Judge’s circle benefits from court work

Denton probate jurist says he goes by qualifications, not personal ties

Kevin Krause (kkrause@dallasnews.com)
May 26, 2005
The Dallas Morning News (TX)

In Denton County Probate Court, it helps to know Judge Don Windle.

His court has authorized more than $2.4 million in fees to a small group of lawyers and other professionals whom Judge Windle has repeatedly tapped for work on estates, trusts and guardianships over the last 11 years. Among them are the judge’s business partners as well as some longtime friends, including one who prepares his taxes and one who handles his legal affairs.

Judge Windle said he often chooses the same people because of their qualifications and experience. He said he doesn’t see a problem with appointing people to whom he has personal and professional ties.

“If I was appointing someone who wasn’t qualified over somebody who was, then that would be a legitimate beef,” said Judge Windle, who’s been on the bench since 1992.

His appointments highlight a system that allows a handful of professionals to earn substantial fees from court-approved probate work, with little scrutiny and no oversight of repeated appointments or total amounts of money earned in those cases.

The top six earners in Judge Windle’s court are among that handful of professionals. They and their firms earned $195,000 to $600,000 in court-approved payments from 1994 to 2004.

During that period, Judge Windle’s court approved fees for 192 individuals and firms. About 80 percent of them earned less than $20,000, according to state filings and a review by The Dallas Morning News of dozens of cases.

State judicial standards say judges should make impartial appointments and discourage judges from having financial dealings with those likely to appear in their courts.

“So much of this turns on the perception of the people who are participating in the system,” said Phoenix lawyer Mark I. Harrison, a legal ethics expert. “Anytime you have an arrangement that appears cozy … if it happens repeatedly, it can make the affected parties question the situation. They can’t put their finger on it, but it smells funny.”

Mr. Harrison is chairman of the American Bar Association’s Joint Commission to Evaluate the Model Code of Judicial Conduct and a member of the ABA’s Standing Committee on Ethics and Professional Responsibility. The commission is reviewing the ABA’s model ethics code for judges.

While Texas criminal law does not expressly prohibit judges from appointing friends or business associates, other states with stronger laws have criminally prosecuted judges for similar actions. In those states, some judges have been censured, reprimanded or removed from the bench for handing out lucrative appointments to friends and associates.

Records show that Judge Windle’s court reported $3.2 million in fees to the state from 1994 to 2004. Judge Windle approved 90 percent of those fees; the rest were handled by visiting judges or other Denton County judges filling in for him.

Those court-ordered fees are usually paid by family estates or trusts. But families aren’t the only ones who pay.

Denton County taxpayers have paid an average of $88,808 in court-appointee fees each year since 1996, when records became available. The county picks up the tab in probate court for mental health cases and for people who can’t afford to pay.

In one case in Judge Windle’s court, Fort Worth attorney David Bakutis is challenging more than $186,000 in fees that Judge Windle authorized for appointees, two of whom have ties to the judge. Mr. Bakutis was hired by Deborah Page, whose late husband’s estate case is still open more than eight years after his death.

In a court filing, Mr. Bakutis said his client believes the fees are unreasonable and worth more than the services provided. The fees went to a guardian for the woman’s daughter, an administrator for the estate and a trustee overseeing the daughter’s inheritance.

Roy Anderson, Judge Windle’s accountant who was hired by one of the judge’s appointees to handle the Page estate’s taxes, said he didn’t think the fees were excessive.

Judge Windle has not been accused of any wrongdoing. He has been elected to the bench three times without opposition. His last three campaign finance reports show no contributions. Earlier reports, including those during the years he was elected, were not available.

Jim Hartnett Jr., a Dallas probate attorney who has practiced in Judge Windle’s court, said parties involved in “messy cases” are usually to blame for high fees.

“People get emotional about their fight. The longer it goes, the more expensive it gets,” he said.

He said that probate law is specialized and that judges want experienced attorneys to handle the complexities.

“Denton has a pretty good size legal community, but it’s still small. You’ll see more relationships in Denton than in Dallas,” he said. “From my experience, Judge Windle is an exceedingly fair-minded, careful and hardworking judge.”

Top 6 earners

Since the state started keeping records in 1994, the following professionals and their firms have earned the most money in Judge Windle’s court, according to those records and a review of dozens of case files:

•Roy Anderson is the judge’s friend and personal accountant. His firm has earned at least $419,918 since 1995.

