Affirmed and Memorandum Opinion filed March 14, 2019.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-17-00666-CV

                        JACK ZEEV YETIV, Appellant
                                        V.
           COMMISSION FOR LAWYER DISCIPLINE, Appellee

                   On Appeal from the 152nd District Court
                            Harris County, Texas
                      Trial Court Cause No. 2016-46138

                 MEMORANDUM OPINION

      During the middle of a trial, attorney Jack Yetiv threatened to file a
disciplinary grievance against opposing counsel Bruce Wilkin unless Wilkin told
the trial judge that Wilkin was withdrawing an argument Wilkin had made in court.
The Commission for Lawyer Discipline brought this disciplinary action against
Yetiv for violating Rule 4.04(b)(1) of the Texas Disciplinary Rules of Professional
Conduct, alleging that Yetiv threatened to present disciplinary charges “solely to
gain an advantage in a civil matter.” See Tex. Disciplinary Rules Prof’l Conduct
R. 4.04(b)(1), reprinted in Tex. Gov’t Code, tit. 2, subtit. G, app. A. After a bench
trial, the trial court found that Yetiv violated Rule 4.04(b)(1), suspended Yetiv
from the practice of law for four months, probated the suspension, and ordered
Yetiv to pay attorney’s fees to the State Bar of Texas.

      On appeal, Yetiv contends that (1) the trial court erred by considering
“undisclosed extra-record evidence,” (2) the trial court erred by disregarding the
Commission’s “binding admission” concerning the meaning of the word “solely”
in Rule 404(b)(1), and (3) the evidence is legally and factually insufficient to
support the trial court’s finding that Yetiv threatened a disciplinary charge solely to
gain an advantage in a civil matter.

      We affirm.

                                I.     BACKGROUND

      Yetiv’s company, Westview, sued its insurance company when the insurance
company refused to pay a claim after a fire. See Westview Drive Invs., LLC v.
Landmark Am. Ins. Co., 522 S.W.3d 583, 589–91 (Tex. App.—Houston [14th
Dist.] 2017, pet. denied). During the trial, Yetiv testified that he delayed reporting
the fire to the insurance company and a bankruptcy trustee on the advice of his
counsel, Edward Rothberg. When the insurance company subpoenaed Rothberg,
Westview moved to quash based on attorney-client privilege. Wilkin, one of the
insurance company’s lawyers, argued that the privilege had been waived for
several reasons, including the crime–fraud exception—in particular, bankruptcy or
insurance fraud.

      Yetiv requested, and the trial court granted, an evidentiary hearing to explore
the crime–fraud exception. Both Rothberg and Yetiv testified. Rothberg testified



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that he had no memory of telling Yetiv not to tell anyone about the fire. The trial
court ruled that the crime–fraud exception applied and allowed the discovery.

      On the following day, a Friday, the trial was in recess. That morning, Yetiv
sent an email to Wilkin, which is appended to this opinion in Appendix A. In the
email, Yetiv threatened to file a grievance against Wilkin “unless, by noon on
Monday, you announce in open court that you now realize that there was no factual
or legal basis for your allegations, and that you are sorry for having made them and
that you now withdraw them ENTIRELY.” Yetiv continued, “If you do make the
above statement—the language of which will have to be agreed upon—I will
release you and [your firm] from all potential liability in connection with the
statement you made and will agree not to file a grievance against you and [your
firm] with the State Bar or related authorities.” Yetiv encouraged Wilkin to
“[t]hink about it carefully.” Yetiv concluded, “Choose wisely.”

      On Monday, Wilkin did not make the statement requested by Yetiv.
Westview presented additional witness testimony, and both parties rested and
closed. Wilkin brought Yetiv’s email to the trial court’s attention. The jury found
in favor of the insurance company. Ultimately, the trial court sanctioned Yetiv for
sending the email, and this court affirmed the jury’s verdict and the sanction. See
id. at 616–17.

