Amended rule targets $1.25B ‘verdict’ in ad
San Antonio personal injury lawyer Thomas J. Henry can no longer advertise a $1.25 billion “verdict/judgment” that he secured for an alleged sexual assault victim without disclosing that the client didn’t actually get anything.
In response to a Henry billboard trumpeting the verdict, the Texas Supreme Court recently amended a rule on lawyers’ advertising. It now requires attorneys who obtained a verdict but never collected anything to disclose that fact.
Last fall, Henry began advertising the $1.25 billion result for an alleged sexual assault victim on a billboard just north of downtown. The plaintiff subsequently told the San Antonio Expressnews that he never got so much as a penny from the judgment, though that was omitted from the billboard.
The verdict was actually a 2018 default judgment, meaning the case wasn’t adjudicated on its merits because neither the defendant nor his lawyer appeared at trial.
Henry and attorney Travis Venable, who both represented the plaintiff, didn’t respond to a request for comment Monday.
Henry has replaced the advertisement on the billboard with another promoting a $50 million “recent result.” The client, who suffered a brain injury in a trucking accident, pocketed $27 million, according to the billboard.
The Supreme Court issued a Jan. 31 order amending a rule dealing with “communications concerning a lawyer’s services” after receiving a recommendation from the State Bar of Texas’ Committee on Disciplinary Rules and Referenda.
The committee took up the matter in early January after Vincent R. Johnson, a member and
professor at St. Mary’s University School of Law, read about the billboard in an Express-news article in December.
“If this goes uncorrected, then there will just be a continuing permanent problem with misleadingly advertising default judgments,” Johnson told the committee at its Jan. 5 meeting. He made a motion to recommend that the state Supreme Court modify the rule. The committee unanimously approved the motion.
Committee Chairman Lewis Kinard then sent a Jan. 11 letter to Chief Justice Nathan L. Hecht and Justice Jane Bland recommending that the Supreme Court adopt the proposed amendment.
This “proposed amendment … would clarify that an advertisement that claims a verdict for $1.25 billion must also state in the advertisement, with equal or greater prominence, that $0 was received by the client,” Kinard wrote.
In an interview Monday, Johnson said none of the committee members had ever seen a lawyer advertise a default judgment. “It was certainly not in the spirit of the advertising rules,” Johnson said of Henry’s billboard. “I thought there was a serious risk that persons reading the billboard would either be misled or the exploitation of the rules would create a bad impression for the legal profession.”
Johnson has taught at St. Mary’s since 1982 and had Henry as a student. Johnson remembered Henry, who received his law degree in 1988, as an “able student.”
Kinard’s letter said the committee believes the billboard advertisement is a “false and misleading communication.”
That contradicts comments by Gene Major, director of the State Bar’s Attorney Compliance Division in the Advertising Review Department, who told the Express-news in December that the billboard was neither false nor misleading.
“Mr. Henry provided us with the order and final judgment on this case,” Major said. “It is a factual statement that he did get the judgment. The dollar amount was verified. So he complied with the rule.”
Henry’s client, who was 6 at time of the alleged assault and is now 22, found the billboard “upsetting.” The Express-news is not identifying him because the case involved the alleged sexual assault of a minor.
After Henry obtained the default judgment, the plaintiff — identified in the civil lawsuit as “John Doe” — said the lawyer urged him to appear in a commercial or otherwise publicize the case. Doe declined.
“They wanted me to do stuff for them that I didn’t want to do,” he said in December. “Now they’re trying to turn around to make it to their benefit. It’s just not right.”
Henry’s firm apparently has never done anything to enforce the judgment.
After winning a monetary award, lawyers commonly file an abstract of judgment, which creates a lien on certain types of property owned by a defendant. Kinard’s letter to the Supreme Court justices said Henry had not filed an abstract of judgment and that the defendant had paid nothing to the plaintiff.
Henry waited almost three years to advertise the judgment. On July 1, changes to the State Bar’s rules on lawyer advertising that took effect appear to have opened the door for him to put up the billboard. Attorneys no longer were required to disclose in their advertisements the “net to client” from verdicts.
Lawyers should use “candor and disclosure” not only with their own clients but potential clients, Houston lawyer Dale Jefferson said. His practice focuses on legal ethics, and he advises lawyers on how to comply with rules governing their conduct.
“In a situation like this, if you don’t disclose the entire facts, such as a default judgment, it can lead to a misleading impression that a client has actually garnered a large recovery when, in fact, there’s been no recovery at all,” Jefferson said.