Opinion
03-22-00519-CV
05-31-2024
Venky Venkatraman, Appellant v. Texas Board of Law Examiners, Appellee
FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-22-000521, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING
Before Justices Baker, Kelly, and Smith
MEMORANDUM OPINION
Thomas J. Baker, Justice
Venky Venkatraman appeals from the trial court's judgment affirming an order of the Texas Board of Law Examiners. The issue on appeal is whether the Board's order, determining that Venkatraman lacks the present good moral character to be admitted to practice law in Texas, is supported by substantial evidence. We find that it is, and we will affirm the trial court's judgment.
The facts recited in this background section derive from the unchallenged findings of fact in the Board's order.
Venkatraman received a JD degree from Mitchell Hamline School of Law in St. Paul, Minnesota, in August 2018. In February 2020, he took the Uniform Bar Examination (UBE) in the District of Columbia and received a score of 270 or higher. In May 2020, he filed an application for admission to the Texas Bar by transfer of his UBE score. On June 14, 2020, Venkatraman applied for admission to the Alaska Bar, but he later withdrew that application. According to the Admissions Manager for the Alaska Bar Association, "the Bar has discretion to delay [Venkatraman's] application until the completion of the character and fitness investigation in other states [and his] application will be deferred until completion of the character and fitness investigation in the other states." On March 3, 2021, Venkatraman was admitted to practice law in the State of New York. On March 23, 2021, he was admitted to practice before the United States Patent and Trademark Office (USPTO), but he did not timely disclose this on his Texas application.
On March 22, 2021, Board staff concluded that it could not determine that Venkatraman possessed the present good moral character required by Rule 4 of the Supreme Court of Texas Rules Governing Admission to the Bar of Texas (RGAB) and sent Venkatraman an adverse preliminary determination letter. Venkatraman requested a hearing per Rule 15 of the RGAB, and a hearing was set for October 15, 2021. Meanwhile, Venkatraman applied for but was declined admission to the Bars of two other jurisdictions for, among other reasons, his lack of candor in the application process.
On September 27, 2021, Board staff received new information relevant to Venkatraman's character and fitness and on October 4, 2021, notified him in writing that his character and fitness investigation was reopened for ninety days per RGAB Rule 10 and canceled the hearing. On December 8, 2021, after completing its investigation, Board staff again concluded that it could not determine that Venkatraman possessed the present good moral character required by RGAB Rule 4 and sent him a superseding adverse preliminary determination letter, to which he submitted a partial stipulation.
On January 13, 2022, a three-member panel (Panel) of the Board heard the matter and considered whether Venkatraman possesses the present good moral character required for admission to the practice of law in Texas. See RGAB R. 4(b) (explaining that purpose of "present good moral character" requirement is to exclude from admission persons possessing character traits-such as "lack of trustworthiness"-that are likely to result in client injury, obstruction of justice, or violation of Disciplinary Rules). Venkatraman appeared pro se at the hearing and testified as did four other witnesses on his behalf. A Board attorney represented the Board staff. The Panel admitted all of the Board staffs forty-eight exhibits over Venkatraman's objections to some as well as Venkatraman's fifteen exhibits without objection. The Board additionally ordered that Venkatraman's eleven-page cover letter to his application be included as an exhibit.
On April 11, 2022, the Board issued an order in which it made findings of fact and conclusions of law and determined that Venkatraman "does not possess the present good moral character required for admission to the practice of law in Texas." The order contained forty-three findings of fact, including that Venkatraman failed to make required disclosures in his application; interacted unprofessionally, uncivilly, and without candor with the Board and opposing litigation parties; was disciplined for plagiarism in law school; maintained legal advertisements that were misleading; and failed to cooperate with Board staffs requests for additional information regarding his application. The order recited that Venkatraman may file a petition for redetermination no earlier than eighteen months from the hearing date and that, should he properly file a petition for redetermination, the Panel's determination "will be guided by evidence presented in a redetermination hearing as to [his] requisite good moral character and fitness at that time." Such evidence should demonstrate any curative measures taken by Venkatraman, including:
• satisfactory resolution of any and all judgments against him, including child support arrearage amounts and resolution of child support litigation;
• completion of 20 hours of CLE courses focused on candor, moral character of being a lawyer, civility, lawyer advertising, and appellate ethics;
• demonstration of candor and cooperation with Board staff upon [his] petition for redetermination; [and]
• timely, diligent, and professional compliance with all Board rules and all requests from Board staff in connection with Venkatraman's petition for redetermination.
