The right to confront one’s accusers in trial is a fundamental principle of our judicial system. Or, is it? One lawyer learned that confronting one’s accusers is not so fundamental, after all.
Ernesto Martinez, Jr. was accused of double billing. That is, he was accused of billing two different sets of clients for the same 17.5 hours of work in one day. So, he was in effect boiling for 35 hours of work in one normal 24 hour day. At least according to Wikipedia, there are only 24 hours in an average day…..
Mr. Martinez was found guilty of unethical billing practices. The matter went to arbitration. The arbitrator, Phyllis Speedlin, ordered him to pay back $633,000 to his former clients. The clients had hired Mr. Martinez regarding some failed investments on the South side near the Toyota plant. Mr. Martinez was found guilty of taking hours from a junior lawyer and billing them at his higher rate per hour. He was found guilty of many violations of lawyer ethics. See San Antonio Express News report.
But, as Mr. Martinez’ lawyer, Jesse Castillo, pointed out, was the process fair? Arbitration allows for no appeals. So, there is no process by which the arbitral hearing can be tested or examined. That one hearing is all a person gets. Mr. Castillo faults the system because the arbitrator did not allow him to cross examine the clients who alleged these violations. Mr. Castillo says the former clients signed “copy cat” affidavits. Those affidavits were admitted into evidence, apparently instead of live testimony from the clients. “Copy cat” affidavits refers to affidavits that contain the same language. If they are all worded the same, that similarity suggests someone other than the witness drafted the statements. Those sorts of affidavits are questionable.
Some cases may not require testimony from the clients themselves. This case sounds like it relied more on an audit of Mr. Martinez’ invoices. That may have been the critical evidence. But, still, anytime witness statements are admitted instead of live witnesses, we have to question the process.
Or, as Jesse Castillo says, he and the lawyers he knows are removing arbitration provisions form their future client agreements. At least courts will follow the rules of civil procedure, he explained. That sounds like wise advice to me. Arbitration is a private remedy with no appeal and no oversight.