RESPONDENT’S AND THIRD-PARTIES REPLY TO PETITIONER’S RESPONSE TO MOTION FOR SANCTIONS COME NOW, Respondent Michael G. Brown, Third-Parties Brown Medical Center, Inc., Superior Vehicle Leasing Company, Inc., Texas Hand Therapy Center, Inc., d/b/a The Hand Center, MG Brown International, L.L.C., MG Brown Investment Group, L.L.C., Prorentals, Inc., Lionheart Company, Inc., and Castlemane, Inc. (collectively, “the Corporate Third Parties”), and Third Party BHCF, LLC, and file this their Reply to Petitioner’s Response to Motion for Sanctions, and would respectfully show the Court as follows: INTRODUCTION After Marshall Davis Brown, Jr., received Respondent and Third Parties’ Motion for Sanctions, he cornered Robert C. Kuehm, co-counsel for Respondent, and told him, “You’d better pull down that motion, or I’m coming after you.” In his surreal “Response,” (in which Petitioner judicially admits that her counsel’s conduct squarely and willfully violates the TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT) Mr. Brown did exactly that - “coming after” Mr. Kuehm in an attempt to deflect from his own deplorable conduct. Mr. Brown

also attacks Phillip Hilder, co-counsel for the Corporate Defendants, seeking sanctions against Mr. Hilder personally. Respondent and Third Parties would respectfully show the court that Mr. Brown’s conduct in this case is part of a decades-long pattern of conduct grounded in misogyny and bigotry, and implore this Court to stop him. I. This court should look at the Rules of Professional Conduct, which govern us all, to address a lawyer’s sacred duties with respect to conduct in their very Preamble, noting, “A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.” TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT 5.08 provides : (a) A lawyer shall not willfully, in connection with an adjudicatory proceeding, except as provided in paragraph (b), manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity. (b) Paragraph (a) does not apply to a lawyer’s decision whether to represent particular person in connection with an adjudicatory proceeding, nor to the process of jury selection, nor to communications protected as confidential information under these Rules. See Rule 1.05(a),(b).It also does not preclude advocacy in connection with an adjudicatory proceeding involving any of the factors set out in paragraph (a) if that advocacy: (i) is necessary in order to address any substantive or procedural issues raised by the proceeding; and


is conducted in conformity with applicable rulings and orders of a tribunal and applicable rules of practice and procedure.1

To his limited credit, Mr. Brown makes no attempt to defend his comment - and apparently admits - that he asked female opposing counsel if she would like him “to examine her breasts for lumps.” Nor does he (nor could he) explain why it was permissible for him to say to opposing female counsel, while standing in the courtroom after he had been handserved with a copy of a pleading, that he had “never been so ashamed of a white woman.” He misstates the fact surrounding his suggestion that he share a hotel room with one female counsel on an upcoming trip, as that comment was made directly to her in the presence of multiple other attorneys at a deposition. As to the rest of his slurs, Mr. Brown offers the following “defenses” - none of which excuse him from “manifesting, by conduct…discrimination based on sex:”  The “I-Didn’t-Have-the-Guts-to-Say-it-to-Her-Face-So-I-Disparaged-Her-toHer-Co-Counsel” Defense Mr. Brown could not, as an officer of the court, deny that he referred to female opposing counsel by the slurs contained in Respondent’s/Third Parties’ Motion. While Movants contest Mr. Brown’s version of the facts, and will present contrary evidence at the time of hearing, Mr. Brown admits, at a minimum, to making the comments to female opposing words or


The comments to the Rule are very clear: Subject to certain exemptions, paragraph (a) of this Rule prohibits willful expressions of bias or prejudice in connection with adjudicatory proceedings that are directed towards any person involved with those proceedings in any capacity. Because the prohibited conduct only must occur “in connection with” an adjudicatory proceeding, it applies to misconduct transpiring outside of as well as in the presence of the tribunal’s presiding adjudicatory official. Moreover, the broad definition given to the term “adjudicatory proceeding” under these Rules means that paragraph (a)’s prohibition applies to many settings besides conventional litigation in federal or state courts TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 5.08, cmt 1.(emphasis supplied).


