SEX, BLACKMAIL, AND THE RULES OF CIVIL PROCEDURE

In a real life Texas drama we find similarities to Rudyard Kipling’s The Man Who Would Be King. 

 

Mary Alice Robbins – Texas Lawyer 

Two San Antonio, Texas, lawyers, married to each other, face a trial on theft charges based on allegations that the wife had sexual liaisons with four men whom the husband subsequently threatened with litigation unless they compensated him for his emotional distress. 

The trial in State v. Mary Roberts, Ted Roberts is scheduled to begin on Feb. 12 before Judge Sid Harle in San Antonio’s 226th District Court. 

A Bexar County grand jury first indicted the two lawyers on the theft charges in 2005, identifying the four men who are the complainants only by their initials. A second Bexar County grand jury reindicted the couple in 2006, this time naming the four men: Steve Riebel, Geoffrey Ferguson, Paul Fitzgerald and Reagan Sakai. 

The second indictments allege that Mary and Ted Roberts unlawfully appropriated the four men’s money by deception and by coercion. According to the indictments, the alleged offenses — violations of Texas Penal Code §§31.01 and 31.03 — occurred between Oct. 1, 2001, and April 2, 2002. 

Cliff Herberg, Bexar County’s first assistant district attorney, says the allegation is that the wife had sexual liaisons with the men and her husband subsequently approached them to demand payments or he would expose them to hatred, contempt and ridicule. 

Riebel, Ferguson and Sakai did not return telephone calls seeking comment before press time. “It’s a very personal matter,” Fitzgerald says, declining further comment. 

At least one of the men met Mary Roberts online. 

“My client had some information posted on a Web site, and he was contacted by Mary Roberts,” says Van G. Hilley, who represents Riebel. 

Hilley, a partner in San Antonio’s Goldstein, Goldstein & Hilley, says Riebel had a relationship with Mary Roberts and thought he had settled the matter with her husband. “He was very sorry that it happened,” Hilley says. 

Herberg says Ted Roberts collected about $144,000 total from the four men. If the jury finds Mary and Ted Roberts guilty of theft, each could be convicted of a second-degree felony, punishable by up to 20 years in prison and up to a $10,000 fine. 

Ted Roberts, principal in Ted H. Roberts in San Antonio, is certified in personal injury law and civil trial law by the Texas Board of Legal Specialization, according to the State Bar’s Web site. As noted on that Web site, Mary Roberts’ primary areas of practice include ethics and legal malpractice, law office management, real estate and wills, and trusts and probate. She is an attorney in her husband’s firm. 

San Antonio solo Michael McCrum, who represents the couple, contends Ted Roberts presented the men with whom his wife had the affairs with demand letters and copies of petitions that Ted Roberts proposed to file under Rule 202 of the Texas Civil Rules of Procedure in contemplation of filing a suit for intentional infliction of emotional distress. 

“He found out about the affairs, and he was incensed,” McCrum says of Ted Roberts. 

McCrum says that instead of beating the men up, like some husbands would do, Ted Roberts chose to present them with the demand letters and petitions. He says Roberts told the men that he could file a tort claim against each of them for having the affairs with his wife. 

“They settled; their wives didn’t know this had happened,” McCrum says. 

McCrum contends the state is trying to prosecute his clients for something that civil lawyers do all the time — send demand letters and present petitions they plan to file under Rule 202. 

“By stretching statutory words to an unprecedented interpretation, the state seeks to criminalize as “theft the presentment and subsequent settlement of potential claims authorized under the Texas Rules of Civil Procedure,” Mary and Ted Roberts alleged in one of several motions to quash their indictments that Harle dismissed in October 2006. 

McCrum says the outcome of his clients’ case could impact every civil lawyer in Texas who writes a demand letter. “Their demand letters can come under attack by a DA,” he contends. 

“We dispute that version of the facts,” Herberg says. “If we thought this was something that all lawyers do, they wouldn’t have been charged.” 

TWO THINGS 

Rod Phelan, a commercial trial lawyer and partner in Baker Botts in Dallas, says lawyers are supposed to use Rule 202 for two things: to investigate whether they have a claim or to preserve testimony of a witness who would not be available to testify because the witness either is dying or is leaving the jurisdiction. 

Ted Roberts’ use of Rule 202 “sounds like an odd use of the rule,” Phelan says. But he adds, “That doesn’t have anything to do with whether it’s criminally actionable.” 

Phelan says there is “a kernel of truth” in the point that McCrum is making. “The line between extortion or blackmail and making a demand to settle a colorable claim is gray,” he says. “What seems to a defendant as extortion or blackmail may seem to the plaintiff as a bona fide claim.” 

Bill Dorsaneo, a Southern Methodist University Dedman School of Law professor who teaches and writes on Texas civil procedure, says demand letters that lawyers write have been regarded as privileged. 

Dorsaneo says he’s surprised that the criminal law would allow the criminal prosecution of a lawyer for doing something that would be privileged in the civil context. “I’m not sure it’s a good idea,” he says. 

The couple argued in their motions to quash that the theft statute is unconstitutionally vague and/or overly broad and that the indictment failed to state an offense. McCrum says Harle dismissed the motions without prejudice, and he says he will re-urge the motions at the end of the state’s case. 

Herberg says the theft statute has been around for a long time. “We don’t think it’s vague,” he says. 

Williamson County District Attorney John Bradley, who has followed the case, says he thinks the theft provisions in the Penal Code are the “best fit” for prosecuting Mary and Ted Roberts. 

“You obviously have to get a jury to believe the lawyer [Ted Roberts] was manipulating the legal system to get that money,” Bradley says. 

Bradley says he doesn’t think it’s a good argument to contend that Ted Roberts merely did what civil lawyers do all the time when Roberts presented his demand letter and petition to each of the men who had a relationship with his wife. 

“The unique thing going on here is he [Ted Roberts] was litigating for himself,” Bradley says. 

 

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