Saturday, January 8, 2011

ECUSA's Fort Worth Attorney Charged with Unprofessional Conduct

Bishop Jack L. Iker and his attorneys yesterday filed responses to the motions for partial summary judgment brought by ECUSA and the "Local Episcopal Parties" (which is how Bishop Ohl and his group are styling themselves in court), and which are due to be heard on January 14 by Judge Chupp, as discussed in this post. The opposition papers are very well written, and make telling points against ECUSA's arguments. I shall quote from them extensively in subsequent posts.

ECUSA and the Local Episcopal Parties also filed their opposition papers to the motion for partial summary judgment brought by Bishop Iker, his Diocese, its Corporation, the Trustees, and Standing Committee, and the intervening congregations of the Diocese. Again, I shall have more to say about their opposition in subsequent posts.

What I wish to call your attention to in this post is something that had completely escaped me in previous visits to the multifarious litigation occurring in Fort Worth. One of the attorneys for Bishop Ohl and the Local Episcopal Parties, Jonathan Nelson (he argued at the initial hearings in front of Judge Chupp), who is now on his own, was earlier in a law partnership in Fort Worth called Broude, Nelson & Harrington, P.C. As a member of that law firm, he represented the Corporation of the Diocese of Fort Worth in a 1993 lawsuit against the Rev. M. L. McCauley, of the Church of the Holy Apostles, who had voted with his vestry to leave the Diocese and join the Antiochian Orthodox Church.

Bishop Iker was then the Co-Adjutor of the Episcopal Diocese of Fort Worth, scheduled in 1994 to succeed the Rt. Rev. Clarence C. Pope, Jr., who as the diocesan was also the head of the associated Corporation. That Corporation, in turn, was established to hold legal title to the real property of all the parishes in the Diocese -- including the Church of the Holy Apostles. Thus when the Rev. McCauley and his vestry claimed the right to continue to occupy the parish's property after they had joined the Orthodox Church, the Corporation of the Diocese had to become the plaintiff in a lawsuit filed to oust them from possession. The attorney who participated in drafting the complaint and supporting affidavits for the plaintiff Corporation, and who signed his name to the pleadings, was Jonathan Nelson, of Broude, Nelson & Harrington, P.C., Fort Worth, Texas.

Now that same Jonathan Nelson is representing the minority who, with their provisional bishop, has brought suit against Bishop Iker and the other trustees of the diocesan Corporation. And he has the gall to offer, on behalf of his current clients, the very pleadings and affidavits which he mainly drafted in the 1993 lawsuit as ostensible "judicial admissions" on the part of his former clients.

On the surface of things, this appears as such a monumental departure from the norms of legal practice that I want to proceed very deliberately in this post. Let me begin by quoting from the motion papers filed by Mr. Nelson on behalf of the Local Episcopal Parties -- i.e., the clients whom he currently represents (nominal p. 24, actual p. 33 of the document just linked):
When Iker and his faction were still part of the Episcopal Diocese of Fort Worth, they were successful in recovering The Church of the Holy Apostles for The Episcopal Church and the Diocese from that earlier breakaway faction.59 The positions Iker and his followers took in those affidavits in the Holy Apostles case have the power of judicial estoppel.
I have added the bold emphasis to highlight what I consider to be extraordinary statements made by Mr. Nelson on behalf of his current clients. He first claims that Bishop Iker (who succeeded Bishop Pope during the lawsuit) recovered the possession of the property of the Church of the Holy Apostles "for The Episcopal Church and the Diocese . . .". But the lawsuit which Mr. Nelson filed for the diocesan Corporation was solely in its name -- the "Episcopal Church" as such was not ever a party to the lawsuit. You can view the actual petition filed in the name of the Corporation, and in the name of the remnant parish, beginning at page 6 of this exhibit. Mr. Nelson never purported to sue on behalf of "The Episcopal Church" at the time, and so his claim to have done so, made now in a context that is wholly adverse to his former client, is a blatant betrayal of that client's trust and confidence.

Bishop Iker has given the District Court in Tarrant County another very interesting document to evaluate in the context of the current motions for summary judgment. It is a "Memo to File" written in the context of the 1993 lawsuit against the Rev. McCauley by the very same Jonathan Nelson who is now suing Bishop Iker and the other trustees of the Diocesan Corporation. (It begins at page 27 of this link, and continues for the next five pages.) To place this document in context, let us return to Mr. Nelson's memorandum in the Tarrant County District Court case, in which he quotes Bishop Iker's affidavit filed in the Holy Apostles lawsuit -- and in which Mr. Nelson insists Bishop Iker made a judicially binding admission that the Episcopal Church is "hierarchical". Here first is a passage from the earlier-linked memorandum in support of partial summary judgment filed by Mr. Nelson on behalf of his current clients (at nominal page 19 of the printed document; actual page 28 of the .pdf document), where he quotes Bishop Iker's earlier affidavit:
And when Defendant Iker was still a bishop within The Episcopal Church, and when his breakaway faction was still a part of that Church, Iker and his agents made numerous representations to courts, in sworn testimony and pleadings, that The Episcopal Church is a hierarchical church:
. . .

