Did high-powered, Lubbock personal injury attorney Kevin Glasheen do diddly-squat for the wrongfully imprisoned Steven Phillips, aside from filling out a one-page form with the State Comptroller? Or is Phillips an ungrateful client who stiffed his attorney on a $2 million legal bill, filed for $4 million in compensation through the state himself, then took the money and ran?
Judge Ken Molberg calls bull on both counts in an order dated Friday, replete with canonical literary references and Greek mythology, suggesting a growing impatience with the parties' posturing. But even more interesting is what a key ruling may mean for other exonerees who paid Glasheen millions.
First, a little background:
Phillips was locked up for 25 years on a string of rapes he didn't commit. He was paroled in 2007, and six months later the Innocence Project in New York convinced newly elected Dallas County District Attorney Craig Watkins to order DNA testing. In August 2007 he was officially exonerated of the crimes. Short on cash, he signed on with Glasheen, who was handling the cases of other Texas exonerees seeking more money -- through civil lawsuits and, finally, by lobbying the state legislature to increase the compensation rate, more than tripling the amount the state pays the wrongfully imprisoned.
But when the bill came due -- Glasheen wanted 25 percent of Phillips' $4 million -- he balked, firing the attorney and filing for compensation on his own. Phillips claimed he wanted to sue the city of Dallas all along. He didn't hire the lawyer to lobby. Glasheen says, 'Well, if that's the case, why did he file for compensation, which would have immediately foreclosed the possibility of a lawsuit?' (For a lengthier discussion of the fight, check this cover story.)
Particularly rankling to Phillips was the fact that the fee agreement Glasheen is seeking to enforce comes not just from the $2 million lump sum the exoneree was paid, but from a $2 million annuity paid out annually, and which is in no way guaranteed. If Phillips dies prematurely or is convicted of a felony -- and he was just charged with one in August for cocaine possession -- the annuity checks stop coming.
"That criminal charge underscores the point we've been making all along about the annuity," Phillips' attorney Randy Turner tells Unfair Park.
In Phillips's motion for partial summary judgement, he asked that Molberg rule against Glasheen taking part of his fee from the "present value" of the annuity, and the judge grants the motion in this order.
Glasheen says that at the time the contract was signed, there was no annuity provided for in the compensation statute. "Since Steven didn't agree to pay us that way, we're not claiming we have the right to get paid on the present value," he said, but noted that Molberg's order didn't necessarily prevent him from getting a fee on Phillips's annuity payments.
Turner wonders what this ruling means for the other exonerees who've already paid out millions -- half of which came from an annuity. "The judge told him he can't do that, which he did with eight or 10 other exonerees. I have two exoneree clients, Patrick Waller and James Giles. He charged them. He kept 25 percent of what they may someday in the future get."
But Molberg left key elements of the case for the jury, namely whether Phillips had good reason to fire Glasheen, and whether the lawyer committed fraud and breached his fiduciary duty.
"What is clear is this," Molberg begins in his colorful order below. "When one whittles through the often emotional bark to reach the hardwood of facts and law that actually underpin the outcomes of the parties' motions, neither side is so seriously blameless or blameworthy as portrayed. With apologies to F. Scott Fitzgerald, this court is not affected by the colossal vitality by either of these Gatsby's illusions. To suggest, as Phillips does, that Glasheen was inconsequential in Phillips' now-more-than $2 million recovery and his anticipated recovery of $2 million more is imaginative, to say the least.
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"Almost literally, Glasheen pulled Phillips' ox out of the ditch, and Phillips' lethean indulgence of the facts is unpersuasive. On the other hand, to argue, as Glasheen does, that Phillips has no basis for his positions here is equally unpersuasive."
The question, Molberg continues, comes down to this: Did Phillips fire Glasheen with good cause. No trial has been set, but that will be for a jury to decide.Order Regarding MULTIPLE Motions 10 03 11