FEE SHARING AGREEMENT OF DISBARRED LAWYER FOUND ILLEGAL AND VOID
Cruse v. O'Quinn (Tex.App.- Houston [14th Dist.] Nov. 25, 2008)(Brown)
(attorney fee sharing agreement void as against public policy, voiding illegal contract, unenforceable contract)
we hold that O'Quinn carried its summary-judgment burden to demonstrate as a matter
of law that FSA is illegal and void as against the public policy of Texas as expressed
in the case law and the disciplinary rules discussed above, because Cruse is
prohibited from receiving fees on cases subject to the FSA that were not settled or
otherwise finally resolved before Leonard Cruse was suspended and disbarred. See,
e.g., Villanueva v. Gonzalez, 123 S.W.3d 461, 466 (Tex. App.- San Antonio 2003, no
pet.) (holding that an agreement to split fees between an attorney and a person not
either licensed as a bail bond surety or as an attorney was illegal); Plumlee v.
Paddock, 832 S.W.2d 757, 760 (Tex. App.- Fort Worth 1992, writ denied) (affirming
summary judgment against non-lawyer on alleged referral contract as illegal and void
as against public policy).
AFFIRMED: Opinion by Justice Brown
(Before Chief Justice Hedges, Justices Guzman and Brown)
14-08-00103-CV Leonard A. Cruse and Cruse and Associates, P.C. v. John M. O'Quinn and John M.
O'Quinn & Associates, L.L.P.--Appeal from 212th District Court of Galveston County
Trial Court Judge: Susan Elizabeth Criss
O P I N I O N
In this accelerated, interlocutory appeal, appellants Leonard A. Cruse and Cruse and Associates, P.C.
(collectively, “Cruse"), appeal the trial court's grant of appellees' motion for partial summary judgment as to
Cruse's claims arising out of a fee-sharing agreement (AFSA"). In their motion, appellees, John M. O'Quinn
and John M. O'Quinn & Associates, L.L.P. (collectively, “O'Quinn") asserted the affirmative defense that the
FSA was illegal and void because Cruse was prohibited by Texas law from recovering fees under the FSA on
cases that were not settled or otherwise finally resolved before Leonard Cruse was suspended from the
practice of law and, ultimately, disbarred. Cruse contends that (1) O'Quinn failed to satisfy its summary-
judgment burden to prove its affirmative defense, (2) Cruse presented evidence raising a genuine issue of
material fact precluding summary judgment, and (3) the trial court misapplied the summary-judgment rules
and standards. We affirm.
Factual and Procedural Background
On April 9, 2004, attorney Leonard Cruse and his law firm, Cruse and Associates, P.C. (the “Cruse law firm"),
entered into the FSA with the law firm of John M. O'Quinn & Associates, L.L.P. (the “O'Quinn law firm").
Under the FSA, the parties agreed to provide joint representation and to share legal fees earned on certain
of Cruse's cases pending on the effective date of the FSA, as well as on cases Cruse later acquired that he
referred to the O'Quinn law firm and that met certain specifications. Each case was to be classified based
on the amount in controversy, the venue, and the origin of the case. The duties of each party and the
division of fees were determined by a case's classification.
The FSA provided that “the parties intend at all times to comply with Rule 1.04 of the Texas Disciplinary
Rules of Professional Conduct (hereinafter ADR 1.04")." Further, regardless of a case's classification or the
duties assigned based on that classification, each party expressly agreed to assume joint responsibility for
the representation “as provided in DR 1.04."
