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!

New Filings in Fort Worth

Judge Chupp of the Tarrant County District Court in Fort Worth now has his hopper full of motions in the case brought by the rump diocese and its bishop (Bishop Ohl) against Bishop Iker, the trustees of the diocesan Corporation, and the members of the diocesan standing committee. (Please see this earlier post for a rundown of what has occurred previously.)

[UPDATE 01/06/2011: Late this afternoon, word was received that Judge Terry R. Means of the United States District Court for the Northern District of Texas -- whose previous stay order I discussed in the post just linked -- has now extended his stay to all further proceedings in the federal lawsuit filed against Bishop Iker, pending resolution of the proceedings in State court. The effect of this ruling will be to halt the need to waste further money on legal proceedings in two fora at the same time -- and it also blocks ECUSA's attempt to conduct an end-run around the Texas Court of Appeal's ruling, which it did not accept for the reasons I discuss below. One can only be thankful for courts who are quick to grasp the bigger picture.]

In the Tarrant County lawsuit, as readers may recall, the Court of Appeal ordered Judge Chupp to strike all the pleadings filed by Bishop Ohl's attorneys (Jonathan Nelson and Kathleen Wells) filed in the name of "the Episcopal Diocese of Fort Worth" and its associated Corporation. In doing so, the Court held:

. . . [N]either side has challenged the trial court's finding that Mr. Nelson and Ms. Wells did not discharge their burden of proof that they were hired by individuals holding positions at the time of their hiring within the Fort Worth Diocese and the Corporation that were associated with Bishop Iker. Absent such proof, while Mr. Nelson and Ms. Wells may be authorized to represent the individuals who hired them, these attorneys have not established their authority to represent or appear on behalf of the Fort Worth Diocese and the Corporation as required by rule 12.

It is undisputed that there is only one Corporation and only one Fort Worth Diocese, regardless of how those entities are named or characterized in the underlying suit - whether as entities, as individuals "holding themselves out" as those entities, or as individuals "associated with" one or the other Bishop. There is a single Fort Worth Diocese and Corporation, which both a majority and a minority faction claim to control. The attorneys whose authority is challenged are either authorized to represent those two entities or they are not. But the trial court has barred them from representing only the Corporation and the Fort Worth Diocese associated with the Iker Group. We are aware of no statute or common law rule allowing attorneys to prosecute a suit in the name of a corporation or other entity on behalf of only one faction or part of that corporation or entity against another part or faction.

Now take a look at how Bishop Ohl and his group have tried to defeat the effect of this clear holding in all their subsequent filings in the District Court. Here is a link to a page where you may download copies of all their recent pleadings, including a sixth amended petition for declaratory and injunctive relief, and a motion for partial summary judgment. You will see that at the request of the beleaguered court clerk's office, they have now mercifully shortened the caption just to "The Episcopal Church, et al., v. Franklin Salazar, et al." Nevertheless, the allegations concerning the parties read in part as follows:

3. Plaintiff the Rt. Rev. C. Wallis Ohl became the Provisional Bishop of the Episcopal Diocese of Fort Worth ("Diocese of Fort Worth" or "Diocese") -- a non-profit unincorporated association with its principal office in Fort Worth, Texas and a subordinate unit of the Church comprised of the Church's worshipping congregations located in all or part of 24 Texas counties, including Tarrant County -- in November 2009, and appears individually and in his capacity as Provisional Bishop, and also as the Chairman of the Board of Trustees of the Corporation of the Episcopal Diocese of Fort Worth ("Diocesan Corporation"), and, to the extent possible, and necessary, on behalf of the Diocese andlor Diocesan Corporation. In his capacity as Provisional Bishop, Bishop Ohl also appears and asserts claims on behalf of [there follow the names of 38 individual congregations] . . .
. . .

