Hurricane "I’m Sorry" Letter Inquiries
For all of those who have read on blogs or on emails, Jeff Murphrey’s letter of September 26, 2008 to Dale Markland about hurricane related sewage in his yard in which he slams Mr. Markland and impliedly slams the lawyers from the great city of Dallas, Texas.
lawyers who practice in this great city, and I am proud of
my actions related to Mr. Murphrey’s late cancellation of
the deposition. Dallas, like Houston, has thousands of
very professional and capable attorneys, like myself, who
represent their clients in a very professional, competent
and ethical way. Mr. Murphrey’s implied slam on Dallas
attorneys and his slam on me are totally off base and
unjustified. Read on for the real story behind Jeff
On September 26, 2008, a Houston attorney, Jeff Murphrey, sent a letter to me (Dale Markland) related to his cancellation of a deposition in an on-going lawsuit that he and I were involved in. Someone sent that letter to internet blog sites and distributed it through mass emailings such that basically the entire world has had a chance to read Mr. Murphrey’s letter, and apparently many have. Some individuals who have read that letter (and only that letter), have apparently drawn some conclusions about my actions and those of our law firm in this situation. This is my statement regarding the events and the contents of the letter. I thought my “jurors”—those on blog sites and mass emailing sites—might want to hear some of the detailed facts about the events rather than relying solely on the one and one-half page September 26 letter from Mr. Murphrey. I thought that lawyers particularly would feel it unjust that anonymous bloggers would attempt to destroy the reputation of a fellow lawyer (myself) that has been built through almost 35 years of practice and built to such a degree that I have received an AV rating from Martindale-Hubbell Legal Directory every year for well over a quarter of a century—particularly when bloggers based their attempt to destroy my reputation solely on what they read in a one and one-half page emotional letter that included some allegations, but virtually nothing in the way of relevant facts. The lessons to be learned from this situation are of extreme significance to the legal profession and indeed, to the entire society in which we live.
The hurricane in the Houston area occurred on September 12/13;
Mr. Murphrey cancelled the deposition on September 23 when I was already on my way to Fort Wayne, Indiana for the deposition;
I first got notice of this cancellation by cell phone message while in Chicago O’Hare Airport rushing to catch my connecting flight to Fort Wayne;
The voice mail message I received in Chicago stated that Mr. Murphrey cancelled the deposition because he had meetings with contractors and city officials related to hurricane damage. It stated nothing about the horrors Mr. Murphrey addresses in his September 26 letter.
Our firm’s attorneys attempted to gain Mr. Murphrey’s agreement that our client be recompensed for the unnecessary attorney’s fees and travel expenses entailed in my needlessly going to Fort Wayne. This is appropriate and professional behavior for attorneys who are representing their clients properly under the Texas State Bar Disciplinary Rules and The Texas Lawyers Creed. It is also, in my experience, not abnormal behavior for an attorney properly representing his client. If I had been in Mr. Murphrey’s shoes, I would have paid for the fees and expenses out of my firm’s pocket.
Mr. Murphrey agreed to pay the travel expenses but declined to pay the attorney’s fees for the useless trip to Fort Wayne.
It was not my fault or the fault of the client who pays my fees and expenses that Mr. Murphrey did not cancel the deposition until I was on my way to Fort Wayne.
If Mr. Murphrey had simply picked up the telephone and called me, or had sent me an email or letter sometime between the hurricane on September 12/13 and when I left for Fort Wayne on September 23, I would have gladly agreed to re-set the deposition he had noticed. Then my client would not have been stuck with the fees and expenses of my useless trip to Fort Wayne.
The first I knew of Mr. Murphrey’s story of horrors regarding his home damage was when I received his September 26 letter—after he cancelled the deposition, after I had made the useless trip to Fort Wayne, after I had appropriately determined whether Mr. Murphrey or his client would pay for the needless fees and expenses and after he had declined to pay my client for the fees.
