736 Tex. 214 SOUTH WESTERN REPORTER, 3d SERIES

for entry of judgment against Colonial for$30,000, the face amount of the bond.

,

Tracy Dee CLUCK, Appellant,

v.

COMMISSION FOR LAWYERDISCIPLINE, Appellee.

No. 03–05–00033–CV.

Court of Appeals of Texas,Austin.

Jan. 19, 2007.

Background: In attorney disciplinaryproceedings brought by State Bar of TexasCommission for Lawyer Discipline, the201st Judicial District Court, Travis Coun-ty, Mary D. Roman, J., entered summaryjudgment in favor of Commission, deter-mining that attorney committed profes-sional misconduct. Attorney appealed.

Holdings: The Court of Appeals, DavidPuryear, J., held that:

(1) advance fee of $15,000 charged by at-torney to represent client in divorceproceedings was a prepayment of a feeand not a true retainer, and

(2) attorney’s failure to deposit client’spayment into trust account violateddisciplinary rules, even though contractfor legal services stated that the feewas nonrefundable.

Affirmed.

1. Attorney and Client O37.1

The violation of one disciplinary ruleis sufficient to support a finding of profes-sional misconduct. V.T.C.A., Government

Code Title 2, Subtitle G App. A–1, Disci-plinary Procedure Rule 1.06(V)(1).

2. Attorney and Client O57

Summary judgment orders in attor-ney discipline appeals are governed by tra-ditional summary judgment standards.Vernon’s Ann.Texas Rules Civ.Proc., Rule166a(c).

3. Appeal and Error O852When a trial court’s order granting a

summary judgment does not specify theground or grounds relied on for the ruling,it must be affirmed on appeal if any of thegrounds asserted in the motion are merito-rious. Vernon’s Ann.Texas Rules Civ.Proc., Rule 166a(c).

4. Appeal and Error O852When order granting summary judg-

ment states the grounds relied on, it canbe affirmed only on the specified grounds.Vernon’s Ann.Texas Rules Civ.Proc., Rule166a(c).

5. Appeal and Error O1175(1)When both parties move for summary

judgment on the same issue and when thetrial court grants one motion and deniesthe other, appellate court reviews the evi-dence presented, determines the questionspresented, and renders the judgment thetrial court should have rendered if theappellate court determines that the trialcourt erred. Vernon’s Ann.Texas RulesCiv.Proc., Rule 166a(c).

6. Attorney and Client O117, 137Advance fee of $15,000 charged by

attorney to represent client in divorce pro-ceedings was a prepayment of a fee andnot a true retainer, and thus attorney wasobligated to hold the funds in a trust ac-count until earned; although contract forlegal services stated that the fee was anonrefundable retainer, contract did notstate that the payment compensated attor-

737Tex.CLUCK v. COMMISSION FOR LAWYER DISCIPLINECite as 214 S.W.3d 736 (Tex.App.—Austin 2007)

ney for his availability or lost opportuni-ties, and contract provided that attorney’shourly fee would be billed against the pay-ment. State Bar Rules, V.T.C.A., Govern-ment Code Title 2, Subtitle G App. A, Art.10, § 9, Rules of Prof.Conduct, Rule 1.14.

7. Attorney and Client O44(2)

Attorney’s depositing client’s advancefee payment directly into his operatingaccount, rather than into trust account,violated disciplinary rule requiring a law-yer to hold funds belonging in whole or inpart to client in trust account, even thoughcontract for legal services stated that theadvance fee was nonrefundable, whereclient’s payment was a prepayment of a feeand not a true retainer. State Bar Rules,V.T.C.A., Government Code Title 2, Subti-tle G App. A, Art. 10, § 9, Rules ofProf.Conduct, Rule 1.14(a).

James M. Terry Jr., Lexington, JamesR. Smith, Austin, for appellant.