The FSA also provided that it would terminate upon the occurrence of any one of several events, including
“the disability or inability of Cruse to legally practice law in the State of Texas." It further provided that, in the
event of termination, pending cases would continue to be subject to the FSA until they were concluded and
all fees and expenses were paid, although Cruse would receive a lesser percentage in some cases:
B. Once the Agreement terminates all future cases thereafter introduced to and acquired by Cruse shall not
be subject to this Agreement; provided however, that notwithstanding anything to the contrary contained
herein the Cases that were subject to the Agreement as of the effective date of termination shall continue to
be subject to the Agreement until the Cases are concluded and all fees and expenses are accounted for and
C. If the Agreement is terminated because of the death or disability of Cruse or the inability of Cruse to
legally practice law, all of the Cases filed in Galveston County (i.e. the “G" type Cases) shall be treated for
the purposes of the division of fees as though they were “NG" type Cases. . . .
Just over a year after executing the FSA, on May 19, 2005, Leonard Cruse was suspended from the practice
of law. On June 10, 2005, Mr. Cruse was disbarred.
In 2006, Leonard Cruse filed suit against John O'Quinn individually, seeking an accounting of referral fees
and expenses allegedly due under the FSA, and alleging claims for breach of contract, fraudulent
inducement, unjust enrichment, and negligence. Mr. Cruse later amended his petition to add the O'Quinn law
firm as a defendant. In a second amended petition, the Cruse law firm was added as a plaintiff, and the
plaintiffs added an allegation of alter ego and a claim for punitive damages to the claims previously asserted.
O'Quinn answered, asserting general denials and numerous affirmative defenses, including a claim that
Cruse's claims under the FSA were barred by the doctrine of illegality and were void as against the public
policy of Texas.
In 2007, O'Quinn filed a motion for partial summary judgment as to Cruse's claims under the FSA. Several
months later, O'Quinn also filed a motion to abate the proceedings as to the Cruse law firm on the grounds
that its corporate existence had been forfeited for failure to pay franchise taxes. The trial court heard oral
argument on O'Quinn's motions, and on January 4, 2008, signed an order granting O'Quinn's motion to
abate, ordering that the case be abated as to the Cruse law firm until April 14, 2008, at which time the Cruse
law firm's pleadings would be dismissed if the firm was not in good standing. The trial court also signed a
separate order granting O'Quinn's motion for partial summary judgment on Cruse's claims under the FSA.
The court further ordered that this order met the requirements for an appealable, interlocutory order
pursuant to Texas Civil Practice and Remedies Code section 51.014(d). See Tex. Civ. Prac. & Rem. Code
Ann. § 51.014(d) (Vernon 2008). This appeal followed.
Analysis of Cruse's Summary Judgment Issues
Cruse contends generally that the trial court erred in granting summary judgment, and specifically argues
that (1) O'Quinn failed to satisfy its summary-judgment burden to prove its affirmative defense that the FSA
was illegal and void as against Texas public policy, (2) Cruse presented evidence raising a genuine issue of
material fact precluding summary judgment, and (3) the trial court misapplied the summary-judgment rules
and standards. However, before we reach Cruse's issues, we address O'Quinn's contention in its appellate
brief that the Cruse law firm is not a Texas corporation in good standing and is therefore not entitled to seek
1. Is the Cruse law firm barred from appealing the trial court's judgment?
As a threshold matter, O'Quinn contends that the forfeiture of the Cruse law firm's corporate charter has
stripped it of its right to bring this appeal. See Tex. Tax. Code Ann. §171.252 (Vernon 2008) (providing that
if the corporate privileges of a corporation are forfeited under this subchapter, “the corporation shall be
denied the right to sue or defend in a court of this state."). Cruse does not respond to this contention, and
nothing in the record reflects that the Cruse law firm's charter has been revived. And, given that Leonard
Cruse is the sole owner of the law firm and he has been disbarred, it is unlikely that the corporation could be
revived or its corporate privileges reinstated during the pendency of this appeal.