I am very sympathetic to Mr. Murphrey and his home situation, but it is not my client’s fault that Mr. Murphrey failed to cancel the deposition before I left, and the client should not bear this significant financial burden. My duty under Texas law is to uphold the interest of my client and that is what I have attempted to do.
I implore those reading to also read the entirety of this lengthy statement. If you read nothing else, please read the last section entitled “The Lessons to be Learned…”
A few months ago, Jeff Murphrey requested on behalf of his client that my client set up the deposition of a particular witness in a case in which we were both involved. This witness was a retired engineer previously employed by my client who lived in Fort Wayne, Indiana. Of course, I agreed to do so. Our case involves eleven different parties. Getting the original date for the deposition set up entailed coordinating the schedules of all eleven counsel in the case plus the schedules of the witness and of my client’s representatives who planned to attend the deposition. In the case of the witness, myself and my client’s representatives, this process entailed finding two consecutive dates on all of our calendars—one for deposition preparation and one for presenting the witness for the deposition, plus a day for travel in my case from Dallas to Fort Wayne, Indiana where the deposition was to be taken. In the process of initially getting this deposition set up, I informed Jeff Murphrey in an email of June 19 that one possibility was to do the deposition on July 23 if I could juggle my schedule to work on that date. The witness was available, and my client’s representatives were available on that date. I reiterated by email of July 1 to Jeff Murphrey that I was still trying to get that deposition set up on July 23 and felt that I could get that worked out. By email of July 2, I confirmed that I could present the witness for deposition on July 23. I had rearranged my schedule to accommodate that. Having not heard from Jeff Murphrey to the contrary since my June 19 email, I presumed July 23 was acceptable. I then received notice, by email on July 3, that Jeff could not make himself available on the 23rd. In response, I sent Jeff an email of July 7 indicating that I felt he should have let me know at an earlier point in time in response to my earlier emails if he had not been available on July 23. In that way, I would not have had to have rescheduled other matters to make July 23 work. I requested Mr. Murphrey to provide other available dates and I stated that I would try to schedule the deposition accordingly. I went forward again with the rescheduling process with all of the attorneys, parties and witness. After a great deal of effort in this regard and significant monetary outlays by my client for the law firm expenses in getting the deposition set up, a date was agreed upon—that being August 13, 2008. Mr. Murphrey issued his deposition notice for that date. The witness, myself and my client’s representatives set aside two days for the activities. I set aside a third day for travel to Fort Wayne. In the week preceding August 13, one of the other counsel in the case had a conflict arise—he was called to trial in the time period that was set for the witness’ deposition in our case. Mr. Murphrey, at that other counsel’s request, agreed to cancel the deposition. Mr. Murphrey asked that I circulate some new dates as soon as I could. I responded that I would do so, and I again went about the process of getting the deposition set up. My firm again put in significant efforts to find a mutually convenient date for all of the parties and to find two consecutive days that myself, my client’s representatives, and the witness would be available. This again entailed significant expense to my client for law firm fees. We all settled on September 25. Jeff Murphrey issued his deposition notice for that date. From that point in time until September 23, we heard nothing from Jeff Murphrey regarding having any problems related to the hurricane or needing to re-set the witness’ deposition. I made flight arrangements to Fort Wayne, Indiana—the place of the deposition. This was a two-leg flight going first to Chicago and then catching a connecting flight from Chicago to Fort Wayne.
As is customary, I needed one day for travel to Fort Wayne, Indiana (most flights go through Chicago), one day for pre-trial preparation to discuss the issues with the witness, and a third day, September 25, was the set date for the deposition.
The hurricane occurred September 12-13 in the Galveston/Houston area. Mr. Murphrey did not call me or make any contact with me about his having had any problems with hurricane damage or about his needing to cancel the deposition between the time of the hurricane on September 12/13 and September 23—the date that I left for Fort Wayne, Indiana. I flew to Fort Wayne, Indiana through Chicago on September 23 to prepare the witness for the deposition.