Venkatraman filed a petition for judicial review of the Board's order in district court and, upon that court's affirmance of the order, perfected this appeal.
DISCUSSION
Non-Compliance with Texas Rules of Appellate Procedure
We first address the Board's assertion that Venkatraman's brief does not comply with the briefing requirements in the Texas Rules of Appellate Procedure. See Tex. R. App. P. 38.1. Rule 38.1(i) provides that a brief "must contain a clear and concise argument for the contentions made, with appropriate citation to authorities and to the record." Id. In his briefs "argument" section, rather than providing any argument or citations to the record or authority to support his sole appellate issue (in which he contends that the Board "abused its discretion" in denying him a Texas law license), Venkatraman merely adopts and incorporates by reference the brief and reply brief he filed in the trial court, attaching those briefs to his appendix. Cf. id. This constitutes improper briefing that does not comply with Rule 38.1, and some of our sister courts have held such incorporation of other filings by reference to be improper. See, e.g., Young v. Neatherlin, 102 S.W.3d 415, 423 (Tex. App-Houston [14th Dist] 2003, no pet.) (refusing to address arguments made in contemporaneously filed mandamus petition that appellant attempted to incorporate by reference into appellate brief); Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 524 (Tex. App-San Antonio 1996, writ denied) (addressing merits of appellate issue despite acknowledging that briefs statement that appellant "adopts the arguments and authorities set forth in all points of error" did not comply with Rule 38.1).
Nonetheless, in the interest of reaching the merits of Venkatraman's appeal and of liberally construing pro se briefs, see Rogers v. Rogers, No. 03-22-00792-CV, 2023 WL 7135283, at *5 (Tex. App-Austin Oct. 31, 2023, no pet.) (mem. op.), and because Venkatraman specifically identified and attached to his appendix the two briefs he intended to incorporate by reference-rather than making an overly broad and vague reference to "all arguments raised in previous filings in this case," cf. Ex parte Bornhop, 654 S.W.3d 195, 197 n.3 (Tex. App-Austin 2022, no pet.)-we proceed with consideration of the arguments he made below in those trial briefs. However, such practice does not comply with the Texas Rules of Appellate Procedure and is disfavored.
Substantial-evidence review
The Board determines the eligibility of candidates for a license to practice law in Texas. See Tex. Gov't Code §§ 82.001, .004. The Texas Supreme Court promulgates, and the Board administers and interprets, the RGAB. Board of Law Exam'rs v. Stevens, 868 S.W.2d 773, 776 (Tex. 1994); see also Tex. Gov't Code § 82.022. Among the criteria assessed are the applicant's moral character and fitness to practice law. Tex. Gov't Code § 82.004(c); see also RGAB R. 2(a)(3), 4.