6. Defendant the Rt. Rev. Jack Leo Iker was formerly an ordained member of the clergy of the Church and formerly Bishop of the Diocese. Plaintiffs are informed and believe that Defendant Bishop Ileer wrongfully holds himself out as the Bishop of the Diocese and as a Trustee and Chair of the Diocesan Corporation. Plaintiffs assert claims against Defendant Bishop Iker in his individual capacity and in his purported official capacity as bishop of the Diocese and Chairman of the Board of the Diocesan Corporation.
. . .

9. Plaintiffs are informed and believe that the party that has attempted to intervene as "The Corporation of the Episcopal Diocese of Fort Worth" -- but that has no affiliation with The Episcopal Church -- is either a faction not recognized by the Church or an entity of unknown form that is purportedly led by former members and clergy of the Church and the Diocese and whose leaders purport to be affiliated with the Anglican Province of the Southern Cone (hereinafter the "Southern Cone Corporation"). These purported leaders wrongfully hold themselves out to be the leaders of "The Corporation of The Episcopal Diocese of Fort Worth" and are wrongfully doing business as the Diocesan Corporation. . . . The Southern Cone Corporation does not have legal capacity to sue as such, is not entitled to recover in the capacity in which it has sued, and lacks standing to pursue its claims. The only legitimate and recognized corporation by this name is governed by trustees the Rt. Rev. C. Wallis Ohl, Robert M. Bass, Cherie Shipp, Dr. Trace Worrell, the Rev. James Hazel, and the Rev. John Stanley, a Texas non-profit corporation with its principal office in Fort Worth, Texas, formed in 1983 . . .

10. Plaintiffs are informed and believe that the party defendant that has appeared as "The Episcopal Diocese of Fort Worth" -- but which has no affiliation with The Episcopal Church -- is either a faction not recognized by the Church or an entity of unknown form . . . (hereinafter the "Southern Cone Diocese"). . . . The Southern Cone Diocese does not have legal capacity to sue as such, is not entitled to recover in the capacity in which it has sued, and lacks standing to pursue its claims. The only legitimate and recognized entity by this name is led by the Rt. Rev. C. Wallis Oh!. . . .

And so on and so on -- do you get the drift? The plaintiffs just cannot, and will not, abandon their theory that an individual entity in the eyes of the law -- in this case, an unincorporated association formed into a diocese of a particular denomination -- is simply not free to pull out of that denomination and join another one. They maintain this position despite the lack of any language in ECUSA's Constitution to that effect (and any such language would violate the freedom of association guaranteed by the First Amendment, in any event), despite the lack of any legal precedent in their favor, and despite the historical precedent against them (the departure of nine dioceses at the start of the Civil War). And they are going to maintain their position at all costs, until some higher court finally puts a stake through its unlawful heart.

Notice, for example, how for this "theory" to hold, a diocese must be described as a "subordinate unit of the Church" in paragraph 3 quoted above. I wonder what all of ECUSA's other, legitimate dioceses think of their being portrayed in court as "subordinate" without their having consented to the filing of a such a pleading on their behalf. Of course, by their not taking steps to curtail any such abuse of their authority, they lend their unwitting support to 815's outlandish claim, and make it that much more difficult to climb out from under the tyranny they have thus allowed to take over. Such is the price of burying one's head in the sand while all manner of abuses, carried out ostensibly in one's name or on one's behalf, proceed unchecked.

To return to the Fort Worth lawsuit: shaping up thus is a battle royal to see who has the legal right to be in charge of the one and only diocese organized in 1983. Whoever controls that diocese will also in law control its associated corporation. And since all agree at this time that there is only one diocese and one corporation, then whoever loses the battle will have to go out and form a new diocese and a new corporation.

In order to assess the chances of the motion for partial summary judgment filed by Bishop Ohl and his group, the careful reader needs to go to this page as well, from which he or she may download a copy of the motion for partial summary judgment that has been filed by Bishop Iker and his attorneys. I make no claim of impartiality, since I am helping to make many of the same arguments in the pending lawsuit over the Diocese of San Joaquin in the California Superior Court, in Fresno County. Nevertheless, I think it will be clear to such an impartial reader who has the better arguments -- we shall see.