Mr. Murphrey telefaxed a letter to my office on September 23—after I had already left the office for my flight to Chicago. In the telefaxed letter, he stated that he had extensive hurricane damage and needed to meet with contractors and city officials about that. He said nothing about all of specific horrors that he mentions in his September 26, 2008 letter. He stated in his telefaxed letter of September 23 that he was cancelling the deposition. This was received in our office after I had left for my trip to Chicago and Fort Wayne.
When Mr. Murphrey’s faxed letter was received by my office, my office personnel attempted to contact me, but I was already on the plane with my cell phone turned off awaiting departure. When I got to Chicago, and as I rushed from the flight from Dallas to the connecting flight to Fort Wayne, I got the voice mail message from my paralegal regarding Mr. Murphrey’s letter cancelling the deposition. My paralegal’s voice message on my cell phone stated that Mr. Murphrey had cancelled the deposition because hurricane damage required him to meet with contractors and city officials during the time frame of the deposition. Nothing was stated in this communication either about the extensive nature of the damage Mr. Murphrey suffered or about the detailed horrors which he later set forth in his September 26, 2008 letter. During the short intervening time that I had to catch the flight to Fort Wayne, I also called my client who was travelling by car from Chicago to Fort Wayne for the same meeting to inform him of the situation and to get his instructions. He did not pick up on the cell phone, so I left him a message and got on the plane to Fort Wayne to meet him there. During the short intervening time that I had to catch the flight to Fort Wayne, I also called my partner and asked that she call Mr. Murphrey and determine whether his firm or his client would pay for my travel expenses in going to Fort Wayne needlessly and for reasonable attorney’s fees for the travel time. I was concerned that my client would be stuck with the fees and expenses for a useless trip caused by the late cancellation of the deposition by Mr. Murphrey. In my experience, it is not abnormal for one party to demand attorney’s fees and expenses from the other party when the first party has had to undergo those expenses because the second party has failed to give adequate notice of cancellation of a deposition. If I had been in Mr. Murphrey’s shoes, I would have agreed to pay for the useless trip of other counsel out of my firm’s pocket. I did not instruct my partner to seek the expenses entailed by my client, who also needlessly travelled to Fort Wayne from Chicago.
When I arrived at Fort Wayne on September 23, I listened to a voice mail message from my partner in which she stated that she had attempted to call Mr. Murphrey, but he was not available and that she, by leaving him a voice mail message, had passed on to Mr. Murphrey my inquiry regarding whether he would agree to payment of the expenses and attorney’s fees.
When I arrived at Fort Wayne, I discussed the situation with my client. The determination was made that it would be appropriate to insist upon reimbursement of the expenses and attorney’s fees due to the late notification of cancellation of the deposition. We called the witness and informed him that his deposition would again have to be re-set. Knowing that when the deposition was re-set we would have to prepare him the day in advance of the deposition in any case, we offered the witness the option to go forward with the deposition preparation session the next day and again prior to the re-set deposition date, or to simply do it one time—the day before the deposition was re-set. The witness, who had already set aside a number of days for this activity, requested that we simply do the deposition preparation the day before the deposition was re-set. My client and I stayed overnight in Fort Wayne. The next morning I awoke at 4:50 a.m. Eastern time to catch a 6:30 direct flight back to Dallas from Fort Wayne. This was the only direct flight until mid-afternoon. In this way, I would save the client the cost of my time sitting around Fort Wayne while waiting for a direct flight or the time spent in traveling through Chicago to get back to Dallas. It was 3:45 a.m. my time when I awoke to go to the airport for this cost-saving action. My client drove back to Chicago that morning having wasted more than a day of his time in coming to Fort Wayne.