When the Board makes a preliminary determination that an applicant lacks the requisite present good moral character and fitness, the applicant can request a hearing to challenge that determination. RGAB R. 8, 15. Then, "[w]ithin a reasonable period of time after the decision is made, the Board shall furnish to the Applicant or Declarant a written order setting forth the decision of the Board." Id. R. 15(i). An applicant who disagrees with the Board's decision may seek judicial review in a Travis County district court. Id. R. 15(k)(1); see Caldwell v. Texas Bd. of Law Exam'rs, No. 03-21-00125-CV, 2023 WL 2976580, at *1 (Tex. App.- Austin Apr. 18, 2023, pet. denied) (mem. op.). Although the Administrative Procedure Act (APA) does not govern Board procedure, the APA sections addressing the scope of judicial review under the substantial-evidence rule are instructive, Stevens, 868 S.W.2d at 777, and we review the Board's decision under the substantial-evidence standard, see Kastner v. Texas Bd. of Law Exam'rs, No. 03-10-00167-CV, 2011 WL 3890398, at *2 (Tex. App.-Austin Aug. 31, 2011, pet. denied) (mem. op.). The applicant complaining of the Board's decision has the burden of showing a lack of substantial evidence in the record, and we presume that the Board's findings, inferences, conclusions, and decisions are supported by substantial evidence. See id. at *2.
In his brief, Venkatraman mistakenly identifies the standard of review as either de novo or abuse of discretion.
Venkatraman's arguments
Venkatraman first argues that the Panel exhibited "animosity" and "bias" against him in reaching its determination about his eligibility, as reflected in the audio recording and transcript of its open-session vote. He cites portions of the deliberations in which Panel members discuss curative measures they would like Venkatraman to take to demonstrate his good moral character and fitness should he seek Bar admission in the future. In those discussions, the Panel members discuss whether they should include a measure requiring him to treat Board staff with "civility," but the Panel ultimately decides not to include that measure, instead requiring "candor and cooperation" with Board staff and including "civility" as one of the topics to be addressed, among others, in the requisite CLEs. Venkatraman urges that such discussion exhibits bias and animosity towards him, but we do not construe the cited portions of the deliberations that way. Furthermore, to the extent that the Panel was discussing his lack of candor and civility towards Board staff, the evidentiary record documents instances that the Board reasonably could have found that Venkatraman was unprofessional and uncivil-as well as questioning his candor-in his dealings with adversaries and Board staff. It is understandable, therefore, that such conduct was discussed during the Panel's voting session. Thus, we cannot conclude on this record that Venkatraman has shown that the Panel in deliberating this matter exhibited bias or animosity towards him.
By way of example, one of the statements made by a Panel member and challenged by Venkatraman is, "I'm a little uncomfortable with that, saying civility and candor towards B[oard] staff." Venkatraman reads much more into that statement than the words reasonably imply, contending that the statement actually means, "I don't want our animosity towards Plaintiff and bias in favor of the B[oard] staff to go on the record."
Venkatraman further asserts that the Panel was "colluding" against him when deliberating about his application, again as purportedly reflected in the vote audio and transcript. In further discussing curative measures, a Panel member states that he does not want Venkatraman to "say that we're colluding against him" and "let's not fuel the fire" when deliberating how and whether to include measures pertaining to civility. But the record contains ample evidence to support the Panel's concern that Venkatraman might accuse the Board or its staff of collusion in that he had made similar, prior allegations, including that Board staff was attempting to make him "look bad," would "misuse" information from his New York application, and would find fault "even where none exists." Our review of the deliberations does not support Venkatraman's contention that the Board was colluding against him.
Venkatraman next argues that the Board "virtually delegated to staff its authority to make a final determination" about his requisite good moral character and fitness. He supports this assertion by pointing out that the Board's final order "is nearly identical to the [Board] staffs Preliminary Determination Letter." The fact that the Board's order reads substantially the same as its staffs Preliminary Determination Letter does not constitute evidence of the Board's delegating its statutory duty to make a final determination. Cf. Tex. Gov't Code §§ 82.004 (charging Board with duty of determining eligibility of candidates to practice law in Texas), .028 (granting Board authority to investigate moral character and fitness of applicants and to contract with public or private entities for investigative services). Aside from this similarity, Venkatraman has cited no evidence supporting this assertion of improper delegation, and we accordingly do not further consider it.