Linda Acevedo, Office of Chief Disciplin-ary Counsel, State Bar of Texas, SusanKidwell, Locke Liddell & Sapp LLP, Aus-tin, for appellee.

Before Justices PATTERSON,PURYEAR and HENSON.

OPINION

DAVID PURYEAR, Justice.

The State Bar of Texas Commission forLawyer Discipline brought a disciplinaryaction against attorney Tracy Dee Cluck,alleging that he committed professionalmisconduct by violating multiple provisions

of the Texas Disciplinary Rules of Profes-sional Conduct 1 in connection with his rep-resentation of Patricia A. Smith. Bothparties filed motions for summary judg-ment. The trial court denied Cluck’s mo-tion and granted the Commission’s motion,holding that Cluck committed professionalmisconduct by violating each of the rulescited by the Commission. Cluck appeals,arguing that his conduct did not violateany disciplinary rules. We will affirm thejudgment of the district court.

BACKGROUND

Smith approached Cluck in June 2001,looking for an attorney to represent her ina divorce case. Cluck agreed to representSmith and had her sign a contract for legalservices, which states, ‘‘In consideration ofthe legal services rendered on my behalf inthe above matter I agree to pay TRACYD. CLUCK a non-refundable retainer inthe amount of $15,000TTTT’’ Followingthat sentence, a handwritten provision ex-plains, ‘‘Lawyer fees are to be billed at$150 per hour, first against non-refundablefee and then monthly thereafter. Addi-tional non-refundable retainers as request-ed.’’ The contract states that ‘‘no part ofthe legal fee is to be refunded’’ ‘‘should thecase be discontinued, or settled in anyother matter.’’

Smith paid Cluck $15,000 on June 28,2001. Cluck began work on Smith’s di-vorce, including filing the petition and ob-taining service on Smith’s husband. OnJuly 7, Smith asked Cluck to cease actionon her divorce because she wished to rec-oncile with her husband. Because herhusband had already been served, Cluckadvised Smith to leave the action pendingin case she changed her mind; Smith

1. The Texas State Bar promulgates the TexasDisciplinary Rules of Professional Conduct to‘‘define proper conduct for purposes of pro-fessional discipline.’’ Tex. Disciplinary R.

Prof’l Conduct preamble: scope ¶ 10, reprint-ed in Tex. Gov’t Code Ann., tit. 2, subtit. Gapp. A (West 2005) (Tex. State Bar R. art. X,§ 9).

738 Tex. 214 SOUTH WESTERN REPORTER, 3d SERIES

agreed. On July 2, 2002, after receivingnotice that her case was set on the dis-missal docket, Smith contacted Cluckabout resuming work on her divorce.Cluck requested that Smith sign anamendment to their contract, in which sheagreed to pay an additional $5,000 ‘‘non-refundable fee’’ and to increase Cluck’shourly rate to $200 per hour. Smithsigned the amendment and paid Cluck the$5,000, and Cluck resumed work on hercase.

On August 22, 2002, Smith terminatedCluck as her attorney because she wasdissatisfied with the lack of progress madeby Cluck on her case and his lack ofresponsiveness to her phone calls. Sherequested the return of her file, which shepicked up two weeks later. On October10, 2002, Smith wrote a letter to Cluckasking for a detailed accounting and arefund of the $20,000, less reasonable at-torney’s fees and expenses. Cluck repliedon December 4, 2002, explaining that hedid not respond sooner because he was onvacation when Smith’s letter arrived andbecause an electrical storm destroyed hiscomputer and phone systems. He statedthat an itemization of his expenses andtime billed was included in her file and inbills he had previously mailed to her.Cluck advised Smith that he did not be-lieve she was entitled to a refund.

The parties dispute the number of hoursthat Cluck spent working on Smith’s case.The Commission asserts that Cluck’s bill-ing indicates that he worked 11 hours,while Cluck contends he worked 28.5hours. It is undisputed that Cluck ulti-mately collected $20,000 from Smith, whichhe deposited in his operating account, andthat Cluck failed to refund any portion ofthe collected fees to Smith.