However, in Vanscot Concrete Co. v. Bailey, the Texas Supreme Court held that a corporation that had
ceased to exist could nevertheless appeal a trial court's judgment against it. See 853 S.W.2d 525, 526-27
(Tex. 1993) (per curiam). The court expressly disagreed with the court of appeals's dismissal of Vanscot
Concrete's appeal on the grounds that a nonexisting appellant cannot appeal, explaining that “corporations
have the same right to have judgments against them revised by the appellate courts as have persons, and
that even extinguished corporations are entitled to a hearing before the appellate courts." Id. at 526 (citing
Tex. Trunk Co. v. Jackson, 85 Tex. 605, 22 S.W. 1030, 1032 (1893)). Although Vanscot Concrete was a
defendant appealing an adverse judgment against it, rather than a plaintiff appealing a summary judgment
granted in favor of a defendant, and the specific Tax Code provision O'Quinn cites was not at issue, we
conclude that the outcome should be no different here. As the Court broadly stated, "the reasoning for
allowing a corporation which has ceased to exist to prosecute an appeal is applicable in any circumstance."
Further, even the cases O'Quinn cites in support of its argument recognize that Tax Code section 171.252
does not prevent a corporation that has forfeited its corporate privileges from defending claims against it.
See Mello v. A.M.F. Inc., 7 S.W.3d 329 (Tex. App.- Beaumont 1999, pet. denied) (stating that, despite the
clear language of section 171.252, “the statute has historically been limited to prohibit defendants from
bringing cross actions, not from merely defending lawsuits); Hardwick v. Austin Gallery of Oriental Rugs, Inc.,
779 S.W.2d 438, 441 (Tex. App.- Austin 1989, writ denied), superseded on other grounds by statute as
stated in Bair Chase Prop. Co., L.L.C. v. S & K Dev. Co., Inc., 260 S.W.3d 133 (Tex. App.- Austin 2008, pet.
filed) (rejecting contention that section 171.252 is jurisdictional and further noting that a corporate defendant
that has failed to pay franchise taxes may nevertheless set up purely passive defenses, its answer may not
be stricken, and the corporate defendant may offer evidence that negates a plaintiff's claim). Here, although
the Cruse law firm was a plaintiff below, in the procedural posture before us, it is not seeking affirmative
relief. Instead, it is appealing a trial court's grant of partial summary judgment against it, much like Vanscot
Concrete sought to appeal an adverse judgment following a jury trial.
In this situation, we are guided by the Texas Supreme Court's reasoning in Vanscot Concrete that “even
extinguished corporations are entitled to a hearing before the appellate courts." See 853 S.W.2d at 526.
We will therefore address the merits of the Cruse law firm's appeal.
2. Standard of review.
We review the trial court's grant of summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.
W.3d 150, 156-57 (Tex. 2004). To prevail on a traditional motion for summary judgment, the movant must
show that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of
law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); Aguirre v.
Vasquez, 225 S.W.3d 744, 750 (Tex. App.- Houston [14th Dist.] 2007, no pet.). A defendant moving for
summary judgment must conclusively negate at least one essential element of each of the plaintiff's causes
of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez,
941 S.W.2d 910, 911 (Tex. 1997); Shirvanian v. DeFrates, 161 S.W.3d 102, 106 (Tex. App.- Houston [14th
Dist.] 2004, pet. denied). We take as true all evidence favorable to the non-movant, and we indulge every
reasonable inference and resolve any doubts in the non-movant's favor. Joe, 145 S.W.3d at 157; Aguirre,
225 S.W.3d at 750. We review a summary judgment for evidence that would enable reasonable and fair-
minded jurors to differ in their conclusions. Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.
2006) (per curiam) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822-23 (Tex. 2005)).
3. Did the trial court err in granting partial summary judgment in favor of O'Quinn?
Turning to the merits of Cruse's appeal, we address Cruse's contention that the trial court erred in granting
O'Quinn's motion for partial summary judgment, and the specific arguments raised in his brief.
a. O'Quinn demonstrated that the FSA was illegal and void.
First, Cruse contends that O'Quinn failed to demonstrate as a matter of law that the FSA - which O'Quinn
drafted - was illegal and void as contrary to public policy. Therefore, Cruse maintains, the burden never
shifted to it to raise a fact issue. We disagree.