Venkatraman next challenges specific fact findings in the Board's order. The first group of challenged findings-14, 16, 17, and 18-pertain to a civil proceeding that Venkatraman initiated in 2020 against a fellow member of a private Facebook group to which Venkatraman also belonged. It is undisputed that on September 2, 2020, Venkatraman filed a "Rule 202 Petition to Take Deposition Duces Tecum" in Dallas County district court seeking to take that fellow member's deposition for purposes of "investigating potential claims for invasion of privacy, defamation, and intentional infliction of emotional distress." See Tex. R. Civ. P. 202.1-.5. Finding 18 states that Venkatraman failed to disclose to the Board his Rule 202 petition (despite the application's requirement to list any "civil proceeding" to which he was a party), initially refused to update his application to include the petition when asked to do so by Board staff, and eventually amended his application to disclose it, in addition to admitting at the hearing that he should have disclosed it initially. The other challenged findings reflect that Venkatraman posted the fellow member's address and made disparaging statements about her in the Facebook group and sent multiple disparaging emails to her work supervisor. Based on these findings, the Board further found that Venkatraman's statements in connection with the matter "demonstrate his lack of civility" and "willingness to use the legal process to harass." The record contains evidence to support each of these findings, including copies of the Facebook postings, the court filings, and Venkatraman's hearing testimony. We conclude that findings 14, 16, 17, and 18 are supported by substantial evidence.
Venkatraman contends that, although the Board's finding 17 reflects that his Facebook statements were "published," they were not in fact "published" because the Facebook group was "private" and, in any event, the statements were "obtained illicitly." He does not explain or offer any argument or evidence to support his claim that the statements were obtained illicitly, and- even though this one finding is not dispositive, and sufficient other findings and evidence support the Board's order-the term "publish," especially used in the legal context, includes communication to just one third party or to a group comprising less than the entire general public. See Publish, Black's Law Dictionary (11th ed. 2019); Publish, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/publish (last visited May 28, 2024).
Venkatraman next challenges finding 20, which states that during his enrollment in law school he was disciplined for plagiarism and lists three instances when he was notified by professors or school officials that his conduct constituted plagiarism and violated the school's code of conduct. Venkatraman cites his hearing testimony in which he claims that the plagiarism incidents were unintentional, honest mistakes and that the dean nonetheless recommended him for admission to the practice of law. Notwithstanding such testimony, the record contains evidence in the form of the law-school officials' correspondence and files supporting finding 20, and we therefore conclude that it is supported by substantial evidence.
The next group of challenged findings-23 and 26-appear under a heading in the order that reads "Zenith Legal, False Advertisement, and Unauthorized Practice of Law." The challenged portion of finding 23 states that Venkatraman's website-Zenith Mediators and Advisers-represented that he was "extremely familiar with Texas Family Law having litigated a case from Trial Court to the 5th Court of Appeals to the Texas Supreme Court," when he had only prosecuted his own divorce and child-custody case. Evidence in the form of Venkatraman's testimony-confirming that the only family-law case he had litigated was his own, in which he appeared pro se-and copies of pages from his website support this finding. The challenged portion of finding 26 reads, "Venkatraman's testimony in response to the Panel's inquiries [about his website, business card, and legal advertising] demonstrated his lack of understanding of the applicable rules governing such communications concerning a lawyer's services." We have reviewed the cited testimony supporting this finding, and we conclude that the finding is supported by substantial evidence.
In his testimony, Venkatraman repeatedly insisted that the statements he made on his website and related materials-in isolation-were literally true, and that "anybody who's got half a brain" would be able to determine that, despite his representations about litigating family-law cases in Texas, he was licensed only in New York. The Board, however, reiterated that the more important concern in this context was whether his advertising materials were "misleading to the average person." See Tex. Disc. R. Prof. Conduct 7.01(a) (establishing standard for evaluating whether lawyer's communication is false or misleading); Board of Law Exam'rs v. Stevens, 868 S.W.2d 773, 777 (Tex. 1994) (noting that Board should be guided in its character and fitness determinations by Texas Disciplinary Rules of Professional Conduct).