Smith filed a complaint with the StateBar of Texas, and the Commission initi-ated this suit, alleging that Cluck commit-

ted professional misconduct by violatingseveral Texas Disciplinary Rules of Profes-sional Conduct. The Commission claimedthat Cluck failed to promptly comply witha reasonable request for information; con-tracted for, charged, and collected an un-conscionable fee; failed to adequately com-municate the basis of his fee; failed to holdfunds belonging in whole or in part to aclient in a trust account; and failed topromptly deliver funds his client was enti-tled to receive and render a full accountingregarding those funds upon the client’srequest. See Tex. Disciplinary R. Prof’lConduct 1.03(a), reprinted in Tex. Gov’tCode Ann., tit. 2, subtit. G app. A (West2005) (Tex. State Bar R. art. X, § 9) (re-quiring prompt compliance with reasonablerequests for information), 1.04(a) (prohibit-ing contracting for, charging, or collectingunconscionable fees), 1.04(c) (mandatingcommunication of basis of lawyer’s fee),1.14(a) (providing that lawyer must holdfunds belonging in whole or in part toclient in trust account), 1.14(b) (requiringprompt delivery of funds that client isentitled to receive and accounting uponrequest).

Cluck and the Commission both filedmotions for summary judgment. The trialcourt denied Cluck’s motion and grantedthe Commission’s motion, finding thatCluck violated all the disciplinary rulescited by the Commission and thus commit-ted professional misconduct. The courtimposed a twenty-four-month fully probat-ed suspension from the practice of law onCluck and ordered him to pay court costsand restitution to Smith in the amount of$15,000. Cluck appeals, contending thathe did not violate the disciplinary rules.

DISCUSSION

Cluck raises three issues on appeal.First, he argues that the fee he chargedSmith was not unconscionable. Second,

739Tex.CLUCK v. COMMISSION FOR LAWYER DISCIPLINECite as 214 S.W.3d 736 (Tex.App.—Austin 2007)

Cluck asserts that, because the fee was notunconscionable, he did not violate the rulesregarding refunding unearned fees, hold-ing funds in a trust account, and failing toadequately communicate the basis of thefee. Finally, Cluck insists that he prompt-ly complied with the reasonable requestfor information under the circumstances.Thus, he argues that the trial court erredby holding that Cluck committed profes-sional misconduct and granting summaryjudgment in favor of the Commission.

[1–5] The violation of one disciplinaryrule is sufficient to support a finding ofprofessional misconduct. See Tex.R. Disci-plinary P. 1.06(V)(1), reprinted in Tex.Gov’t Code Ann., tit. 2, subtit. G app. A–1(West 2005) (defining ‘‘Professional Mis-conduct’’ to include ‘‘[a]cts or omissions byan attorney TTT that violate one or more ofthe Texas Disciplinary Rules of Profes-sional Conduct’’). Summary judgment or-ders in attorney discipline appeals are gov-erned by traditional summary judgmentstandards. See Fry v. Commission forLawyer Discipline, 979 S.W.2d 331, 333–34(Tex.App.-Houston [14th Dist.] 1998, pet.denied). When a trial court’s order grant-ing a summary judgment does not specifythe ground or grounds relied on for theruling, it must be affirmed on appeal if anyof the grounds asserted in the motion aremeritorious. State Farm Fire & Cas. Co.v. S.S., 858 S.W.2d 374, 380 (Tex.1993).When the order states the grounds reliedon, it can be affirmed only on the specifiedgrounds. Id. Here, because the ordergranting summary judgment states thatthe trial court relied on every ground al-leged by the Commission and because eachground alone is sufficient to support afinding of professional misconduct, wemust affirm the district court’s summaryjudgment if we find that no genuine issueof material fact exists regarding Cluck’sviolation of at least one disciplinary rule

and that the Commission was entitled tojudgment as a matter of law. See Tex.R.Civ. P. 166a(c). We review the summaryjudgment de novo, take as true all evi-dence favorable to the nonmovant, and in-dulge every reasonable inference and re-solve any doubts in the nonmovant’s favor.Valence Operating Co. v. Dorsett, 164S.W.3d 656, 661 (Tex.2005). When bothparties move for summary judgment onthe same issue and when the trial courtgrants one motion and denies the other,we review the evidence presented, deter-mine the questions presented, and renderthe judgment the trial court should haverendered if we determine that it erred.Id.