counsel’s male counterparts, thus clearly “manifesting, by words and conduct, discrimination based on sex.”2 Mr. Brown apparently now directs much of his ire toward Messrs. Kuehm and Hilder, but clearly fails to get the point…that the word “cunt” is equally offensive to men and women. That Messrs. Kuehm and Hilder should not be forced to choose between being honest with their co-counsel or being branded as the real malfeasors for republishing his vile comments. And that it is inappropriate, under any Amendment, for Mr. Brown to demean legal professionals to their co-counsel with a litany of hate and slurs. Mr. Brown also concedes that his “private” text message to Respondent’s counsel, Mr. Kuehm, referred to opposing female counsel as a “bitch” and said “Daddy like…”3 What he does not disclose about the text message is that it clearly invokes this court and its process; in between the comments noted above, and as will be demonstrated at the hearing, Mr. Brown writes that he “can’t wait to get [this bitch] in front of [the honorable Judge of this Court],” implying his ability to improperly influence this Court. Moreover, for decades, and as Movants will demonstrate at the time of the hearing, Mr. Brown has directly invoked the use of such slurs as a “tactic” in court to unnerve, insult, and demean female lawyers. Moreover, Movants would show that, as he admits in his Response, Mr. Brown’s

comments were made in a transparent attempt to influence and/or impair female opposing counsel’s representation of their respective clients. When, for example, Ms. McDowell legitimately questioned Respondent’s counsel’s apparently fraudulent bills4 (including double


While Movants can’t prove it conclusively, they are fairly certain that Mr. Brown would not refer to a male as a “cunt” or a “flat-chested bitch..” 3 Mr. Brown was apparently “Daddy” in his scenario. 4 Under this Court’s Order, Petitioner must pay Respondent’s legal fees, and has, to date, paid both Mr. Brown and co-counsel, Robert S. Hoffman, more than $2 million.


time entries and impossible amounts of time billed in the same twenty-four hour period), she was hit - by Mr. Brown’s own admission - with the “dear” and “dumbshit” comments.  The “She-Asked- for- It-By-Wearing-that-Dress” Defense In a truly Stone-Age paragraph, Mr. Brown alleges that it was permissible for him to refer to opposing counsel Ms. Lovett as a prostitute because she was “immodestly dressed.”5 Ms. Lovett’s attire at the deposition in question (a black, knee-length suit that has seen duty in multiple jurisdictions in state and federal court and has never previously gotten her called anything but “Counsel”) is not really the point. Rather, the reference thereto is Mr. Brown’s misogyny laid bare - he actually seems to think it is a “case-closed” argument to suggest that he, in his demonstrated good taste and wisdom, can assess the clothing of opposing counsel, and, if he deems it “immodest,” can unleash whatever type of vitriol he sees fit. Movants implore this Court not to adopt or endorse this standard for behavior.  The “I-Haven’t-Read-the-State-Bar-Rules-Lately-But-I’m-Pretty-Sure-This-isUnconstitutional” Defense Mr. Brown carefully maintains that his comments were “neither uttered in a courtroom nor during court proceedings.” First, this statement is untrue: as all of the comments took place at depositions, hearings, and in one case, directly in a courtroom.. The statement offering to “check [female opposing counsel’s] breasts for lumps” took place during a deposition, while a witness adverse to the affected lawyer’s client was actually testifying, but out of earshot of the court reporter. But at a minimum, it demonstrates the full extent of Mr. Brown’s cowardice. He fully knows that if the comments he has admitted making were made

The incident in question took place at a hotel in Miami, where Mr. Brown insisted on holding the deposition, despite Ms. Lovett’s offer of her firm’s Miami offices. Mr. Brown does not explain how, if he “did not know who Ms. Lovett was” - and therefore thought it appropriate to refer to her as a paid escort - he had sent Mr. Kuehm a text message referring to her as a “bitch” some six weeks before.