In the motion for partial summary judgment, O'Quinn pointed out that, under the FSA, the parties agreed to
share professional fees and expenses on certain cases in accordance with DR 1.04, with each party
assuming joint responsibility for the representation. Because the FSA was conditioned expressly upon
Leonard Cruse and the Cruse law firm maintaining their respective capacities to practice law in Texas,
O'Quinn contended that Cruse could not legally collect any fees due under the FSA on any cases that were
not settled or that were otherwise unresolved until after Leonard Cruse was suspended and then disbarred.
To support this contention, O'Quinn primarily relied upon the precedent of Royden v. Ardoin, 160 Tex. 338,
331 S.W.2d 206 (1960), and Lee v. Cherry, 812 S.W.2d 361 (Tex. App.- Houston [14th Dist.] 1991, writ
denied). In Royden, the Texas Supreme Court held that when an attorney - prior to the completion of his
contingent-fee contract - is disbarred or suspended, he is not entitled to collect either on the contract or in
quantum meruit for the services, if any, that have been rendered. 331 S.W.2d at 209. The court held that
an attorney's disbarment or suspension “is considered tantamount to and to have the same effect as a
voluntary abandonment, for the attorney by knowingly and willfully practicing such a course of conduct that
would lead to the termination of his right to practice, renders it impossible to complete the work that he
engaged to perform." Id. In Lee v. Cherry, this court held that voluntary abandonment only applies to those
situations in which the attorney has not completed the legal services prior to disbarment. See 812 S.W.2d at
363. Because Lee, whose only involvement was to refer the case to another lawyer, had completed all of his
duties under the referral-fee contract prior to surrendering his law license, the court reversed the summary
judgment granted on Cherry's affirmative defense. Id. at 363-64.
On appeal, Cruse contends that, under Lee and A.W. Wright & Associates, P.C. v. Glover, Anderson,
Chandler & Uzick, L.L.P., a fee-sharing agreement is not illegal or void, and an attorney may share in
contingency fees with a suspended or disbarred attorney, when (1) the fee-sharing agreement was made
before suspension/disbarment, and (2) the suspended/disbarred attorney fully performed the work required
of him or her before the suspension/disbarment occurred. See Lee, 812 S.W.2d at 363B64; A.W. Wright &
Assocs., 993 S.W.2d 466, 468B69 (Tex. App.- Houston [14th Dist.] 1999, pet. denied). Cruse maintains that
he has satisfied the first requirement because it is undisputed that the parties entered into the FSA before
Leonard Cruse was suspended or disbarred. Cruse also argues that he satisfies the second requirement
because O'Quinn failed to demonstrate that Cruse had not performed all of the legal work required of him
before he was suspended on May 31, 2005. Because the first requirement is not at issue, we need only
address Cruse's arguments concerning this second requirement.
To support its claim that Cruse had not completed all of its legal work before Leonard Cruse was suspended
on May 31, 2005, O'Quinn submitted the affidavit of Treena Morgan, the accounting supervisor for the
O'Quinn law firm. Ms. Morgan averred that she was “familiar with the cases and/or matters subject to the
[FSA]" and she was “also familiar with the date that each of these cases and/or matters settled or otherwise
became finally resolved." Attached to Ms. Morgan's affidavit was a “complete list of those cases and/or
matters, subject to the [FSA] that settled or finally resolved on or after May 31, 2005." The list included the
cause number, style, court, and settlement date for each of nineteen cases or matters.
Cruse contends that O'Quinn's summary-judgment proof failed to include for each case the settlement
amount, the sum paid to the client, the sum paid to O'Quinn in fees and expenses, any sum paid to Cruse in
fees and expenses, or the case's classification as provided in the FSA. Further, Cruse argues that
because the FSA provided that it terminated upon Cruse's inability to practice law, the agreement was
terminated when Leonard Cruse was suspended on May 31, 2005; Cruse therefore had no tasks to complete
after that date and so should have been paid as contemplated in the agreement. Further, Cruse contends
that O'Quinn provided no summary-judgment evidence that Cruse failed to amend the power of attorney on
each case to secure client consent to O'Quinn's participation and fee sharing, and to amend the pleadings in
each case to add O'Quinn as an attorney, as Cruse was obligated to do under the FSA.
