimony as offered to the jury. See Harvey

Brown, Procedural Issues Under Daubert, 36 Hous. L. Rev. 1133 , 1146-47 (1999)

(suggesting overruling of Robinson motion does not preserve error). This means the

lawyers have asked us to review the trial court's initial Robinson decision based on

what the experts said later at trial. The lawyers also do not indicate that they reurged

their Robinson objection before the case was submitted to the jury. Thus, we cannot

hold that the trial court abused its discretion at the initial Robinson hearing.

We recognize the relationship between (1) requiring the lawyers to specifically

object to the expert witnesses' trial testimony and (2) the trial court's decision to base

the Robinson ruling on the experts' deposition and affidavit testimony, rather than

calling the experts to testify at the hearing. The lawyers did not present

authority--either at trial or on appeal--that Robinson requires such a live hearing,

and we are not aware of any. The equivalent federal rule does not expressly require

an evidentiary hearing, and the trial court's decision on how to hold such a hearing

falls within its discretion:

The trial court must have the same kind of latitude in deciding how to

test an expert's reliability, and to decide whether or when special

briefing or other proceedings are needed to investigate reliability, as it

enjoys when it decides whether or not that expert's relevant testimony

is reliable. Our opinion in Joiner makes clear that a court of appeals is

to apply an abuse-of-discretion standard when it "review[s] a trial

court's decision to admit or exclude expert testimony." That standard

applies as much to the trial court's decisions about how to determine

reliability as to its ultimate conclusion. Otherwise, the trial judge would

lack the discretionary authority needed both to avoid unnecessary

"reliability" proceedings in ordinary cases where the reliability of an

expert's methods is properly taken for granted, and to require

appropriate proceedings in the less usual or more complex cases where

cause for questioning the expert's reliability arises. Indeed, the Rules

seek to avoid "unjustifiable expense and delay" as part of their search

for "truth" and the "jus[t] determin[ation]" of proceedings.

Kuhmo Tire Co. v. Carmichael , 526 U.S. 137, 152-53 , 119 S. Ct. 1167, 1176 (1999)

(citations omitted); see Brown, Hous. L. Rev. at 1149-53.

Because the Texas Supreme Court permits Robinson objections when the

evidence is offered at trial, it would likely also adopt the federal abuse-of-discretion

review of a trial court's decision whether, when, and how to hold a Robinson hearing.

In exercising this discretion, however, the trial court should keep in mind the supreme

court's admonition that "[c]ourts should allow a party . . . to present the best available

evidence." Merrell Dow Pharm., Inc. v. Havner , 953 S.W.2d 706, 720 (Tex. 1997).

We note that the trial court did place limits on the experts' use of the Texas

Disciplinary Rules of Professional Conduct in their testimony. The lawyers neither

point to anywhere in the record where they objected that the witnesses were testifying

outside of the limits imposed by the trial court, nor do they explain how the specific

testimony violated those limits. See Brown, Hous. L. Rev. at 1145 (discussing effect

of trial court limiting expert's testimony).

Finally, the lawyers argue that the supreme court in Havner relieved opponents

of expert testimony from the duty to preserve error. 953 S.W.2d at 712 . We disagree.

The supreme court's opinion in Maritime Overseas Corp. v. Ellis reiterates the

necessity of objecting to the evidence before trial or when the evidence is offered.

971 S.W.2d 402, 409 (Tex. 1998); see also Tex. R. App. P. 33.1(a); Tex. R. Evid.

103(a)(1).

We overrule issue two.

In issue three, the lawyers contend the trial court erred in refusing their

instruction limiting the breach-of-fiduciary-duty question to the time period on or

before November 14, 1996, when Lowe paid the lawyers' legal fees in the underlying

divorce proceeding. The lawyers cite general authority concerning charge practice,

but no authority related to the specific fact scenario in this case, i.e. , the relevant time

periods in fee disputes.

Lowe points to evidence in the record which indicates the attorney-client

relationship continued past November 14, 1996. The lawyers respond that Lowe's

pleadings did not allege a breach of fiduciary duty past November 14, 1996, but do

not show that they either specially excepted to Lowe's pleadings in this regard or

objected to evidence offered at trial related to events past that time. Because there

was a fact issue regarding the length of the attorney-client relationship, we cannot say

the trial court abused its discretion in refusing the lawyer's instruction. See Texas

Dep't of Human Servs. v. E.B. , 802 S.W.2d 647, 649 (Tex. 1990) (abuse-of-discretion

standard governs claims of error in jury charge).