within earshot of an adjudicatory officer or in the courtroom, they would be afforded no protection whatsoever. The male lawyers in this case have actually found themselves

discussing how to rearrange schedules to make certain that their female colleagues will not have to be alone with Mr. Brown - a stunning colloquy to have in 2012. Mr. Brown also chastises Movants for failing to cite case law squarely on point with his conduct, and on that point, Movants will yield; despite exhaustive multi-jurisdictional research, Movants were unable to find any case in which a member of the Bar had made such unbelievably sexually-based comments to fellow members of the Bar. Mr. Brown is peerless in his misconduct.  The “I’m-Now-Going-To-Throw-in-An-Irrelevant-Deposition-Excerpt” Defense Mr. Brown includes, as a “true” example of interfering with the administration of justice, an excerpt from a transcript in which Third-Parties’ Co-Counsel, Philip Hilder, was seeking to clarify a deposition in which the words “flight school” may have been transcribed as “high school.” Mr. Brown begins this salvo with an outright lie: there has been no order of “sanctions” entered against Respondent or Third Parties requiring them to deposit $750,000 in the registry of the court.. Instead, the discovery master ordered that Respondent, who is paying the fees for all parties, deposit, for the benefit of all parties, monies into the registry of the Court to address discovery costs, including the fees of the discovery master. Mr. Hilder never “lost face” over any “sanctions” order; first, because there was not one, and second, because he was not even involved in the arguments surrounding the deposit. The complete non sequitur presented by counsel’s argument regarding the discussion of the mistranscription of “high school” over “flight school,” is baseless, because Mr. Hilder

was correct - the deponent, a pilot, in his deposition at page 3, describes his training at “a regular country bumpkin East Texas flight school.” The Court may wonder why Mr. Brown’s response veers off into this territory at all. The answer is obvious: Mt. Brown is desperate to shift this Court’s focus away from his own comments. Indeed, Mr. Brown’s decision to single out Mr. Hilder as his target for “sanctions” in the “response” is as perplexing as everything else contained therein; he is one of eight lawyers listed on the Movant’s pleadings. Mr. Hilder did not make any racial, religious, or gender-based slur, and the entire exchange is a dispute among counsel about whether there is an innocuous transcription error in a deposition, wholly irrelevant to the issue at bar, which is simply: Will this court endorse Mr. Brown’s self-granted “right” to refer to female opposing counsel by some of the most vile terms in the English language in connection with an adjudicatory proceeding?  The “Those-Mean-Lawyers-Have-Said-Bad-Things-About-My-Client” Defense Mr. Brown avers that statements made about his client, Rachel Brown, constitute misconduct equal to his own on the part of Mr. Kuehm (whom he threatened to “come after” if the instant motion wasn’t withdrawn) . The fact that Mr. Kuehm has questioned Petitioner’s drug use or asked whether the drug-test technician - on the witness stand whether he was able to obtain a pubic-hair sample (as ordered by this Court) from which to test for narcotics, is irrelevant to the instant motion, as are any alleged comments made by Mr. Kuehm in other contexts not related to these proceedings. They are simply (1) Mr. Brown attempting to make good on his promise to “get” Mr. Kuehm for refusing to

withdraw the motion; and (2) a pathetic attempt at deflection and obfuscation. But what Mr. Brown overlooks is the true affront to justice: the substantive legal issues in this case are being rendered irrelevant at the moment because Movants are compelled to seek this Court’s protection from Mr. Brown’s heinous conduct. The administration of justice is being impaired, but not by this “frivolous” motion. This Motion is far from “frivolous,” it is essential, and the fact that Mr. Brown cannot see that makes Movants’ case for them. II. Movants are seeking the protection of this Court. In this proceeding, both male and female counsel are simply members of the Bar, attempting to do their jobs free of verbal sexual assaults from a 30-year member of the Bar. What Mr. Brown has done - and