However, Cruse fails to explain why any of the detailed information about fees and expenses would be
relevant. Under Cruse's own theory, the only relevant factor was whether or not Cruse had fully performed
the work required of him before the suspension/disbarment occurred. Cruse's other arguments are
controverted by the plain language of the FSA, which expressly contemplated that the parties would at all
times provide joint responsibility for the representation of their clients. Indeed, under the articles assigning
the parties' duties for each category of cases, the parties agreed to assume “joint responsibility for the
representation as provided in DR 1.04" for each category of cases, regardless of a case's classification or
the level of responsibility assigned. Thus, contrary to its argument, Cruse's responsibilities were not limited
to obtaining amended powers of attorney and amending pleadings to add O'Quinn. Again, as noted above,
the relevant inquiry is not whether Cruse had completed some of its duties on the cases subject to the FSA
on the date Leonard Cruse was suspended; it is whether or not Cruse had completed all of its duties on
those cases. See Lee, 812 S.W.2d at 363 (holding that lawyer who performed all that was required of him
prior to his resignation or disbarment under client-approved referral fee contract entitled to attorney's fees).
Once Leonard Cruse was prohibited from practicing law, he could not maintain joint responsibility for those
cases that had not been concluded by that date.
As for Leonard Cruse's suggestion that he completed all his tasks when the agreement terminated upon his
suspension, and so he had no tasks to complete - and therefore satisfied the second requirement of Lee and
A.W. Wright & Associates, P.C. - nothing in the FSA supports this interpretation. Cruse's interpretation of the
FSA is directly contrary to the long-standing precedent in Texas, discussed above, that when a lawyer is
unable to fulfill his or her representation of a client, the lawyer is not entitled to recovery of any legal fees
from an abandoned case and client. See Royden, 331 S.W.2d at 209; Lee, 812 S.W.2d at 3634. It is also
contrary to the disciplinary rule governing the payment of legal fees to non-lawyers, which prohibits a lawyer
from sharing in legal fees with a non-lawyer. See Tex. Disciplinary R. Prof'l Conduct 5.04(a) (AA lawyer or
law firm shall not share or promise to share legal fees with a non-lawyer . . . .").
Cruse also argues that, under the FSA, O'Quinn had the primary responsibility for certain categories of
cases, and provided no summary-judgment evidence that any of the duties ostensibly assigned to Cruse
under the FSA had not been completed before May 31, 2005. Cruse points to the FSA's provisions that, for
certain cases categorized as “Class I" or “Class II" (indicating a probable settlement value of “more than
$500,000" and A$50,000 B $500.000" respectively), O'Quinn was to be Ain charge of settlement, trial and
preparation for settlement or trial," while Cruse was to be responsible for other tasks such as handling “paper
discovery," “hearings and/or trials" in any Galveston-filed case, and “less onerous depositions" in any
Cruse cites as support for this argument A.W. Wright & Associates, P.C. v. Glover, Anderson, Chandler &
Uzick L.L.P, 993 S.W.2d at 466. In that case, the appellant, Wright & Associates, was the successor to a law
firm whose principal, Joseph Weiss, had been disbarred. Id. at 467. After Weiss was disbarred, Glover
Anderson obtained a summary judgment declaring that portions of the referral agreements between it and A.
