February 11, 2010 Hearing
On February 11, 2010, a hearing was held in order to hear several motions. Please click on the following link to view the hearing transcript - 2-11-10 Hearing Transcript.
The day before the hearing on February 10, 2010, Wendy Burgower provided the attorney for the father with an invoice of her charges for her actions in the custody case which covered several months of charges. Please click on the following link to view the invoice provided by Wendy Burgower - Invoice dated 2-10-10 by Wendy Burgower. On page 11 of Wendy Burgower's invoice, there is a billing line item for an email that Wendy Burgower sent to the Judge on October 22, 2009.
It's very important to note that attorneys are prohibited from communicating with the Court or the Judge without all of the attorneys copied on the communication or present during the communication. This kind of communication is called an "ex parte" communication. The rule that prohibits "ex parte" communications by attorneys is Rule 3.05 of the Texas Disciplinary Rules of Professional Conduct.
Rule 3.05 of the Texas Disciplinary Rules of Professional Conduct states the following:
Rule 3.05 Maintaining Impartiality of Tribunal
A lawyer shall not:
(a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure;
(b) except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter.
There is also a rule or canon that prohibits Texas Judges from considering "ex parte" communications. The Canon that prohibits Judges from considering "ex parte" communications is Canon 3(B)(8) - Texas Code of Judicial Conduct.
At the hearing on February 11, 2010, the attorney for the father, Walter Mahoney informed the Court that Wendy Burgower had emailed the Court on October 22, 2009, the very same day as when the October 22, 2009 order was signed by the Court. Wendy Burgower responded in disbelief, by exclaiming, "WHAT?!" Please see 2-11-10 hearing transcript, Page 10, Lines 19-22.
Wendy Burgower later confirmed at the hearing that not only did she send an email to Judge Bonnie Hellums regarding the October 22, 2009 order without involving the other attorneys, but Wendy Burgower also admitted on the record to actually going to Judge Bonnie Hellums courthouse on the morning of October 22, 2009 regarding the Judge signing an order for the child. Wendy Burgower went to the court without the other attorneys being involved or having knowledge of her presence at the courthouse. Please see 2-11-10 hearing transcript, Page 14, Lines 11-23.
The father believes that Wendy Burgower made multiple misrepresentations to the court at the hearing on February 11, 2010. She said on the record that she emailed the court on October 22, 2009 and asked one question, "Have you signed an order?" A few minutes later, Wendy Burgower again states on the record that her email to Judge Bonnie Hellums stated, "Have you either signed an order or reformed an order?" Please see 2-11-10 hearing transcript, Page 14, Lines 11-23. The father believes that these statements by Wendy Burgower were misrepresentations to the court because the actual email that Wendy Burgower sent to Judge Hellums on October 22, 2009 did not make any references about Judge Hellums signing an order as Ms. Burgower represented at the 2-11-10 hearing.
The father also believes that Wendy Burgower intentionally misrepresented to the Court on February 11, 2010 that she signed the October 22, 2009 order, when, in fact, Wendy Burgower's signature was not on the October 22, 2010 order. Please see 2-11-10 hearing transcript, Page 14, Lines 18-19.
The only signatures that are on the October 22, 2009 order are Judge Bonnie Hellums, Mary Olga Lovett, and Robert C. Kuehm (Robert C. Kuehm's signature was supposedly signed at the October 2, 2009 hearing by Mary Olga Lovett with Mr. Kuehm's permission even though Robert C. Kuehm was present at the October 2, 2009 hearing). Please click on this link to view October 22, 2009 order.
The father believes that the misrepresentations made by Wendy Burgower at the February 11, 2010 hearing were in violation of Rule 3.03(a) and 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct which states the following:
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(a) A lawyer shall not:
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
The actual email that Wendy Burgower sent to Judge Hellums on October 22, 2009 was the email that the father sent to Ms. Burgower on October 21, 2009 regarding the representation that Ms. Burgower made to the school principal about the injunction prohibiting visits to the school being valid. Wendy Burgower forwarded the father's October 21, 2009 email to Judge Bonnie Hellums and stated the following, "Judge - this immediate. I will come to your courtroom this morning." Please see the October 22, 2009 email that Wendy Burgower sent to Judge Hellums. October 22, 2009 email from Wendy Burgower to Judge Bonnie Hellums.
Pursuant to Rule 3.05 of the Texas Disciplinary Rules of Professional Conduct, the father strongly believes the October 22, 2009 email communication that Wendy Burgower sent to Judge Bonnie Hellums and Ms. Burgower's action on October 22, 2009 by going to the Judge Hellums' courtroom were both "ex parte" communications in violation of Rule 3.05 of the Texas Disciplinary Rules of Professional Conduct.
"Ex Parte" Communications are defined as being communications that are made by an attorney to a Tribunal or Court that do not involve all that are legally entitled to participate in the communication. The reason these types of communications are prohibited is because of the risk these communications pose in improperly influencing the outcome of a pending matter. Wendy Burgower's communications to the court on October 22, 2009 did not involve all of the persons that were legally entitled to be involved.
At the hearing on February 11, 2010, when Wendy Burgower asked Judge Hellums if anyone "ex parte'd" her, Judge Hellums responded, "no." Please click on this link to view her response in the 2-11-10 hearing transcript, Page 22, Lines 9-13.
Question:
(1) Why would Judge Bonnie Hellums actually admit in open court that she allowed and considered "ex parte" communications from Wendy Burgower in violation of the Texas Code of Judicial Conduct and the Texas Disciplinary Rules of Professional Conduct?
It is the father's opinion that based on Rule 4.04 of the Texas Disciplinary Rules of Professional Conduct, Texas attorneys are prohibited from using grievances to gain an advantage in a civil matter.
Rule 4.04 of Texas Disciplinary Rules of Professional Conduct states the following:
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer shall not present, participate in presenting, or threaten to present:
(1) criminal or disciplinary charges solely to gain an advantage in a civil matter; or
(2) civil, criminal or disciplinary charges against a complainant, a witness, or a potential witness in a bar disciplinary proceeding solely to prevent participation by the complainant, witness or potential witness therein.
At the hearing on February 11, 2010, Wendy Burgower made references in open court regarding the grievances that the father filed against Wendy Burgower in what the father believes was a violation of Rule 4.04 of the Texas Disciplinary Rules of Professional Conduct. Please click on this link to view the 2-11-10 hearing transcript, Page 14, Line 25 & Page 15, Line 1.
At the hearing on February 11, 2010, Mary Olga Lovett made several references in open court regarding grievances that were filed by the father against her, Wendy Burgower and another attorney in what the father believes was a violation of Rule 4.04 of the Texas Disciplinary Rules of Professional Conduct. Please click on this link to view the hearing transcript, Page 24, Lines 4-6.
At the hearing on February 11, 2010, Robert C. Kuehm made references in open court regarding the grievances filed by the father against Wendy Burgower in what the father believes was a violation of Rule 4.04 of the Texas Disciplinary Rules of Professional Conduct. Please click on this link to view the hearing transcript, Page 24, Lines 1-3 & Line 7.
DISCLAIMER: It is important for all who read the information on this website to understand that these are the OPINIONS of the father based on the evidence provided.
If you have any comments that you would like to make or issues that you would like to discuss, please go to the father's blog at the following link. Father's Blog.