The next set of findings that Venkatraman challenges-33 and 37-concerns two other jurisdictions' (the District of Columbia and Ohio) declining to certify him for admission to their legal bars. The findings list the factors upon which those jurisdictions' decisions were based. Rather than challenging whether substantial evidence supports these findings, Venkatraman argues that the issues related to these other jurisdictions' decisions "were not discussed in detail at the hearing" and that, in any event, those decisions are irrelevant to the Board's determination. However, those other jurisdictions' decisions constitute evidence that was before the Board, Venkatraman had the opportunity to explain or minimize those decisions' import, and-as directly reflected in the Board's applicable guidelines (a copy of which was admitted into evidence)-those decisions are explicitly relevant to the Board's determination.We conclude that these challenged findings are supported by substantial evidence.
The applicable guidelines provide, "Finding of Neglect or Violation of Other Professional Duties-Examples include denial of admission to the Bar in another jurisdiction based on a finding of misconduct or lack of good character or fitness."
The last set of findings that Venkatraman challenges are 40, 42, and 43, appearing under the order's heading "Failure to Cooperate in Texas." Finding 40 states that when Board staff requested Venkatraman to provide them a copy of his application for admission to the New York Bar, he asked for clarification of the purpose of the request and continued to ask for clarification even after the purpose was communicated to him. Thereafter, he communicated the following to Board staff about the request: "I don't believe if you, say, ask me to take off my clothes and send you nude photos of myself to get a law license in Texas I need to comply with such a demand." The Board found that these and other interactions "demonstrated a lack of civility and candor in dealing with Board staff." Similarly, finding 43 states that Venkatraman's testimony during the hearing "was evasive and lacked candor." Finding 42 states that he "refused to provide the Board a copy of his application to practice law in New York," and Venkatraman's own testimony supports this finding. The Board was entitled to make its own credibility and character determinations based on Venkatraman's testimony and interactions during Board staff's investigation of his application. By challenging these findings, Venkatraman merely seeks another tribunal's evaluation of the evidence, which is not our province. See Firemen's & Policemen's Civ. Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984).
The stated purpose was to review the disclosures that he had made on his New York application.
Venkatraman lastly contends that the curative measures the Board imposed make "no sense" and are "absurd." With respect to the eighteen-month waiting period before he may reapply, he argues that by then he "will be close to 66 years old" and will "DEFINITELY not" reapply at that age only to "potentially spend another 2 years being subjected to all kinds of intrusive investigations" by Board staff. With respect to the curative measures requiring him to complete twenty hours of CLE and to demonstrate candor and cooperation with Board staff and exhibit "timely, diligent, and professional compliance with all Board rules and all requests from Board staff" in connection with a redetermination petition, he merely re-urges his arguments that the record lacks evidence to support the Board's findings concerning his lack of present good moral character and his failure to employ civility, professionalism, and candor in his dealings with Board staff. We need not revisit those findings.
With respect to the curative measure pertaining to resolution of any and all judgments against him, including a child-support arrearage, and of a pending appeal that he filed to contest a child-support order-which he testified was on submission before one of our sister courts of appeals-Venkatraman contends the measure is "absurd" because such litigation is not entirely within his control and because his ex-wife could "start fresh litigation" so as to have "veto power" over his admission to the Bar. However, he points to nothing prohibiting him from explaining to the Board the circumstances surrounding any still-pending or new litigation if and when he applies for redetermination. Furthermore, the curative measures are not expressed as prerequisites for admission to the Bar; instead, the Board's order states that "the panel's determination [on a future petition for redetermination] will be guided by evidence presented in a redetermination hearing as to Venkatraman's requisite good moral character and fitness at that time. Such evidence should demonstrate any curative measures taken by Venkatraman, including [e.g., the resolution of child-support litigation]." We cannot conclude that the Board's inclusion of these curative measures was "absurd," arbitrary, unreasonable, or unsupported by substantial evidence.