apparently, believes he has the Constitutional right to continue doing, unless this
Court intervenes - demeans not only the administration of justice by this Court, but the system of justice as a whole. His decades-long pattern of conduct - unchecked because the intimidation has previously worked - is what threatens to give the decent, fair, collegial and hard-working lawyers of the State of Texas a bad name. Movants implore this Court to reject Mr. Brown’s spurious “defenses,” stand up against his model of intolerance and bigotry, and impose proper sanctions to allow this case to move forward. WHEREFORE, premises considered, in advance of further proceedings in this case, Moving Counsel respectfully ask that this court enter an order  Admonishing Mr. Brown from making sexually-based remarks to opposing counsel;  Admonishing Mr. Brown not to make disparaging remarks based on gender, race, or ethnic origin in the course of his representation;  Referring Mr. Brown to the Texas Lawyers Assistance Program

 Requiring Mr. Brown to file a copy of this Court’s order granting sanctions with any first appearance in any court for a period of one year;  Directing Mr. Brown to make a $1,000 donation to the Houston Area Women’s Shelter (or other appropriate charity of the court’s choosing) as a sanction for his conduct; and  For such other and further relief as the court deems necessary for the administration of justice.


Respectfully Submitted, LAW OFFICES OF JEANNE CALDWELL MCDOWELL. /s/ Jeanne Caldwell McDowell Jeanne Caldwell McDowell State Bar No.: 00789194 Rebekah H. Birdwell State Bar No.:24053052 603 Avondale Houston TX 77006 Telephone: (713) 655-9595 Facsimile: (713)-655-1725 LAW OFFICES OF ROBERT C. KUEHM, P.C. Robert C. Kuehm State Bar No.: 11752400 Robert Ian Kuehm State Bar No.: 24056965 8441 Gulf Freeway, Suite 600 Houston, Texas 77017 Telephone: (713) 861-6166 Facsimile: (713) 230-2221 ATTORNEYS FOR MICHAEL G. BROWN HILDER & ASSOCIATES, P.C. /s/ Philip H. Hilder Philip H. Hilder State Bar No. 09620050 Stephanie McGuire – Of Counsel State Bar No. 11100520 819 Lovett Boulevard Houston, Texas 77006-3905 Telephone: 713-655-9111 Facsimile: 713-655-9112 Email: Email: ATTORNEYS FOR THIRD PARTY RESPONDENTS: BROWN MEDICAL CENTER, INC, SUPERIOR VEHICLE LEASING COMPANY, INC. TEXAS HAND THERAPY CENTER, INC. D/B/A/ THE HAND CENTER


GREENBERG TRAURIG, L.L.P. /s/Mary-Olga Lovett____ Mary-Olga Lovett State Bar No.: 00789289 Paul J. Brown State Bar No. 24006913 Pamela Ferguson Sperber State Bar No. 24059743 1000 Louisiana, Suite 1700 Telephone: 713.374.3500 Facsimile: 713.374.3505 Email: Email: Email: ATTORNEYS FOR BHCF, LLC


CERTIFICATE OF SERVICE I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on May 13, 2012. Marshall Davis Brown, Jr. PAVLAS , BROWN, LLP 3040 Post Oak Blvd., Ste. 1020 Houston, Texas 77056 For Petitioner Robert S. Hoffman LAW OFFICES OF ROBERT S. HOFFMAN 6575 West Loop South, Suite 496 Bellaire, Texas 77401 Mr. Robert C. Kuehm ROBERT C. KUEHM, P.C. 8441 Gulf Freeway, Suite 60 Houston, Texas 71017 For Respondent Ms. Jeanne Caldwell McDowell Ms. Rebekah H. Birdwell LAW OFFICE OF JEANNE CALDWELL MCDOWELL 603 Avondale Houston TX 77006 Philip H. Hilder Stephanie McGuire – Of Counsel HILDER & ASSOCIATES, P.C. 819 Lovett Boulevard Houston, Texas 77006-3905 Ms. Claudia Canales LAW OFFICE OF CLAUDIA CANALES, P.C. 2112 Grand Blvd. Pearland, Texas 77581 Amicus Attorney /s/Mary-Olga Lovett____ Mary-Olga Lovett