•Robert Widmer is the judge’s longtime friend and personal attorney. His former law partner Gray Shelton represented Judge Windle in a probate case after his wife died in 2001. A visiting judge presided over that case. The firm of Banks, Widmer & Shelton earned at least $357,323 from 1999 to 2004. Mr. Widmer left the firm at the end of 2004 and started his own practice. His former partners reorganized in January under a new name.

•David Bouschor, a Denton lawyer and friend of Mr. Anderson’s, has earned more than $602,383 since 1995.

•Duane Coker, a Denton lawyer who formerly handled personal injury cases, began receiving appointments in 2000. He has earned at least $260,667.

•Bonnie Robison and her husband and law partner, Doug, have earned more than $547,423 since 1994. Ms. Robison has recommended Mr. Widmer, Mr. Anderson and Mr. Coker for court-approved work.

•Camille Milner, a Denton attorney who represented Judge Windle in his divorce, has earned at least $195,855 since 1994.

Fees not reported

It’s difficult to know exactly how much money Judge Windle has approved for appointees and others.

Under a 1994 rule, probate courts must report appointment fees to the state, where they are available to the public. But no penalties exist for failing to do so.

Since the law went into effect, Judge Windle’s court has failed to report at least $600,000 in appointee fees to the top six earners and their firms, according to a comparison of state reports and case files reviewed by The News.

“That’s news to me,” Judge Windle said.

In addition, the 1994 reporting rule doesn’t apply to lawyers, accountants and others brought into cases to prepare tax forms or file lawsuits on behalf of estates and trusts.

They are often hired or recommended for a case by the court appointees. And their fees, which judges authorize by court order, can be even higher than the fees of appointees. In Judge Windle’s court, many of the top earners have ensured steady work for themselves through such referrals.

That type of secondary work caught the attention of Judicial Watch. The national watchdog group is best known for its role in politics, from the 2000 election controversy to Vice President Dick Cheney’s closed-door energy policy meetings to ethical questions about House Majority Leader Tom DeLay.

In Texas, it has launched an investigation of the state’s 16 probate courts after receiving repeated complaints to its Southwestern regional office in Dallas. Regional director Russell Verney said Judicial Watch is seeing a trend of probate judges rubber-stamping bills without first determining whether the charges are fair and justified.

“The primary concern of the courts is to pay without question the bills that are submitted” by appointees, he said of the group’s preliminary investigation. “Only when that is resolved is there consideration of the beneficiary.”

Legal specialty

Court appointees protect the legal interests of those who cannot handle their own affairs. They also manage estates and trusts when people die or become incapacitated or when family members disagree over control of loved ones or their assets.

Judge Windle said few lawyers are interested and qualified to work in probate court. He said lawyers often ask him to appoint certain people.

“We’ve got lawyers who have by reason of experience, background, training and expertise just gravitated to the probate court,” he said. “It’s a pretty specialized area.”

Last year, the state certified 60 lawyers for guardianship work in Denton County Probate Court. There are no state qualifications to serve as estate administrators, estate guardians or trustees of family trusts.

Mr. Widmer, Mr. Shelton and Mr. Coker did not return calls seeking comment.

The others say complex cases call for experienced litigators and ad litems to represent the incapacitated in probate court.

“There are a lot of attorneys out there who have no business doing probate,” Mr. Bouschor said. “I suspect I have a reputation for being a good probate litigator.”

Ms. Robison said she is usually appointed in complex, contested cases because of her experience. Typically, lawyers on both sides have agreed to her appointment, she said. “They want someone to stand in the middle and be fair to both sides.”

Ms. Milner said she’s tried to prevent cases she’s appointed to from dragging on.

“These are not cases I sought out or wanted. I was asked in certain cases … because of 20-plus years of expertise,” Ms. Milner said.

Others with personal ties to Judge Windle who have earned money through probate court include Judge Windle’s longtime friend Rick Woolfolk, with whom he owns an airplane; and real estate broker Mike Ramos, with whom Judge Windle’s family has invested.

At least one state has limited how much money court-appointed attorneys can earn.

New York attorneys who make more than $50,000 for guardianship work in a single year are ineligible for appointments the following year. A panel of judges passed the rule in 2002 in an effort to prevent favoritism and add accountability.