The record reflects that at the time of the hearing, Venkatraman owed a child-support arrearage of $34,862.39, a $20,000 judgment to his ex-wife's counsel for attorney's fees, and court costs for at least three appellate matters and one trial-court matter involving his divorce and child-support litigation.
As the Board points out in its brief, the child-support appeal referenced in the hearing has concluded. See In re S.V., No. 05-19-00548-CV, 2022 WL 696815, at *1 & n.1 (Tex. App.-Dallas Mar. 8, 2022, pet. denied) (mem. op.) (affirming child-support order and noting that Venkatraman was not challenging in his appeal that portion of subject trial-court order confirming his child-support arrearage).
In sum, the Board heard evidence about how Venkatraman refused to provide Board staff with a copy of his application for admission to the New York Bar and has continued to refuse to provide it. Evidence showed that he had been denied admission to the bars of two other jurisdictions in large part for his lack of candor. Evidence showed that he did not disclose to Board staff that he had been a party to a civil proceeding-a Rule 202 petition that he filed- until after the Board discovered it, and he insisted at the hearing that he failed to report it simply due to his mistaken interpretation of the term "civil proceeding." He provided evasive testimony and responses to the Panel's questions at the hearing and to the requests of Board staff throughout this matter. Evidence showed that he engaged in uncivil and unprofessional conduct and communications with Board staff and a litigation opponent and that he was disciplined for plagiarism and violation of his law school's code of conduct. His legal website and advertising materials were reasonably likely to mislead a reasonable person. Finally, he had accrued a total of over $55,000 in unpaid child support, court costs, and a judgment.
By his appeal, Venkatraman is essentially asking this Court to reweigh the evidence and make different factual findings from those made by the Board. However, "[r]esolution of factual conflicts and ambiguities is the province of the administrative body and it is the aim of the substantial evidence rule to protect that function. The reviewing court is concerned only with the reasonableness of the administrative order, not its correctness." Brinkmeyer, 662 S.W.2d at 956; accord Scally v. Texas State Bd. of Med. Exam'rs, 351 S.W.3d 434, 452 (Tex. App.-Austin 2011, pet. denied). When the substantial-evidence rule applies, as it does here, the reviewing court is tasked with determining whether the agency's factual findings are reasonable considering the evidence from which they were inferred, not whether the agency reached the correct conclusion or the only possible conclusion. See Froemming v. Texas State Bd. of Dental Exam'rs, 380 S.W.3d 787, 791-92 (Tex. App.-Austin 2012, no pet.). Indeed, the evidence may preponderate against the agency's decision and still amount to substantial evidence. See Texas Health Facilities Comm'n v. Charter Med.-Dall., Inc., 665 S.W.2d 446, 452 (Tex. 1984). Furthermore, substantial-evidence review does not allow a court to substitute its judgment for that of the agency on the weight of the evidence on matters committed to agency discretion. Froemming, 380 S.W.3d at 791. If reasonable minds could have reached the conclusion reached by the Board on the record presented, the appellate court must uphold the Board's decision. See Kastner, 2011 WL 3890398, at *2.
On this record, we cannot conclude that the Board's findings, conclusions, and decision are not supported by substantial evidence or that reasonable minds could not have reached the conclusions that it reached. In particular, we conclude that there is substantial evidence to support the Board's ultimate conclusion:
There is a rational relationship between Venkatraman's present possession of these traits [i.e., lack of trustworthiness, lack of respect for the Texas system of justice, lack of civility in legal matters and in dealing with agencies of the Supreme Court] and the likelihood that he would cause injury to future clients, obstruct the administration of justice, or violate the Texas Disciplinary Rule[s] of Professional Conduct if he were recommended for a license to practice law in Texas at this time.See RGAB 4(b). We accordingly overrule Venkatraman's arguments and sole issue on appeal.
CONCLUSION
We affirm the trial court's judgment affirming the Board's order.
Affirmed