HOUSTON – A pre-trial conference is set for Aug. 25 in the malpractice suit filed against attorneys Richard Bergner and Don Ford by former client Juliette Fairley in the Southern District of Texas.
Fairley's complaint against the Houston probate attorneys in the wake of what she feels was a gross mishandling of an adult guardianship case involving her father and a San Antonio nursing facility.
Fairley, a New York resident, had hired the attorneys to aid her in a lawsuit against Lakeside Assisted Living and Memory Care, the facility her father James Fairley has resided in since December 2014. The complaint alleged that the facility limited her visitation to two, four-hour long meetings per month (addition monitored visits would cost $50) and that he was not being fed nutritious meals.
Fairley was denied her appeal allegedly due to improper filing by her attorneys.
“When I found out in (Ford and Bergner’s) appeal briefs they had filed outdated estate codes, I thought that was pretty significant,” Fairley told The Record on why she decided to file for malpractice.
Fairley paid the defendants to file an appeal brief, which the opposing counsel countered with their own reply brief after which Fairley was given an opportunity to respond to what she considered was a document “full of lies.”
She advised her attorneys on a list of rebuttals she had written to the brief that she requested they dispute. Not only did they allegedly not include the rebuttals, they supposedly did not show the document to Fairley prior to filing.
“They didn’t want me to know that they hadn’t included any of the rebuttals,” she said. “When you’re working with somebody, you don’t file a brief unless they’ve OK’d it, so that’s malpractice.”
In another incident, Fairley says that a nurse she had employed to take care of her father overcharged her by $500, a fee which the attorneys allegedly said Fairley would agree to pay without consulting her. Additionally, the plaintiffs had filed a motion for re-trial prior to the appeal. She alleges she was told that the appeal brief paperwork could be 50 percent copy and pasted as the information was in the pre-trial motion.
However, when she followed up to check on the matter, she alleges she was told that the file had been lost and started again from scratch and was billed $20,000, which she said was double the initial price. She alleges she was charged $300 and hour for paperwork rather than the $50 an hour she would have been charged otherwise.
Fairley then decided to contact the state’s Client-Attorney Assistance Program (CAAP) to review her options.
“The case was on appeal and super contentious, and it’s hard to find an attorney to take this on,” she said of her apprehension to drop the attorneys from the case. “I was constantly looking for attorneys to take over the case and nobody wanted it. I was afraid to let them go before I found somebody else.”
Eventually the CAAP advised her to let them go in January. Jerry Simoneaux eventually took over the case after Fairley had received a negative ruling from the appeals court, essentially losing her case. They were given an opportunity to file a petition for review with the Supreme Court of Texas, but the attorneys allegedly would not release all of Fairley’s paperwork until the last minute.
“Both of these attorneys are highly educated,” Fairley said. Bergner attended the University of Texas at Austin and Ford Baylor University.
“I went in there completely trusting their competence. I would have liked to have known that all that glitters is not gold. That was a very glittering firm to me.”
She hopes if nothing else that this malpractice case can help others who are looking for an attorney for a guardianship case know to heavily research their attorneys before they sign anything.
Fairley's counsel has recently filed responses to the firm's motion to dismiss.