W. Wright & Associates were void on the grounds that Weiss was unable to perform the day-to-day handling
of cases as contemplated under the agreements; as a result, Glover Anderson was relieved of its contractual
obligation to share attorney's fees with Weiss. Id. at 468. In its summary-judgment motion, Glover Anderson
relied in part on language in the referral contracts which recited that “the day to day handling of the above
referenced case will be handled by Frances Cisneros and Belinda Gonzales in our office" to show that Weiss
had not yet finished his legal work for the clients at the time of the referral. In response, Weiss argued that
all legal work on the referral contracts was completed at the time of the referral to Glover Anderson, and the
description of activities Glover Anderson relied on referred only to administrative matters. Id. at 469-70. This
court found the language of the referral agreements ambiguous, and so reversed Glover Anderson's
summary judgment. Id. at 470-71.
However, Cruse neither contends that the duties assigned under the FSA are ambiguous nor that the tasks
Cruse was responsible for under the FSA were merely “administrative matters" and not legal work. Further,
Cruse overlooks the FSA's additional requirement that, as to the Class I and Class II cases, both parties were
obligated to assume “joint responsibility for the representation as provided in DR 1.04." Under the version of
DR 1.04 in effect at the time the FSA was executed, an agreement to split fees between lawyers not in the
same firm could be made only if the division was, among other things:
● in proportion to the professional services;
● made with a forwarding lawyer; or
● made, by written agreement with the client, with a lawyer who assumes joint responsibility for the
representation . . . .
See Tex. Disciplinary R. Prof'l Conduct 1.04(f)(i)B(iii) (adopted by order of Oct. 17, 1989, effective Jan. 1,
1990, amended by order of Jan. 28, 2005, effective Mar. 1, 2005, and reprinted in Tex. Gov't Code Ann, tit.
2, subtit. G app. A (Vernon Supp. 2006)) (“former Rule 1.04"). Thus, the former DR 1.04 expressly
distinguished between a “forwarding lawyer" and one who assumed joint responsibility for the representation.
In this case, it is evident that the FSA obligated each party to assume joint responsibility for the
representation. Indeed, compliance with DR 1.04 or the assumption of joint responsibility as provided in DR
1.04 is referenced seven times throughout the FSA. Nowhere in the FSA is Leonard Cruse described as a
forwarding lawyer, nor does the FSA include any language indicating that the parties contemplated such a
relationship. Therefore, unlike in A.W. Wright & Associates, under the plain language of the FSA, Leonard
Cruse could not be considered a “forwarding lawyer" whose contractual duties arguably could have been
completed merely by making the referral with the client's consent. See id. at 470-71 (citing former DR 1.04
and reversing summary judgment for Glover Anderson because referral agreements were ambiguous
concerning the true intent of the parties). Accordingly, A.W. Wright & Associates is distinguishable from this
Finally, Cruse contends that O'Quinn improperly relied on Disciplinary Rules 1.04 and 5.04 to argue that the
FSA was void as contrary to public policy. Specifically, Cruse argues that the disciplinary rules are not to be
used in civil proceedings outside of the “attorney disciplinary" arena, and cites as support Wright v. Sydow,
173 S.W.3d 534 (Tex. App.- Houston [14th Dist.] 2004, pet. denied), and Cuyler v. Minns, 60 S.W.3d 209
(Tex. App.- Houston [14th Dist.] 2001, pet. denied). Cruse also argues that the disciplinary rules are not
appropriate to establish public policy in this case and that O'Quinn has provided no summary-judgment proof
to support its public-policy argument. We again disagree.
In both Wright and Cuyler, this court recognized that the disciplinary rules do not give rise to a private cause
of action. See Wright, 173 S.W.3d at 549 (AA violation of the Disciplinary Rules does not necessarily
establish a cause of action, nor does it void an otherwise valid contract executed outside of the attorney-
client relationship."); Cuyler, 60 S.W.3d at 214 (“The Rules by the terms will not support a claim of negligence
per se, nor do they give rise to a private cause of action."). But, as Cruse acknowledges, a court may deem
these rules to be an expression of public policy, so that a contract violating them is unenforceable as against
public policy. Dardas v. Fleming, Hovenkamp & Grayson, P.C., 194 S.W.3d 603, 613 (Tex. App.- Houston
[14th Dist.] 2006, pet. denied); Bond v. Crill, 906 S.W.2d 103, 106 (Tex. App.- Dallas 1995, no writ); Polland
& Cook v. Lehmann, 832 S.W.2d 729, 736 (Tex. App.- Houston [1st Dist.] 1992, writ denied). Thus, if the
FSA has not been performed in accordance with the requisites set forth in the disciplinary rules, O'Quinn's
performance may be excused as against public policy. See Polland & Cook, 832 S.W.2d at 736.