"The Diocese is an hierarchical church, meaning . . . each parish consists of members of The Episcopal Church confirmed in or transferred to that parish .... Under the Constitution of the Diocese and under Canon law, no person may be a member of a parish who is not a member of The Episcopal Church." [Footnote, referring to Bishop Iker's affidavit in the Church of the Holy Apostles case, reproduced as part of Exhibit 2 to the affidavit of Jonathan Nelson in support of motion for partial summary judgment, starting at page 40 of the .pdf file.]
Never mind that what Bishop Iker attested was "hierarchical" was "The Diocese" -- and not the whole Episcopal Church (USA). Mr. Nelson argues that this passage from Bishop Iker's affidavit is a judicial admission, binding on him in any later lawsuit, that The Episcopal Church itself is "an hierarchical church." (And please take special note of the idiosyncratic use of the article "an" with the aspirated "h" of the first syllable of the word "hierarchical". While an educated person might say the phrase "an historical event", because the "h" of "historical" can be left out (not aspirated), and the "n" of "an" elided with the initial "i" of "'istorical", to leave out the "h" in "an hierarchical church" is not as common, in my experience.)

As a consequence of this uncommon usage, however, we have no trouble in identifying the fine handiwork of Mr. Nelson in formulating the precise words of Bishop Iker's affidavit quoted above, because here is how Mr. Nelson phrased the same idea in his "Memo to File" dated August 9, 1993 (I have added the bold for emphasis):
10. The diocese is an hierarchical church, meaning:

a. each parish consists of members of The Episcopal Church confirmed in or transferred to that parish, who are in communion with the Bishop and the parish being in union with the diocesan convention . . .
For an attorney to use his own words against his former client in a subsequent case is not only barred by the professional code of ethics by which all attorneys are bound, but it is reprehensible as well. Here is a short passage from the memorandum filed by Bishop Iker yesterday (I am omitting all footnotes):
The only argument in this motion that is not in TEC's motion is an assertion that Defendants are bound by previous admissions that TEC is hierarchical. This argument takes a lot of nerve, as it is based on documents drafted by Plaintiffs' counsel back when he was counsel for the Defendants.
. . .

This is an unsavory attempt by an attorney to use words he drafted for a client against that very same client and in favor of a new one. Plaintiffs' counsel Jonathan Nelson represented the Corporation, the Diocese, Bishop Iker, and their representatives in the Holy Apostles litigation) As he stated in his closing letter to Bishop Iker, "It has been a privilege and a pleasure to represent both you and the church in this matter ." He drafted the pleadings in that case, and wrote a memo advising Bishop Iker and other affiants what they needed say. As the Second Court of Appeals unequivocally found, he no longer represents the Diocese or Corporation. Having been paid to draft documents for them, he now attempts to use his own words against those he used to represent.
Ouch! The memorandum goes on to spell out the ethical violation involved:
Texas Disciplinary Rule 1.05(b)(3) provides that "a lawyer shall not knowingly: ... [u]se confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known." "Confidential information" is not limited to privileged information, but includes" all information relating to a client or furnished by the client." And "generally known" requires actual knowledge of the facts in question. The Diocese and Corporation object to such a blatant misuse of the information they paid Mr. Nelson to prepare, and ask the Court to strike it from the record.
I believe I can anticipate Mr. Nelson's response -- something along these lines: "Yes, I represented the Diocesan Corporation, and I still am representing that same Corporation today. It's just that Bishop Iker has usurped it for the time being, and so I have to prevail here before I can truly represent it." It will be very interesting to see how that defense goes down with Judge Chupp next Friday.