We overrule issue three.

In issue four, the lawyers contend the trial court erred in excluding evidence

that Lowe untruthfully testified that she had earned a master's degree. The lawyers

offered the live testimony of Pamela Cay Lollar, registrar of the Mississippi

University for Women, to show that Lowe had never earned a degree from that

institution. The lawyers also offered Lowe's subsequent testimony on cross-examination that she had not earned the degree.

The lawyers cite to the Austin Court of Appeals' opinion in Poole v. State , thus

inferentially acknowledging this is an impeachment on a collateral matter. Poole , 974

S.W.2d 892, 905-06 (Tex. App.--Austin 1998, pet. ref'd). Generally a witness may

not be impeached regarding a collateral matter, which is a matter not relevant to

proving a material issue in the case. Id. at 905 ; see also Tex. R. Evid. 608(b)

("Specific instances of the conduct of a witness, for the purpose of attacking or

supporting the witness's credibility, other than conviction of crime as provided in

Rule 609, may not be inquired into on cross-examination of the witness nor proved

by extrinsic evidence."). Whether Lowe had a master's degree was clearly a

collateral matter in this case. The case law, however, recognizes an exception to the

impeachment-on-a-collateral-matter rule when a witness voluntarily gives misleading

testimony, as Lowe did. Id. at 905 .

We agree with the Dallas Court of Appeals that the trial court should be guided

by Texas Rules of Evidence 401, 402, and 403 in deciding the ultimate admissibility

of the collateral matter. See Keene Corp. v. Gardner , 837 S.W.2d 224, 230 (Tex.

App.--Dallas 1992, writ denied); see also 1 Steven Goode et al., Texas Practice:

Guide to the Texas Rules of Evidence: Civil and Criminal § 607.3 (2d ed. 1993

& Supp. 2001). Although Lowe's testimony was untruthful, the trial court could have

applied Rules 401, 402, and 403 either to allow the impeachment by collateral

evidence or not allow the impeachment. This is a matter entrusted to the trial court's

discretion, and as such, we will not disturb it.

We overrule issue four.

In issue five, the lawyers contend the trial court erred in making a fee-forfeiture

award based on unauthorized findings of fact. Attorney Piro, however, made the

following request to the trial court:

Defendant Robert J. Piro understands that the Court is not

required to make findings of fact in a jury case. Defendant Robert J.

Piro does not believe that the Court could base its Arce judgment on

facts other than those found by the jury and/or undisputed facts and that

if the Court did so, it would be error. However, in the event the Court

did base its Arce judgment on facts other than undisputed facts and/or

those facts found by the jury, and without waiving Defendant's

contention that contested fact issues, if any, were to be resolved solely

by the jury, Defendant Robert J. Piro requests the Court to show what

those factual findings were.

With regard to Conclusions of Law, Defendant Robert J. Piro

suggests to the Court that under the Arce decision by the Supreme Court,

this Court was required to find as a matter of law that a fiduciary duty

existed which was breached by Defendant(s) and that such breach was

clear and serious. Defendant Robert J. Piro requests that the Court make

Conclusions of Law as to each and every act the Court believed resulted

in a clear and serious breach of fiduciary as well as any other

conclusions of law used by the Court so as to provide Defendant Robert

J. Piro with a fair and reasonable opportunity to have this Court's Arce

judgment properly reviewed.

The trial court made findings of fact and conclusions of law after noting that Piro's

request was "confusing and contradictory." Those findings and conclusions are

attached to this opinion as an appendix.

The lawyers do not point to anywhere in the record where they objected to the

trial court's findings and conclusions. See Tex. R. App. P. 33.1(a)(1) (preservation

of error). Accordingly, we need not decide whether the specific findings and

conclusions improperly exceeded Piro's request, although we note the lawyers do not

provide any specific analysis in their appellate brief.

We overrule issue five.

In issue six, the lawyers contend there is no evidence to support the jury's

finding in question 1 that the lawyers did not comply with their fiduciary duty to

Lowe, or, in the alternative, that finding is against the great weight and

preponderance of the evidence. In deciding a no-evidence claim, we consider the

evidence and inferences tending to support a jury's finding. Havner v. E-Z Mart

Stores, Inc. , 825 S.W.2d 456, 458 (Tex. 1992). We disregard all contrary evidence

and inferences. Transport Ins. Co. v. Faircloth , 898 S.W.2d 269, 275-76 (Tex. 1995);

Havner , 825 S.W.2d at 458 . Any evidence of probative force supporting a finding

requires us to uphold the jury's verdict. S. States Transp., Inc. v. State , 774 S.W.2d

639, 640 (Tex. 1989). When reviewing a jury verdict to determine the factual

sufficiency of the evidence, we must consider and weigh all the evidence, and should

set aside the judgment only if it is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust. Cain v. Bain , 709 S.W.2d 175, 176 (Tex.