On the morning of September 24, my partner received a voice mail message from Kari Jones of Mr. Murphrey’s office stating that Mr. Murphrey would agree to pay “reasonable hotel and flight fees.” I confirmed with my law partner that the message she left for Mr. Murphrey included attorney’s fees as well as travel expenses, and she stated that it was her belief that it did. I responded on September 24 to Mr. Murphrey’s secretary’s voice mail by telefaxed letter to Mr. Murphrey that our proposal was to include reasonable attorney’s fees, not just airfare and hotel expenses. In response, Jeff Murphrey sent to our office an email of September 24 in which he states “according to Tara Hanley (my law partner who had left the message at Jeff Murphrey’s), you said you would agree to cancel the deposition of (the witness) if my client would agree to reimburse you for any reasonable fees (airfare and hotel) incurred while traveling to Indiana yesterday. My secretary left Ms. Hanley a voice mail message earlier this morning indicating our agreement to do so. However, since you are now stating that Navistar did not agree to the cancellation, my client will not reimburse you for anything.” I took note of Mr. Murphrey’s language in his email “any reasonable fees (air fare and hotel) incurred while traveling to Indiana yesterday.” I doubted that my law partner put any parenthesis around the words “airfare and hotel” in her phone message which she left for Mr. Murphrey as Mr. Murphrey had put around those words in his email. Following receipt of Mr. Murphrey’s email, my law partner responded to him with an email in which she stated that as she recalled, her message included attorney’s fees, airfare and hotel expenses. She also indicated to Mr. Murphrey that in her experience, attorney’s do not routinely refer to airfare and hotel as “fees,” and that she does not believe she did so in her message for Mr. Murphrey. My partner, in her response, asked Mr. Murphrey to permanently save the message which she left on his email on Tuesday afternoon and to provide us with an audiotape copy of the message. To date we have not received such a copy of the message. To date, Mr. Murphrey has not so much as attempted to call me to discuss this. He did not do so in the ten days or so intervening between the hurricane and his cancellation of the deposition, he did not do so when attempting to cancel the deposition, and he did not do so at any point in time thereafter.
Following the above chain of events, Mr. Murphrey sent his September 26, 2008 letter. In his letter of September 26, he states that my partner did not mention anything about attorney’s fees in her voice mail. As noted above, this is certainly a point of disagreement. Mr. Murphrey then makes the statement in his letter of September 26, “I am sorry that you either went back on your word, or more likely, just do not have a word.” I gave Mr. Murphrey no word on the subject. I never even talked to Mr. Murphrey. My partner left him a message regarding what my proposal was. She believes she accurately stated the proposal in her message left for Mr. Murphrey. My proposal, as discussed with my client included reasonable attorney’s fees. If Mr. Murphrey’s office had any unclarity regarding that, it was made perfectly clear to Mr. Murphrey through both my telefaxed letter of September 24 and my partner’s email that our client was seeking attorney’s fees as well as travel expenses. There was nothing unclear about these statements. Neither I nor my client had any agreement with Mr. Murphrey on this subject.
Mr. Murphrey goes on in his letter of September 26 to state that I am a lawyer that consistently goes out of my way to be unaccommodating and unprofessional with the other lawyers. As noted above, regarding this very deposition, my law firm, at my client’s expense had gone through great effort to get the deposition set and re-set to accommodate the needs of other parties and their attorneys. I consistently work with the other attorney’s in the cases in which I am involved to find mutually convenient deposition dates.
If Mr. Murphrey had just picked up the telephone and called me or had asked me by email or regular mail for re-setting of the deposition in the 9 to 10 day post-hurricane time frame and before I flew off to Fort Wayne for my client, there would have been no problem. I would have gladly re-set the deposition and there would have been no unnecessary expenses and fees involved for my client.
It was not my fault nor my client’s that Mr. Murphrey waited so late to cancel the deposition.
The first I knew of Mr. Murphrey’s story of horrors as expressed in his September 26 letter is when I got the letter on September 26—after he had failed to come up to Fort Wayne for the deposition and after he had cancelled it.
I am very sympathetic to Mr. Murphrey’s situation relative to the hurricane, but it is not my client’s fault that he failed to cancel the deposition in a more timely fashion before I entailed the fees and expenses on my client’s behalf.