As Bishop Iker's memorandum argues, if any side should be bound by the claimed admissions, it is the parties whom Mr. Nelson currently represents:
If there is to be any estoppel in this case, surely it should be directed against Mr. Nelson rather than by him. In the Holy Apostles case, Mr. Nelson drafted:
• a memo advising his clients that TEC was a "confederation of dioceses" - not a separate hierarchy ruling over them;

• a memo that "the diocese is an hierarchical church" - not that TEC is an hierarchical church;

• a petition pleading these same things;

• a motion for summary judgment asserting these same things;

• a pleading and motion for summary judgment asserting that the courts should defer to the Diocese on a property question - and in which TEC was not even a party; and

• a pleading that the Corporation owns legal title and the parish owns beneficial title to Diocese property - with no mention of TEC owning anything.
This kind of lawyering gives the profession a bad name. The Court should sustain the objection to this evidence.
In subsequent sections, the memorandum demonstrates that the claimed "admissions" are actually consistent with what Bishop Iker has been contending all along, because they say only that the diocese is hierarchical, and not ECUSA itself:
Local TEC lists statements in text, bullets, and footnotes allegedly showing that Defendants have previously admitted that TEC is hierarchical. The argument is long on quantity because it is short on quality. For example:
• the Diocese's statement "dissociating ourselves" from TEC in no way supports the strange claim that it" acknowledges the hierarchical structure" of TEC;

• Bishop Iker's statement that "[t]he Diocese is an hierarchical church" doesn't say that TEC is hierarchical; it means exactly what it says: the Diocese is the ecclesiastical authority;

• statements that bishops, parishes, and others affiliated with TEC must follow its Constitution and Canons do not acknowledge any hierarchical authority beyond what those documents actually say; and

• an ordination oath promising "to conform to the Doctrine, Discipline, and Worship of the Episcopal Church" does not say anything about granting authority to TEC to take away all the affiant's property.
None of these statements shows that the Diocese ever thought TEC was the ultimate authority on property ownership. It is undisputed that the Diocese claimed just the opposite in its very first Constitution. These" admissions" show only that the Diocese is hierarchical at the diocese level, which is consistent with the name "Episcopal" and TEC's own Constitution and Canons.

Local TEC argues that because TEC is hierarchical at some level, it must be completely hierarchical all the way to the top. But there is no law that says churches must be 100% hierarchical or 100% congregational; such a law would surely violate the First Amendment's Free Exercise clause. Texas courts recognize that "[t]he terms hierarchical and congregational are poles on a continuum along which church organizations fall." Legally and historically, TEC is hierarchical from the diocese down, but not from the diocese up. That is all these so-called admissions say, and they are as true today as they were before.
There is much, much more: the memoranda and the accompanying exhibits -- including two affidavits from Dr. Jeremy Bonner, of Pittsburgh, which completely refute those of ECUSA's expert, Prof. Mullen -- are all worthy of your attention. In subsequent posts leading up to Friday's hearing, I shall be highlighting the principal arguments.

Fasten your seatbelts -- this is going to be quite a ride!


  1. Mr. Haley,

    I have two brief questions:

    (1) Does the filing of the Defendant's Supplemental Appendix, in and of itself, constitute a charge of "Unprofessional Conduct" or is that done through a separate document?

    (2) If the relelvant charge has been made and if pursued and Mr. Nelson were to be found guilty, what penalties might apply to Mr. Nelson?

    Pax et bonum,
    Keith Töpfer

  2. Dear Allan,

    While I take very kindly your conferral of a professorship upon me, alas it is not so. A doctorate, yes; a professorship, no.

    Just so there's no confusion.

    Of course, if you're graced with powers of prophecy, you won't hear me complaining.

  3. You have taught a number of courses in history and religion, Dr. Bonner, at Duquesne, Robert Morris and the Catholic University of America, so that made you already a professor in my eyes. May it come to pass!

    Keith Töpfer, there are two senses of the word "charge". By making the accusation in a court pleading, they are "charging" Mr. Nelson with unprofessional conduct in the current case, and bringing that behavior to the judge's attention. The judge has the power, if he chooses to exercise it, to sanction Mr. Nelson for unprofessional conduct before his court (probably impose a fine, or require him to reimburse Bishop Iker for his attorneys' fees in having to respond to the conduct).

    Mr. Nelson is also subject to discipline by the Texas bar. For that to happen, formal charges would have to be lodged with that body (either Bishop Iker or his attorneys -- or even Judge Chupp -- could do so), which would then investigate them before proceeding further. That body would have the power to suspend or revoke Mr. Nelson's license to practice law in Texas, depending on the severity with which it viewed the conduct upon concluding its investigation.

  4. Under Texas law, judicial estoppel does not apply because one of the elements is that the party on whose behalf the sworn statement was made prevailed in the earlier litigation.

    In the case involving the Church of the Holy Apostles, the parties reached an out-of-court settlement under which the Antiochan Orthodox congregation returned the property to the Diocese, so there was never an adjudication under which one side or the "prevailed."