1986); see also Pool v. Ford Motor Co. , 715 S.W.2d 629, 635-36 (Tex. 1986).

The record contains evidence from which the jury could, and did find that the

lawyers took advantage of Lowe and breached their fiduciary duty to her, ranging

from the testimony of Lowe's expert witnesses (whose testimony is not challenged

in this issue), to the lawyers' multiple billing and receipt of multiple payments by

Lowe, to Lilly's inappropriate personal relationship with Lowe. We hold there is

enough evidence to support the legal sufficiency of the evidence, and looking at all

the evidence, the jury's verdict is not so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust.

We overrule issue six.

In issue seven, the lawyers contend there is no evidence to support the trial

court award of fee forfeiture, or in the alternative, that award is against the great

weight and preponderance of the evidence. The supreme court set forth the test and

procedures for fee forfeiture in Burrow v. Arce :

[W]hen forfeiture of an attorney's fee is claimed, a trial court must

determine from the parties whether factual disputes exist that must be

decided by a jury before the court can determine whether a clear and

serious violation of duty has occurred, whether forfeiture is appropriate,

and if so, whether all or only part of the attorney's fee should be

forfeited. Such factual disputes may include, without limitation,

whether or when the misconduct complained of occurred, the attorney's

mental state at the time, and the existence or extent of any harm to the

client. If the relevant facts are undisputed, these issues may, of course,

be determined by the court as a matter of law. Once any necessary

factual disputes have been resolved, the court must determine, based on

the factors we have set out, whether the attorney's conduct was a clear

and serious breach of duty to his client and whether any of the attorney's

compensation should be forfeited, and if so, what amount. Most

importantly, in making these determinations the court must consider

whether forfeiture is necessary to satisfy the public's interest in

protecting the attorney-client relationship. The court's decision whether

to forfeit any or all of an attorney's fee is subject to review on appeal as

any other legal issue.

Arce , 997 S.W.2d at 246 . The factors the trial court is to consider in applying the

remedy of fee forfeiture to attorneys are: (1) the gravity and timing of the violation;

(2) its wilfulness; (3) its effect on the value of the lawyer's work for the client; (4)

any other threatened or actual harm to the client; (5) the adequacy of other remedies;

and (6) the public interest in maintaining the integrity of attorney-client relationships.

Id. at 243-44 .

The lawyers in their appellate brief do not marshal the evidence under this

issue in a manner that applies Arce factors to the tests for legal and factual sufficiency

discussed in issue six. Instead, they argue in a conclusory fashion that the evidence

is insufficient. The lawyers do argue that factor 5--the adequacy of other

remedies--should preclude the award of $3,000,000 as a fee forfeiture because the

trial court also awarded in the alternative $3,000,000 as damages for the lawyers'

breach of fiduciary duty to Lowe. This argument has no merit, however, because the

trial court awarded the $3,000,000 only once, based on the independent, alternative

grounds of damages and fee forfeiture.

Forfeiture of an attorney's fee is an equitable remedy. Arce , 997 S.W.2d at

245 . In this case, the trial court submitted the contested fact issues to the jury, and

we have upheld the sufficiency of the jury's verdict in issue six. To the extent the

lawyers' have requested us in issue seven to review the trial court's exercise of its

equity in awarding the fee forfeiture, we uphold the trial court's award.

We overrule issue seven.

In issue eight, the lawyers contend no evidence supported the jury's verdict for

$3,000,000 in actual damages for breach of fiduciary duty, or in the alternative, the

verdict is against the great weight and preponderance of the evidence. Because the

trial court's damage award was made in the alternative and we have overruled the

lawyer's challenge to the $3,000,000 fee-forfeiture award, we do not reach this point.

Lowe's Appeal

In her appeal, Lowe brings a single point of error in which she contends the

trial court erred in not rendering judgment on both the $3,000,000 damage award and

the $3,000,000 fee-forfeiture award. See Tex. R. Civ. P. 301 ("judgment of the court

. . . shall be so framed as to give the party all the relief to which he may be entitled

either in law or equity."). Although we agree the trial court could have rendered

judgment against the lawyers on both awards without creating a double recovery, the

trial court did not err when it declined to render such a judgment.