Texas code of conduct

Texas judicial canons state that judges must avoid the appearance of impropriety and must not allow any relationship to influence their conduct or judgment. Judges are required to make appointments impartially, without favoritism and “on the basis of merit,” according to the Texas Code of Judicial Conduct.

Mr. Anderson, who has averaged more than $64,000 per year in appointments for the last six years, said Judge Windle calls him for help because he has worked on large estate cases.

“One of the reasons why I trust the guy is that he’s my accountant; he does my tax returns,” Judge Windle said.

The canons in the Code of Judicial Conduct state that judges must not engage in financial or business dealings that involve them in frequent transactions with lawyers or others who are likely to appear before them in court.

Mr. Anderson, Mr. Woolfolk, Mr. Ramos and Mr. Widmer have had some involvement in or dealings with one or more of nine investment, real estate and aviation partnerships involving Judge Windle.

Judge Windle said he makes an effort to separate his personal life from work. He pointed out his partnership with Mr. Woolfolk in an aviation venture. Aviation, he said, is not likely to come before the court.

“It minimizes the chance that any conflict will ever exist,” he said.

Craig McDonald, executive director of Texans For Public Justice, a nonprofit watchdog group based in Austin, has documented cases where judges appoint campaign contributors.

“The same conflicts apply to judges who appoint those who provide professional services to the judges,” he said. “The practice from an ethical standpoint is troubling.”

Mr. McDonald said it raises questions about whether those services are market based, arms-length transactions.

“Would an attorney be giving the judge cut-rate legal services?” he asked.

Judge Windle said he pays the full price for services. Mr. Anderson confirmed that, saying he charges Judge Windle his regular fee.

Seana Willing, executive director of the State Commission on Judicial Conduct, which disciplines judges, said the safest course of action is full disclosure.

“Let the parties decide whether they want to recuse you, and then you’re covered,” she said.

“If that requires frequent recusals, the judges should divest themselves of that financial relationship.”

Judge Windle said he’s never recused himself in a probate case. He said he would disclose any relationships with appointees if their fees were challenged in court.

The judge said he is concerned about fees but has more pressing demands.

“My job as a probate judge is not to sit up here and keep a monetary accounting on who’s earning what,” he said. “I focus on the case and trying to get the individual case to move.”

WHAT IS PROBATE COURT?

Texas has 16 statutory probate courts in nine counties, including Denton, Dallas and Tarrant. The responsibilities of probate court fall into three basic areas:

ESTATES AND TRUSTS: When people die, their wills are admitted to probate court so that assets and property can be distributed among the beneficiaries after all debts and expenses are paid. If a will’s intent is unclear, a probate court must interpret it. If there is no will, the court must distribute the assets. If someone challenges a will, the court must decide its validity. Probate courts also supervise trusts and decide their validity if disputed.

GUARDIANSHIPS: When adults or children are mentally or physically incapable of handling their personal and financial affairs, a probate court can appoint a guardian. Family members also can initiate guardianship. If guardianship is challenged, the court must decide whether it is warranted and, if so, who should serve as guardian. In addition to a guardian, the judge typically appoints someone to manage the person’s estate and an attorney to make legal decisions for the incapacitated person.

Involuntary commitment of the mentally ill: The court must determine whether someone is mentally ill and, if so, where to place them and for how long.

NOTE: The Denton County Probate Court is one of two probate courts in Texas that has the added responsibility of handling condemnation of land under eminent domain law. If a city needs land and cannot agree with the landowner on a price, the city will file suit in probate court to take the land. The court will then determine a fair price for the land.

SOURCES: Texas Judiciary Online; Dallas Morning News research

TEXAS CODE OF JUDICIAL CONDUCT

The following are among eight rules that serve as basic standards of conduct for judges:

Canon 2: “A judge shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”

Canon 3: “A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.”

Canon 4: “A judge shall conduct all of the judge’s extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; or (2) interfere with the proper performance of judicial duties. …

“A judge shall refrain from financial and business dealings that tend to reflect adversely on the judge’s impartiality, interfere with the proper performance of the judicial duties, exploit his or her judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves. …

“A judge should manage any investments and other economic interests to minimize the number of cases in which the judge is disqualified. As soon as the judge can do so without serious financial detriment, the judge should divest himself or herself of investments and other economic interests that might require frequent disqualification.”

SOURCE: Texas Commission on Judicial Conduct

Graphic: A closer look at probate court
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