      In this disciplinary proceeding, Wilkin testified that Yetiv’s threat was “a
trial tactic just trying to divert us from preparing for closing statements, preparing
for the very comprehensive jury charge argument, making the decision on the
morning of the day I told the Court I was going to make the decision of who to call
in my case-in-chief whether or not to call somebody.” Wilkin also testified that
before Yetiv had sent the email, it was a very real possibility that Wilkin would
have called Rothberg to testify. The goal for subpoenaing Rothberg in the first

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place was to show that Yetiv’s new excuse for his not reporting the fire was not
credible.

      Yetiv testified that there was “no conceivable advantage” related to the trial
court’s rulings that Yetiv could have gained from sending the email. He testified
that he had two motives for sending the email: (1) to clear his reputation; and (2) to
find out if Wilkin had made a mistake by accusing Yetiv of bankruptcy or
insurance fraud. Yetiv testified that if he could do it over again, he would not have
written the email. Instead, he “would [have] just grieved them.”

      Yetiv’s appellate counsel in the Westview case, Alan Daughtry, testified that
Yetiv called Daughtry soon after Wilkin made the argument about the crime-fraud
exception. Daughtry described Yetiv as “inflamed,” “outraged,” and “absolutely
livid” about the “wrongful allegations of criminal conduct.” Yetiv never said
anything to Daughtry that would have caused Daughtry to believe that Yetiv was
seeking some advantage in the litigation by sending the email. Daughtry testified,
“All he ever cared about [was] clearing his reputation, and he was greatly
concerned about that.”

      At the conclusion of trial, the court found that Yetiv violated Rule
4.04(b)(1), and the court ordered a four-month suspension, fully probated, and a
sanction of $4,500 in attorney’s fees.

                II.   “UNDISCLOSED EXTRA-RECORD EVIDENCE”

      In his first issue, Yetiv contends that the trial court erred by considering
“undisclosed extra-record evidence.” The Commission contends, among other
things, that Yetiv failed to preserve this alleged error. We agree with the
Commission.



                                          4
A.    Procedural Background

      At the conclusion of the trial, the court made several statements to suggest
that the court had reviewed transcripts from the Westview trial, which were not
offered into evidence in this case:

            I think, again, you sent it out to a Judge who had already made
      his determination after two different hearings. After your Evidentiary
      Hearing that is part of this reason.
             In fact, I know that it’s not before the Court in terms of
      evidence, but I have it in mind in terms of determining your
      credibility as well. But the Court did find, in fact, after the hearing,
      that it was related to the Crime-Fraud Exceptions. And at one point
      during that Evidentiary Hearing you said, look, that’s what I’m here to
      determine, if you will.
             And, so, that testimony that kind of contradicted what was
      going on in that hearing. And, again, that transcript is not before me in
      evidence, but I have knowledge of it and I used that in part of looking
      at and coming up with my ruling.
           Is there any other matter that I need to take up on y’all’s behalf?
      Any other finding?
Yetiv did not object to the trial court’s consideration of matters that were not in
evidence. Yetiv raised this complaint for the first time in his motion for new trial
after the trial court signed its judgment.

B.    No Error Preserved

      To preserve error, an appellant must make a timely request, objection, or
motion. Tex. R. App. P. 33.1(a)(1). An objection is timely if it is asserted at the
earliest opportunity or interposed at a point in the proceedings when the trial court
has an opportunity to cure any alleged error. Laven v. THBN, LLC, No. 14-13-
00440-CV, 2014 WL 6998098, at *3 (Tex. App.—Houston [14th Dist.] Dec. 11,
2014, no pet.) (mem. op.). A complaint is not timely when made for first time in a