Mr. Murphrey stated in his letter of September 26 that I am “unprofessional.” My entire career presents itself as proof to the contrary. I have spent almost 35 years in the legal profession building my reputation. I am AV rated by Martindale-Hubbell and have been for over a quarter of a century. This is the highest rating offered by Martindale-Hubbell for both proficiency as an attorney and ethical conduct. In this instance, I did nothing more than attempt to look out for my client’s interest as any competent and professional lawyer would do. I have not tried to fight this September 26 letter issue through media or blogs, but rather through rational discourse among the parties. I violated no agreement with Mr. Murphrey.
After Mr. Murphrey’s September 26 letter was disseminated by some party through the internet blogs and emails to basically everyone in the world, apparently some of the readers of Mr. Murphrey’s September 26 letter failed to recognize these facts:
That it was Mr. Murphrey’s deposition—he had the control over whether to cancel it and how timely that cancellation might be;
That Mr. Murphrey failed to cancel the deposition before I got on a plane to go to the deposition;
That my client would have to suffer the financial detriment of several thousand dollars because Mr. Murphrey failed to cancel the deposition at an earlier date, or that my small law firm with only three attorneys would have to suffer this significant financial detriment if, in the very likely event we determined we would not bill the client either for my wasted time flying to Fort Wayne or for my travel expenses;
That I never knew of Mr. Murphrey’s hurricane damage until I was in Chicago, and even then did not know any of the details—simply that he had to cancel due to hurricane damage and needed to see contractors and city officials;
That I never knew of any of the horrors expressed by Mr. Murphrey in his September 26 letter until I got his letter which was after I requested recompense for attorney’s fees and costs;
That I acted in a professional and appropriate way in making a formal demand for my client to be reimbursed for the expenses and attorney’s fees for the needless trip which my client would have otherwise felt obliged to pay our law firm;
That attorneys under the Texas State Bar Disciplinary Rules are charged to act with competence, commitment and dedication in the interests of their client with zeal and advocacy on the client’s behalf and that a lawyer should feel a moral or professional obligation to pursue a matter on behalf of a client with reasonable diligence and promptness despite opposition, obstruction or personal inconvenience to the lawyer. That is exactly what I did on behalf of my client in this instance;
That under the State Bar Lawyers Creed, a lawyer shall employ all appropriate legal means to protect and advance the client’s legitimate rights, claims and objectives. Under this Creed, a lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity nor be influenced by mere self interests. That is the way I have conducted myself in this situation, having now endured significant public unpopularity for merely doing that which was in my client’s interest;
That under the Texas Lawyers Creed, attorneys are charged to “notify opposing counsel, and if appropriate, the court or other persons as soon as practicable, when hearings, depositions, meetings, conferences, or closings are cancelled.” While I am in no way suggesting that Mr. Murphrey did not inform me of the cancellation as soon as practicable for him—I do not know when he first got his meetings with contractors and city officials set up relative to his hurricane damage—I believe it is important for the general reading public to understand this basic principle of legal professionalism that lawyers in our state are supposed to understand;
In return for doing my job in a proper and professional way, I got the following:
A telephone call from The Texas Lawyer asking me to respond to all of the scorn I was being subjected to on internet blogs and in emails circulating throughout the country. Not being a blogger, I was unaware of the scorn which had been directed at me by a segment of at least the lawyer populous. Directed to one particular blog site, I found bloggers, apparently some being lawyers, calling me a liar and a scoundrel. These individuals did not know me, they were not involved in the deposition situation, knew nothing about the facts of that situation, and had not been presented with the full factual details as explained above. These bloggers were anonymous, and I have no means at present of identifying them or responding. These bloggers put poison out there for the entire world to ingest.
As well as anonymous bloggers disparaging my reputation, I have also had to endure direct emails from emailers who had read Mr. Murphrey’s September 26 letter—some from identified individuals and some from anonymous individuals. These include one from an identified lawyer in Tampa, Florida who tells me that he hopes that if I have children, I am not their role model. Another, after giving me several expletives, stated that his expletives would probably unfairly involve my mother and that to call me the names he was calling me would be unfair to my very nice parents. Both in the blogs and in the emails, I have been called every four letter word (and several with more letters).