Two of the Arce factors the trial court had to consider were the adequacy of

other remedies and the public interest in maintaining the integrity of attorney-client

relationships. Lowe has not demonstrated that the trial court, in considering those

factors, abused its discretion in conditioning the equitable fee-forfeiture award as an

alternative award to the breach-of-fiduciary-duty-damages award.

We overrule Lowe's sole point of error.

Conclusion

We affirm the trial court's judgment.

Sherry J. Radack

Justice

Panel consists of Chief Justice Schneider and Justices Taft and Radack.

Do not publish. Tex. R. App. P. 47.4

Appendix

NO. 97-62101

Linda Sarofim Lowe § IN THE DISTRICT COURT OF

§

vs. § HARRIS COUNTY, TEXAS

§

Robert J. Piro, et al. § 295TH JUDICIAL DISTRICT

Finding of Facts and Conclusions of Law

On this date, the court considered the "Limited Request for Findings of Fact

and Conclusions of Law" filed by Robert J. Piro and finds the request itself to be

confusing and contradictory. While the case was on trial, the defendants initially took

the position that the judge should decide the breach of fiduciary duty question and

that the jury should answer specific factual questions. During the trial, I prepared a

three-page list of questions to ask the jury about the disputed facts that I thought had

a bearing on the breach of fiduciary duty question and handed it out to all the parties.

After reviewing that list, the defendants changed their mind and agreed to ask the jury

the global breach of fiduciary duty question. That question was submitted to the jury

without objection by the defendants, as to the jury's role in deciding the issue. Now

Mr. Piro is attempting to claim in his "Limited Request" that the jury should have

been asked specific fact questions and is making some sort of argument that it would

be error for me to make an independent review of the evidence or of the facts in

coming to my conclusion that fee forfeiture was appropriate in this case.

The jury found that both defendants breached their fiduciary duty to Linda

Lowe. The court agrees with that finding. The breaches of fiduciary duty by the

defendants in the case were numerous, serious and clear.

In the event that the jury finding is insufficient, the court makes the following

findings of fact and conclusions of law.

Findings of Fact:

The fee agreement and the conduct of the attorneys were not fair and

equitable to Linda Lowe.

Robert Piro and/or Earle Lilly did not fully and fairly disclose all

important information to Linda Lowe concerning the fee contract prior

to entering into the contract, including the fact that contingent fees in

divorce cases are rarely justified

The fee contract did not adequately describe the method by which the

contingent fee is to be determined.

The contingent fee on the River Oaks house, the ranch and the art was

not justified under the circumstances.

The fee contract was not fair and equitable to Linda Lowe because the

reduction in hourly rates of Piro was illusory, given the high retainer,

and because Lilly was the attorney who handled the majority of the

property issues.

Because Robert J. Piro would have to be a witness in the litigation, the

firm should not have undertaken Lowe's representation especially on a

contingent fee basis where Piro's credibility as a witness would be

undermined by his financial interest in the outcome. The non-disqualification agreement in the pre nuptial agreement only operates to

prevent the opposing side from disqualifying an attorney. It should

never be used to argue that there was no conflict in taking on the

representation. Incredibly in post trial briefing, Piro claims that he

withdrew as lead counsel because of the problem. This of course

compounds the fee problem-charging both an hourly rate and a

contingent fee when Lilly was doing all of the work.

The change from an hourly representation to the contingent fee

representation was not in Lowe's best interest. Lowe was not advised

to have separate counsel review the agreement. Lowe and Piro & Lilly

had a long-standing legal representation on an hourly rate basis,

including a previous divorce filing as to Mr. Sarofim, on an hourly basis.

The second divorce petition was filed and legal representation was

begun before the contingent fee agreement was signed (notwithstanding

the self serving statement in the fee agreement itself.) Although Piro &

Lilly claim that it was Lowe's idea to have a contingent fee, the timing

and preparation of the fee agreement and the letters prepared by Piro and

Lilly do not support that claim.

Robert J. Piro and Earle Lilly did not make reasonable use of the

confidence that Linda Lowe placed in them.

Earle Lilly did not maintain solely a professional relationship with Linda

Lowe during this representation. The fact that Lilly and Lowe did not

have sex (disputed by Lowe) is not determinative. Lilly engaged in a

personal romantic relationship with Lowe during the course of the

representation.