[6] We first address the trial court’sfinding that Cluck violated rule 1.14(a) byfailing to hold the $20,000 paid by Smith ina trust account. See Tex. Disciplinary R.Prof’l Conduct 1.14(a) (‘‘A lawyer shallhold funds TTT belonging in whole or inpart to clients TTTT in a separate account,designated as a ‘trust’ or ‘escrow’ ac-countTTTT’’). Cluck argues that the feepaid by Smith was a nonrefundable retain-er that was earned at the time it wasreceived and that he was not obligated tohold the funds in a trust account becausethey did not belong in whole or in part toSmith. The Commission argues that, de-spite the contractual language, the fee wasneither nonrefundable nor a retainer butwas instead an advance fee that shouldhave been held in a trust account.

An opinion by the Texas Committee onProfessional Ethics discusses the differ-ence between a retainer and an advancefee. See Tex. Comm. on Prof’l Ethics, Op.431, 49 Tex. B.J. 1084 (1986). The opinionexplains that a true retainer ‘‘is not apayment for services. It is an advance feeto secure a lawyer’s services, and remun-erate him for loss of the opportunity toaccept other employment.’’ Id. The opin-

740 Tex. 214 SOUTH WESTERN REPORTER, 3d SERIES

ion goes on to state that ‘‘[i]f the lawyercan substantiate that other employmentwill probably be lost by obligating himselfto represent the client, then the retainerfee should be deemed earned at the mo-ment it is received.’’ Id. If a fee is notpaid to secure the lawyer’s availability andto compensate him for lost opportunities,then it is a prepayment for services andnot a true retainer. Id. ‘‘A fee is notearned simply because it is designated asnon-refundable. If the (true) retainer isnot excessive, it will be deemed earned atthe time it is received, and may be deposit-ed in the attorney’s account.’’ Id. Howev-er, money that constitutes the prepaymentof a fee belongs to the client until theservices are rendered and must be held ina trust account. Tex. Disciplinary R.Prof’l Conduct 1.14 cmt. 2.

We are convinced that no genuine issueof material fact exists regarding whetherthe fees charged by Cluck were true re-tainers and, thus, whether Cluck was obli-gated to hold the funds in a trust account.First, the contract for legal services doesnot state that the $15,000 payment com-pensated Cluck for his availability or lostopportunities; instead, it states thatCluck’s hourly fee will be billed against it.Second, the $5,000 additional payment re-quested by Cluck in 2002 makes clear thatthe $15,000 paid in 2001 did not constitutea true retainer; as the trial court noted inits judgment, ‘‘if the first $15,000 secured[Cluck]’s availability, it follows that heshould not charge another ‘retainer’ to re-sume work on the divorce. He was al-ready ‘retained’ for the purposes of repre-senting Smith in the matter.’’