It appears from the content of these communications that the following misconceptions were drawn by many who have not heard the entire chronological facts:
That Mr. Murphrey was not in any way responsible for my client having to entail my needless travel expenses and attorney’s fees;
That I knew of Mr. Murphrey’s hurricane damage and the horrors set forth in his September 26 letter and that despite that, I still wanted attorney’s fees (I did not know of his hurricane damage until I was already in Chicago and did not know of the extent of it until his September 26 letter);
That I was greedy and uncaring for Mr. Murphrey in demanding that Mr. Murphrey pay for my attorney’s fees (I was seeking these not on behalf of myself but on behalf of my client as required by my ethical obligations; as stated above, I am very sympathetic to Mr. Murphrey’s plight, but my client was not responsible for the needless attorney’s fees and expenses entailed in the travel).
Perhaps that I was not a man of his word or “had no word” as expressed by Mr. Murphrey in his letter of September 26. (As stated above, I made no agreement with Mr. Murphrey and I did not violate any agreement with him).
That I was unaccommodating and unprofessional to other lawyers as Mr. Murphrey states in his September 26 letter. (I did nothing except act professionally in trying to protect my client’s interests. I have been nothing but cooperative in this case relative to this and other depositions).
Apparently because of these misconceptions on the part of those who read Mr. Murphrey’s September 26 letter on blogs and emails, (people who had not even heard the entire set of events) such individuals decided that I was a very terrible person—and they let me know it. Unfortunately, they let the entire world know it as well on blogs and circulated emails.
Be careful what you put in letters, particularly in letters that may eventually be disseminated beyond those who were the intended recipients;
The importance of trial by jury and the rights entailed in that system of jury trial cannot be overstated. My “jurors”—those out on the blogs and on the email internet spaces—decided they would render a judgment on an individual and his law firm when they had an incomplete picture of the events and had at their disposal only a letter that includes emotional appeals and allegations as the basis of the verdict those “jurors” gave me. In this case, I was found to be guilty with no counsel to represent me, no evidence presented, and no cross-examination allowed. I was not even allowed to make a statement. I did not even know they were talking about me until several days after the poison was spread. I am now left to defend myself on my own website which many thousands who have read the poison will unlikely read.
I guess some might say it was just a funny letter. One might say: “I was just having fun when I disseminated it on the internet.” Your cute joke has had very large ramifications relative to me and every person in our small law firm. To those of you who reached judgments about me and particularly to those who spread their poison to others, I have spent almost 35 years in the practice of law obtaining and retaining a high reputation. To a great extent the fortunes of our law firm and everyone who works for the firm are dependent upon that reputation for their livelihoods. To attempt to destroy that reputation and harm the small law firm involved and all who are in it, is despicable, odious and evil.
The horrid nature of such a way of thinking and acting—making hateful judgments about people you do not even know, without any substantial basis, and without ever hearing their side of the events, and then passing on those hateful and libelous judgments to thousands of others to harm such people—cannot be tolerated in a free and just society. In this situation, lawyers on internet sites engaged in trial of the accused by mob rule without providing the accused counsel, without requiring evidence, without allowing cross-examination, and without allowing the accused to even testify! Lawyers did this! I say to you anonymous defamers and to you who express your hate to me that I have done nothing wrong. I hold my head high for the protection I have attempted to provide my client. I am very proud that I do not, like you, take poison pen in hand and harm the reputation of those I do not even know.
All of those who participated in the widespread dissemination of the September 26 letter, and particularly those internet users who felt they had to smear my name and the name of my law firm through their libelous comments to others, and all of those who sent hateful emails to me should be ashamed of themselves. Those who are attorneys should seek other callings. Their attitudes will not foster the cause of justice.
For those who do read this website statement, I would ask that you request that all those you know who have read the Jeff Murphrey September 26 letter read this website statement as well.
Thank you for your help in this matter.