                                             5
motion for new trial if the complaint could have been urged earlier. Id.; accord In
re A.E., No. 02-18-00124-CV, 2018 WL 3763928, at *3 n.2 (Tex. App.—Fort
Worth Aug. 9, 2018, no pet.) (mem. op.); Matbon, Inc. v. Gries, 288 S.W.3d 471,
490 (Tex. App.—Eastland 2009, no pet.); Hoxie Implement Co., v. Baker, 65
S.W.3d 140, 145 (Tex. App.—Amarillo 2001, pet. denied); see also St. Paul
Surplus Lines Ins. Co. v. Dal-Worth Tank Co., 974 S.W.2d 51, 53 (Tex. 1998) (no
error preserved regarding Mary Carter agreement when raised for first time in a
motion for new trial); Brown v. Pittsburgh Corning Corp., 909 S.W.2d 101, 104
(Tex. App.—Houston [14th Dist.] 1995, writ denied) (“A party cannot wait until
the trial is finished, then seek to reverse an unfavorable verdict by complaining of
an error which the trial court could have corrected had it been timely informed of
the error.”).

       Yetiv contends that the trial court’s comments indicate that the court relied
on “undisclosed extra-record evidence.” But Yetiv did not object at the time the
trial court indicated it was considering the record from the prior proceedings. Yetiv
had the opportunity to raise this complaint at trial, but he did not raise it until after
the trial court signed its judgment. Yetiv’s complaint was not timely because it was
made for the first time in a motion for new trial. Thus, no error is preserved.

       Yetiv’s first issue is overruled.

                            III.   “BINDING ADMISSION”

       In his second issue, Yetiv contends, “The judgment should be reversed and
rendered because the trial judge disregarded the Commission’s legally-correct
binding admission that the word ‘solely’ as used in DR 4.04(b)(1) means ‘100%.’”
The rationale for Yetiv’s argument concerning a “binding admission” is unclear,
and Yetiv cites no authority relevant to the issue.


                                           6
      The Texas Disciplinary Rules of Professional Conduct are interpreted like
statutes. Comm’n for Lawyer Discipline v. Hanna, 513 S.W.3d 175, 178 (Tex.
App.—Houston [14th Dist.] 2016, no pet.). And, because the interpretation of a
statute is a question of law that a court determines de novo, the court is not bound
to accept the Commission’s interpretation. See Oleksy v. Farmers Ins. Exchange,
410 S.W.3d 378, 383 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). Thus,
even if the trial court had disregarded the Commission’s purported admission
concerning the meaning of the rule, there would be no error.

      Yetiv’s second issue is overruled.

           IV.   LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE

      In his third through sixth issues, Yetiv contends that there is no evidence he
made a threat “solely to gain an advantage” in a civil matter, and that the trial
court’s finding as such was against the great weight of the evidence. Although
Yetiv asks for the rendition of a judgment in his favor under each issue, and
although he cites no authority concerning the standards of review for legal or
factual sufficiency, we understand his arguments to address both the legal and
factual sufficiency of the evidence.

A.    Finding of Fact that Yetiv Violated Rule 4.04(b)(1)

      When the record does not include findings of fact, a reviewing court implies
all necessary findings to support the judgment. See Curtis v. Comm’n for Lawyer
Discipline, 20 S.W.3d 227, 231 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
Under these circumstances, a reviewing court will affirm the trial court’s ruling on
any available legal theory that finds support in the evidence. Exterior Bldg. Supply,
Inc. v. Bank of Am., N.A., 270 S.W.3d 769, 772 (Tex. App.—Dallas 2008, no pet.)
(citing Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987)). If


                                           7
findings are properly requested under Rules 296 and 297 of the Texas Rules of
Civil Procedure, and the trial court does not file findings, then “an appellate court
is not required to imply all necessary findings in support of the trial court’s
judgment.” Elliott v. Kraft Foods N. Am., Inc., 118 S.W.3d 50, 56 (Tex. App.—
Houston [14th Dist.] 2003, no pet.).