[7] Finally, Cluck concedes in his briefthat the fees did not represent a trueretainer. However, he argues that he didnot violate any disciplinary rules by depos-iting the money in his operating accountbecause the contract states that the fees

are nonrefundable. We disagree. ‘‘A feeis not earned simply because it is designat-ed as non-refundable.’’ Tex. Comm. onProf’l Ethics, Op. 431, 49 Tex. B.J. 1084(1986). Advance fee payments must beheld in a trust account until they areearned. Tex. Disciplinary R. Prof’l Con-duct 1.14 cmt. 2 (providing that trust ac-count must be utilized ‘‘[w]hen a lawyerreceives from a client monies that consti-tute a prepayment of a fee and that be-longs to the client until the services arerendered’’ and that ‘‘[a]fter advising theclient that the service has been renderedand the fee earned, and in the absence of adispute, the lawyer may withdraw the fundfrom the separate account’’); Tex. Comm.on Prof’l Ethics, Op. 431, 49 Tex. B.J. 1084(1986); see also Tex. Disciplinary R. Prof’lConduct 1.15(d) (‘‘Upon termination of rep-resentation, a lawyer shall take steps tothe extent reasonably practicable to pro-tect a client’s interests, such as TTT refund-ing any advance payments of fee that hasnot been earned.’’).

Cluck violated rule 1.14(a) because hedeposited an advance fee payment, whichbelonged, at least in part, to Smith, direct-ly into his operating account. Accordingly,we must affirm the trial court’s summaryjudgment holding that Cluck committedprofessional misconduct because he violat-ed a disciplinary rule. Because Cluck’sother points of error address alternategrounds for the trial court’s holding thatCluck committed professional misconductand because we have already upheld thesummary judgment on one ground raisedby the trial court, we do not reach hisother arguments.

CONCLUSION

Having held that no genuine issue ofmaterial fact exists regarding whetherCluck committed professional misconduct,

741Tex.GOODSON v. CASTELLANOSCite as 214 S.W.3d 741 (Tex.App.—Austin 2007)

we affirm the district court’s summaryjudgment.

,

Elizabeth GOODSON, Appellant,

v.

Adelina CASTELLANOS, Appellee.

No. 03–04–00335–CV.

Court of Appeals of Texas,Austin.

Jan. 19, 2007.

Rehearing Overruled March 1, 2007.

Background: Former partner, who hadadopted child with her former girlfriend,filed suit affecting parent-child relation-ship. The District Court, Williamson Coun-ty, 277th Judicial District, Ken Anderson,J., issued order on jury verdict appointingformer partner as child’s sole managingconservator, appointing former girlfriendas possessory conservator of child, andrequiring former girlfriend to pay childsupport and attorney fees. Former girl-friend appealed.

Holdings: The Court of Appeals, DavidPuryear, J., held that:

(1) adoption decree was not subject to col-lateral attack on ground that it wasvoid;

(2) former girlfriend was precluded fromattacking validity of adoption underadoption statute;

(3) doctrine of fundamental error did notapply such as would permit formergirlfriend to attack adoption decree onbasis that it violated public interest ofstate that child have at most one par-ent of each sex;

(4) probative value of evidence that formerpartner’s brother was a sex offenderand that he had had contact with childwas substantially outweighed by poten-tial for unfair prejudice, such that evi-dence was inadmissible;

(5) trial court did not abuse its discretionin issuing final order requiring formergirlfriend to pay $788.00 per month inchild support; and

(6) order requiring former girlfriend topay attorney fees of $5,035.50 to ami-cus attorney was not supported by theevidence.

Affirmed in part; reversed and remandedin part.

1. Courts O89

Attorney general opinions, althoughpersuasive, are not binding authority.

2. Courts O155

Texas district courts are courts ofgeneral jurisdiction.

3. Courts O35

Unless the legislature or congress hasprovided that a claim be heard elsewhere,district courts are presumed to have sub-ject matter jurisdiction over a claim.

4. Adoption O16

Adoption decree issued to same-sexcouple was not subject to collateral attackby former girlfriend on grounds that it wasvoid, in suit affecting parent-child relation-ship commenced by girlfriend’s formerpartner; even assuming district courterred in issuing decree, error was basedon erroneous construction of statutes, suchthat judgment would be based on an erro-neous holding of substantive law, but sucherrors did not deprive district court ofsubject matter jurisdiction over adoptionor render decree void. V.T.C.A., FamilyCode §§ 101.024, 101.025; § 162.001