Both motions for partial summary judgment are scheduled for hearing in front of Judge Chupp a week from this Friday, on January 14. At the same time, Judge Chupp will be hearing a motion about a discovery dispute over the production of documents, brought by Bishop Ohl against Bishop Iker, as well as another motion which Bishop Ohl filed just before the end of the year.

This last motion is an attempt to employ the strictures of Rule 12 -- the rule that brought down the attempts by Jonathan Nelson and Kathleen Wells to file pleadings purporting to be in the name of the "Episcopal Diocese of Fort Worth" and its associated Corporation -- against the attorneys for Bishop Iker. The motion makes the claim that they cannot have been properly authorized to file suit on behalf of those entities, either -- because who actually controls them is still up for grabs in the main lawsuit, don't you see?

Now, please scroll up and re-read that excerpt from the opinion of the Court of Appeal quoted earlier. It states that there is only one Diocese of Fort Worth, and only one associated Corporation. And it states that there are two factions, each of which claims control. But of those two factions, one is the majority, and the other is the minority. (Guess which is which.)

So I ask: Can you discern in the Court's language any hint of a suggestion that the majority of an unincorporated association is without any authority to engage legal counsel on its behalf? Or that the head of a corporation, who has been duly elected by that same majority, may not do the same for the corporation which he heads?

This latest motion is just another silly attempt to bootstrap the rump diocese's argument that ECUSA really gets to call all the shots in this game, and to say just who is and who cannot be the real Diocese and Bishop of Fort Worth -- that is, the head of the organization that was founded in 1983 and has existed continuously under Texas law ever since. No State that I know of cedes its authority to recognize corporations and associations to third parties -- including religious denominations. This point was made long ago by the Supreme Court of Alabama, in a 1979 case:

The courts in this state have long recognized the concept that, whenever there is an incorporated church, there exist two entities . . . [T]here is a spiritual church and a secular legal corporation, each separate though closely connected. Each entity has a separate purpose. Questions involving the spiritual church are ecclesiastical in nature, and civil courts cannot decide any questions concerning this entity. In contrast, the secular corporate entity is formed by the state and performs civil functions, e.g., holding title to church property, and is in no sense ecclesiastical in its function; therefore, civil courts can decide questions concerning the corporation.

Trinity Presbyterian Church v. Tankersley (Ala. 1979) 374 So.2d 861, 866.

So keep your heads up for news of the arguments on January 14. As always, there will be commentary here as soon as a decision is released.

An Announcement

It did my soul some good to swear off politics and religious quarrels for the last two weeks of 2010. Resisting the itch to react to every piece of news, whether irritating or refreshing, has allowed me the room to gain a deeper and longer perspective on the march of events.

As a consequence, blogging will become less frequent in 2011. There are now some 644 posts on this site, which will celebrate its third year in just nine more weeks. They could be collected into quite a sizable book -- not that anyone would pay to own such a gallimaufry of ideas and opinions. Here they can be viewed for free, and hopefully do not lose much of their relevance with the passage of time.

I shall spend the next few months on a re-design of the Guide to This Site, to make it even friendlier and easy to use. As events occur in which I take a special interest -- the legal vicissitudes of ECUSA in the courts, for instance -- I shall post on them, to be sure. But there is no longer any need to blog for blogging's sake. Enough has been written on the basic themes of this blog for you to know where its author stands.

Besides, there are always new and upcoming bloggers who are worthy of your attention. The latest such is Iain Carstairs, who has begun with a noteworthy post on the inability of materialism to satisfy the yearnings of consciousness. I shall be adding a link to his blog on the right, and will always be on the outlook for other worthy new links, as well.

It is my prayer that 2011 bring blessings, happiness and accomplishments to all of you.