       Yetiv notes in his brief that he requested findings of fact and notified the
trial court of past due findings, and he contends that the trial court failed to file
findings. But Yetiv does not assign error to the trial court’s purported failure to file
findings. Yetiv does not request an abatement for the trial court to file findings.
Nor does Yetiv contend that he suffered any harm. See generally id. at 54–55
(noting that abatement is the initial remedy for a trial court’s refusal to file
findings, and the controlling issue for determining harm after an abatement is
whether the appellant would need to guess at the reasons for the trial court’s
decision; holding there was no harm because the appellant was able to properly
present the issues on appeal and this court was able to address and decide the point
of error).1

       Rather, Yetiv contends that this court “should not make any presumption in
this appeal against Yetiv” and that this court should give no deference to the trial
court’s judgment.

       The trial court announced in its judgment that “the Court finds and
concludes” that Yetiv violated Rule 4.04(b)(1) of the Texas Disciplinary Rules of
Professional Conduct. Specifically, the court found:

       Respondent violated the following Texas Disciplinary Rules of
       Professional Conduct: Rule 4.04(b)(1) [a lawyer shall not present,
       1
           Yetiv does not ask for the appellate record to be supplemented with any findings of fact
the trial court may have filed, although Yetiv notes that the trial court sent the parties an email, in
which the trial court wrote that the court had indeed filed findings of fact and conclusions of law.

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         participate in presenting, or threaten to present: criminal or
         disciplinary charges solely to gain an advantage in a civil matter]. 2

Although findings should be filed as a separate document and not recited in a
judgment, “findings improperly included in a judgment still have probative value
and are valid as findings” if they are not supplanted by separately filed findings. In
re C.A.B., 289 S.W.3d 874, 880–81 (Tex. App.—Houston [14th Dist.] 2009, no
pet.).

         Regardless of whether Yetiv is challenging an implied or express finding
that he violated Rule 4.04(b)(1), the standard of review for challenges to implied
and express findings is the same. See Exterior Bldg. Supply, 270 S.W.3d at 772–73
(citing Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989) (per curiam)). In
this case, there was only one available legal theory for the trial court to consider:
whether Yetiv violated Rule 4.04(b)(1). Yetiv challenges this finding on appeal.
Thus, we need not imply findings in support of the judgment to address Yetiv’s
legal and factual sufficiency challenges. The trial court made the necessary finding,
and Yetiv has shown no harm from the trial court’s purported failure to file
separate findings. See Elliott, 118 S.W.3d at 54–55.

B.       Standards of Review

         When a party challenges the legal sufficiency of the evidence to support a
finding, we review the record in the light most favorable to the finding, crediting
favorable evidence if a reasonable fact-finder could and disregarding contrary
evidence unless a reasonable fact-finder could not. See City of Keller v. Wilson,
168 S.W.3d 802, 807 (Tex. 2005). We indulge every reasonable inference in
support of the verdict. Id. at 822. We may not substitute our opinions on credibility
for those of the fact-finder. See id. at 816–17; see also In re J.O.A., 283 S.W.3d

         2
             The brackets appear in the judgment.

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336, 346 (Tex. 2009) (recognizing that the fact-finder, not the appellate court, is
the sole arbiter of the witnesses’ credibility and demeanor). The ultimate test for
legal sufficiency is whether the evidence at trial would enable reasonable and fair-
minded people to reach the verdict under review. City of Keller, 168 S.W.3d at
827.

       In a factual sufficiency review, we will set aside the verdict and remand for a
new trial if we conclude that the verdict is so against the great weight and
preponderance of the evidence as to be manifestly unjust. Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (citing In re King’s Estate, 244
S.W.2d 660, 661 (Tex. 1951)). We will weigh the evidence supporting the verdict
along with evidence contrary to the verdict. See id. at 761–62. However, the fact-
finder remains the sole judge of the credibility of witnesses and the weight to be
given their testimony. Id. at 761. We must defer to the fact-finder’s determinations
so long as those determinations are reasonable. See Sw. Bell Tel. Co. v. Garza, 164
S.W.3d 607, 625 (Tex. 2004). We may not merely substitute our judgment for that
of the fact-finder. Golden Eagle Archery, 116 S.W.3d at 761.