  5. Allan -

    "I believe I can anticipate Mr. Nelson's response -- something along these lines: "Yes, I represented the Diocesan Corporation, and I still am representing that same Corporation today."

    So Nelson is going to go and argue that he is violating the order of the court as a defense? He has been BARRED from representing that corporation by order of the court.

    He's dug himself a big hole here, out of which I dont see how he wiggle.

  6. One could well argue that TEC is 100% hierarchical "to the top", if top refers simply to General Convention and the national canons. It is not 100% hierarchical if it means there is some higher-ranking "pope" above the diocesan level with the power to reconstitute dioceses.

  7. Hoofin -- thank you for the comment (sorry I could not moderate it sooner). However, the problem with ECUSA at the moment is that all there is "at the top" is "some higher-ranking 'pope' above the diocesan level [who claims] the power to reconstitute dioceses." And no one designated her as "pope", and no one gave her that "power."

  8. My father was a member of the vestry and, thus, was named alongside the late Fr. Patrick McCauley in the Holy Apostles lawsuit pursued by Mr. Nelson, so I still have a lingering interest in the suits now being pursued against Bp. Iker. This is not to say that I bear ill will towards Bp. Iker; on the contrary, it is my sincere hope that he and the Episcopal Diocese of Fort Worth prevail in these proceedings. God has been very good to us in the intervening years. Now known as St. Peter Antiochian Orthodox Church, we have flourished in our new surroundings and now have, through God's grace, a parish day school.

    Though the laws concerning parish property vary widely from state to state, it might be interesting to compare and contrast the current lawsuits in Texas and California with a case in California that involved Sts. Peter & Paul in Ben Lomond against an organization that actually is hierarchical; namely, our own Antiochian Archdiocese. Much of the testimony in that case, however, revolved around centuries-old canon law as contrasted with the recent “canons” of a General Convention.

  9. Mr Powers,
    You are incorrect in your analysis of the required elements of the use of non-mutual offensive collateral estoppel. It is not a prerequisite that the party prevail.

    The policy behind judicial estoppel is to preserve the integrity of the judicial system by preventing parties from making contradictory sworn statements to the courts. The element you may be thinking of is the fact or issue at hand must have been "actually litigated." When a case reaches a settlement, the settlement is usually finalized in a court order and constitutes a final judgment.

  10. crunkfever86, I will leave Texas law to you and Paul Powers to debate. However, you might want to review pages 5 and 6 of the memorandum at this link. There can be no judicial estoppel where the statements in question were unsworn, and in the case of the two prior statements which were sworn, they remain true as sworn today.

  11. Crunkfever86: The Texas Supreme Court disagrees:

    "Judicial estoppel precludes a party who successfully maintains a position in one proceeding from afterwards adopting a clearly inconsistent position in another proceeding to obtain an unfair advantage. Accordingly, a party cannot be judicially estopped if it did not prevail in the prior action." Ferguson v. Building Materials Corp. of America, 295 S.W.3d 642 (Tex. 2009)[emphasis added].

    A settlement sometimes results in an agreed judgment, but often times it results in a dismissal, which means from the court's point of view, neither side wins. I don't remember which way they did it in the Holy Apostles' lawsuit.

    Either way, the statement in the Local Episcopal Group's pleadings that the Diocese "prevailed" in that case gives the court the incorrect impression that there was a court ruling in favor of the Diocese in the previous lawsuit based in part on the statements of Bishop Iker and others. This is unfortunate.

  12. Paul Powers, the affidavit of Jonathan Nelson referenced in the post states only (para. 3) that the lawsuit against Holy Apostles "resulted in a settlement" by which the Diocese recovered possession of the property. One would think that if there had been a stipulated judgment, Mr. Nelson would have attached it as an exhibit. It sounds as though the parties settled and the lawsuit was dismissed.

  13. All I remember is that the parties in the Holy Apostles lawsuit reached a settlement under which the Diocese and the Episcopal parish got the property back. I don't remember whether the lawsuit was concluded by a dismissal or an agreed judgment, and for purposes of judicial estoppel, I'm not sure it matters.

    I am relieved, however, that Mr. Nelson specified in his affidavit that the previous lawsuit ended in a settlement and didn't leave the judge in this case with the mistaken impression that the previous lawsuit had been litigated and that a decision or verdict had been made in favor of the diocese.

    And as Xenophore correctly pointed out, the Antiochan Orthodox congregation has done well since then. The lesson there is that while losing your church building is painful, it's not always the end of the world. Parishes (and dioceses) are people, not property.

    By way of disclaimer, I am not counsel for any of the parties to the Fort Worth lawsuits, and any opinions I express are my own.