Linda Lowe's emotional feelings for Earle Lilly impaired her ability to

agree to the amount of attorney fees.

This impairment benefited the law firm of Piro & Lilly, L.L.P., and the

individual attorneys.

Earle Lilly knew or should have known of her impairment.

Robert Piro knew or should have known of her impairment.

Linda Lowe's alcohol and prescription drug problem impaired her

ability to agree to the amount of attorney fees.

This impairment benefited the law firm of Piro & Lilly, L.L.P. and the

individual attorneys.

Earle Lilly knew or should have known of her impairment.

Robert Piro knew or should have known of her impairment.

Robert J. Piro and Earle Lilly did not act in the utmost good faith and

did not exercise the most scrupulous honesty toward Linda Lowe

Piro and Lilly wrote self serving, untrue letters for Lowe's signature. (Px

17 is the worse [sic] example of the letters, but the letters concerning the

personal relationship between Lowe and Lilly are horrendous also.)

Lilly's acceptance of the expensive gifts and his personal charging on

Lowe's credit at Hermes was in bad faith.

Robert J. Piro and Earle Lilly did not place the interests of Linda Lowe

before their own, did use the advantage of their position to gain a benefit

at the expense of Linda Lowe, and placed themselves in the position

where their self-interest conflicted with their obligations as a fiduciary.

Piro and Lilly wrongfully kept the second payment of the $50,000

retainer. This should have been returned to Lowe or at a minimum tell

Lowe that she had paid the retainer twice and asked for instructions on

it.

The law firm did not even indicate on its bills that it had kept the second

retainer.

Robert J. Piro and Earle Lilly did not fully and fairly disclose all

important information to Linda Lowe concerning the fee agreement and

their representation of her.

Piro & Lilly, L.L.P. did not prepare a written statement describing the

outcome of the matter and the method of determination of their attorney

fee, in violation of their ethical obligations to Lowe. The claim of the

attorneys that they prepared a handwritten statement for the plaintiff, yet

failed to make a copy is not believable. Both attorneys were quite

capable of "papering the file" when it was in their best interest to do so.

Throughout the course of their representation of Lowe and the trial the

alleged amount recovered for Lowe in the underlying case was ever

changing. The value of the life estate in the house was overstated. Most

astonishing was the claim of the value of the lifetime medical when Mr.

Sarofim and his attorney considered it to be of little value at all. Of

course a written statement outlining the value at the time of the divorce

was essential and failure to provide such a statement is a clear, serious

breach of fiduciary duty.

Linda Lowe contested the amount of the fee charged.

Earle Lilly and/or Robert Piro should have told Linda Lowe to consult

another attorney concerning the fee dispute.

Earle Lilly and/or Robert Piro should have placed the fee in a trust

account until the dispute was resolved.

The romantic relationship between Lowe and Lilly could have affected

the ability of Lilly to be an effective advocate if the case had not settled.

Mr. Sarofim and his attorney were aware of the relationship.

Piro's effectiveness as a witness in contesting the prenuptial agreement

would have been compromised by his financial interest in the outcome.

Conclusions Of Law:

Fee forfeiture in the amount of $3 million is appropriate under the facts

of this case.

Both Piro and Lilly breached their fiduciary duty to Lowe.

The breaches were grave, serious and clear.

The breaches continued throughout the representation.

The breaches were willful.

The breaches did not affect the value of their legal work but would have

if the underlying case had not settled.

The conduct of the attorneys offends the public sense of justice and

propriety, and forfeiture is necessary.

Signed March 16, 2000.

/s/ Tracy Christopher

Judge Presiding

1. Because Lowe's death does not affect any issue in this appeal, we will refer to

her executor as "Lowe."

2. The lawyers' original issue one also complained about the trial court's

submission of question 1 in the charge. After Lowe pointed out on appeal that

the lawyers did not object to the submission of question 1 at the charge

conference, the lawyers in their reply brief limited their complaint to the trial

court's refusal to disregard question 1.

See generally Tex. R. Civ. P. 271-279;

State Dep't of Highways & Pub. Transp. v. Payne , 838 S.W.2d 235, 241 (Tex.

1992) (discussing manner of objecting to charge); Mo. Pac. R.R. v. Cross , 501

S.W.2d 868, 873 (Tex. 1973) (holding objections must be made before charge

is read to jury).

3. We limit our review to those subissues properly preserved at trial by an

appropriate trial objection.

See Tex. R. App. P. 33(1)(a).