C.     Analysis

       In his fifth and sixth issues, Yetiv contends that there is no evidence and
insufficient evidence to prove he made the threat of disciplinary charges to “gain
an advantage” in a civil matter. In his third and fourth issues, Yetiv contends that
even if there was an advantage to be gained, the threat was not made “solely” to
gain an advantage.

       1.    Advantage

       Yetiv contends that neither the email nor the witnesses’ testimony showed
that Yetiv sought to gain an advantage in the Westview litigation. Yetiv suggests


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that Rule 4.04(b)(1) should only encompass a quid pro quo involving the lawyer
receiving a financial benefit of some kind. For example, this court held that
evidence was sufficient to discipline a lawyer when the lawyer relayed to the
opposing party (his then-wife) that he would report the party’s alleged criminal
conduct if the litigation was not resolved by settlement. See Vickery v. Comm’n for
Lawyer Discipline, 5 S.W.3d 241, 261–62 (Tex. App.—Houston [14th Dist.] 1999,
pet. denied). Similarly, another court of appeals held that evidence was sufficient
to discipline a lawyer when the lawyer threatened to report his former client’s
stalking behavior to authorities in the same conversation that the lawyer asked the
client to pay legal fees. See Weiss v. Comm’n for Lawyer Discipline, 981 S.W.2d 8,
17–19 (Tex. App.—San Antonio 1998, pet. denied).

      Although Vickery and Weiss involved quid pro quo of the ultimate
settlement of a matter and payment of money, Rule 4.04(b)(1) speaks only to an
“advantage” in a civil matter. An “advantage” is “the quality or state of being
superior” or “a more favorable or improved position or condition.” Advantage,
Webster’s Third New International Dictionary 30 (1993). Thus, an advantage need
not be a final settlement or payment of money. Cf. Barrett v. Va. State Bar, 611
S.E.2d 375, 381 (Va. 2005) (evidence sufficient under Virginia’s similar
disciplinary rule when the lawyer’s motivation in threatening disciplinary
complaints was to force opposing counsel to withdraw from representation).

      Wilkin testified that Yetiv’s threat, communicated during the middle of trial,
was a tactic to divert attention from the defense’s presentation of their case,
preparation of the jury charge, and closing arguments. In the email, Yetiv made a
threat conditioned on Wilkin’s response, stating that Yetiv would file a disciplinary
charge unless Wilkin took specific action during the trial. Yetiv demanded that
Wilkin state in open court that Wilkin was retracting his assertion of the crime–

                                         11
fraud exception, that there was no legal or factual basis for the assertion, and that
Wilkin was sorry. No doubt, this action would have bolstered Yetiv’s credibility in
front of the trial court and lessened Wilkin’s credibility. This action would have
resulted in an “advantage” for Yetiv in the civil matter, however slight.

      Although Yetiv testified that there was no conceivable advantage for making
his threat, and nothing caused Daughtry to believe that Yetiv sought an advantage,
we may not find legally or factually insufficient evidence by simply disagreeing
with the trial court’s reasonable determinations of credibility. See City of Keller,
168 S.W.3d at 816–17; Garza, 164 S.W.3d at 625. The evidence at trial would
enable reasonable and fair-minded people to conclude that Yetiv sought an
advantage in a civil matter, and this finding is not so against the great weight and
preponderance of the evidence as to be manifestly unjust. See Vickery, 5 S.W.3d at
261–62; Weiss, 981 S.W.2d at 17–19.

      Yetiv’s fifth and sixth issues are overruled.

      2.     Solely

      Yetiv contends that neither the email nor the witnesses’ testimony showed
that Yetiv’s sole intent or motive was to gain an advantage in a civil matter. Yetiv
contends that his “primary motive in writing his email was his concern about his
reputation and the impacts that Wilkin’s false accusations could have on Yetiv’s
legal career.”

      “Intent is a fact question uniquely within the realm of the trier of fact
because it so depends upon the credibility of the witnesses and the weight to be
given their testimony.” Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434
(Tex. 1986). Since intent is not susceptible to direct proof, it invariably must be
proven by circumstantial evidence. See id. at 435 (regarding intent to defraud); see


                                         12
also Bentley v. Bunton, 94 S.W.3d 561, 596 (Tex. 2002) (noting that a defendant’s
testimony concerning his intent is not conclusive irrespective of all other evidence,
and a party’s “state of mind can—indeed, must usually—be proved by
circumstantial evidence”).

      The trial court could have disbelieved Yetiv’s self-serving testimony and
statements in the email concerning his motive for threatening a disciplinary charge
against Wilkin. And, Daughtry’s testimony that Yetiv was upset and angry about
his reputation does not preclude a finding that Yetiv acted solely to gain an
advantage in the civil matter. In the only case cited by Yetiv on appeal concerning
the application of Rule 4.04(b)(1), this court held that the evidence was legally and
factually sufficient although there was evidence that the lawyer “wanted to make
[the opposing party’s] life miserable.” See Vickery, 5 S.W.3d at 261–62. Similarly,
in Weiss the court of appeals held that the evidence was legally and factually
sufficient although there was evidence that the lawyer’s former client had been
stalking the lawyer and that the lawyer threatened the client because of the
stalking. See 981 S.W.2d at 18–19. And in Barrett, the evidence was sufficient
although there was evidence that the lawyer believed the opposing counsel was
engaging in unethical conduct. See 611 S.E.2d at 595–96. Thus, a lawyer’s
personal feelings about the opposing party or counsel does not preclude a violation
of Rule 4.04(b)(1).

      By the time Yetiv threatened Wilkin, the trial judge in the Westview case had
already held a hearing at which Yetiv and Rothberg testified. Thus, Yetiv had a full
opportunity to clear his reputation in open court, yet the judge still ruled that the
crime–fraud exception applied. The trial court in this disciplinary proceeding could
have considered these facts when judging Yetiv’s credibility concerning his
purpose for threatening Wilkin with a disciplinary charge.

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      The evidence in this case would enable reasonable and fair-minded people to
conclude that Yetiv threatened Wilkin with a disciplinary charge solely to gain an
advantage in a civil matter, and this finding is not so against the great weight and
preponderance of the evidence as to be manifestly unjust. See Vickery, 5 S.W.3d at
261–62; Weiss, 981 S.W.2d at 17–19.

      Yetiv’s third and fourth issues are overruled.

                               V.     CONCLUSION

      Threatening to use the criminal or disciplinary process solely to coerce a
party in a private matter improperly suggests that a lawyer can manipulate the
criminal process for personal gains and manipulate the legal system for personal
advantage. See Tex. Disciplinary Rules Prof’l Conduct R. 4.04 cmt. 2–3. “Creating
such false impressions is an abuse of the legal system that diminishes public
confidence in the legal profession and in the fairness of the legal system as a
whole.” Id. cmt. 3. An attorney must be “exceptionally careful” when
communicating a threat of criminal or disciplinary proceedings in the course of
litigation. See Tex. Comm. on Prof’l Ethics, Op. 457, 51 Tex. B.J. 808, 808 (1988).

      In this case, we do not substitute our judgment for the fact-finder’s when
reviewing the sufficiency of the evidence. Accordingly, the trial court’s judgment
is affirmed.




                                       /s/    Ken Wise
                                              Justice


Panel consists of Justices Wise, Zimmerer, and Spain.


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APPENDIX A




             15