In its motion for partial summary judgment, O'Quinn did not seek to assert a cause of action against Cruse
based on a violation of the disciplinary rules. Instead, O'Quinn relied on Disciplinary Rules 1.04 and 5.04 as
additional support for its defenses of illegality and invalidity on public-policy grounds, asserting that these
rules expressly prohibit payment of legal fees to Cruse for cases in which Cruse had not completed all legal
services before Leonard Cruse was suspended and then disbarred. We agree with O'Quinn that the
disciplinary rules are consistent with Texas law as expressed in Royden, 331 S.W.2d at 209, and Lee, 812 S.
W.2d at 364. Therefore, in this case, we conclude that we may consider them as an expression of the public
policy of this state. See Dardas, 194 S.W.3d at 613 (recognizing that courts have used the disciplinary rules
as a measure of public policy).
Below and on appeal, O'Quinn contends that an interpretation of the FSA that would allow Cruse to recover
attorney's fees on those cases subject to the FSA which were not fully and finally resolved prior to Leonard
Cruse's suspension and ultimate disbarment would render the FSA illegal and void as against Texas law and
Texas public policy as expressed in the disciplinary rules. It has long been recognized that “'[a] contract to
do a thing which cannot be performed without violation of the law' violates public policy and is void.” In re
Kasschau, 11 S.W.3d 305, 312 (Tex. App.- Houston [14th Dist.] 1999, orig. proceeding) (quoting Lewis v.
Davis, 145 Tex. 468, 199 S.W.2d 146, 148- 49 (1947)). The rationale behind this rule is not to protect or
punish either party to the contract, but to benefit and protect the public. Id. Courts will not enforce
agreements that are illegal and void. See., e.g., Miller v. Long-Bell Lumber Co., 148 Tex. 160, 222 S.W.2d
244, 246 (Tex. 1949) (recognizing the general principal that “courts will not lend their aid in enforcing illegal
contracts"); DiFrancesco v. Houston Gen. Ins. Co., 858 S.W.2d 595, 598 (Tex. App.- Texarkana 1993, no
writ) (“It is a familiar law of contracts that an illegal agreement is unenforceable.").
Accordingly, we hold that O'Quinn carried its summary-judgment burden to demonstrate as a matter of law
that FSA is illegal and void as against the public policy of Texas as expressed in the case law and the
disciplinary rules discussed above, because Cruse is prohibited from receiving fees on cases subject to the
FSA that were not settled or otherwise finally resolved before Leonard Cruse was suspended and disbarred.
See, e.g., Villanueva v. Gonzalez, 123 S.W.3d 461, 466 (Tex. App.- San Antonio 2003, no pet.) (holding that
an agreement to split fees between an attorney and a person not either licensed as a bail bond surety or as
an attorney was illegal); Plumlee v. Paddock, 832 S.W.2d 757, 760 (Tex. App.- Fort Worth 1992, writ denied)
(affirming summary judgment against non-lawyer on alleged referral contract as illegal and void as against
b. Cruse failed to present summary-judgment evidence establishing a genuine issue of
Having determined that O'Quinn satisfied its summary-judgment burden, we next turn to Cruse's contention
that it presented evidence raising a conflict. Specifically, Cruse points to the following statements in Leonard
Cruse's affidavit submitted in response to O'Quinn's motion:
● AI completed all work that was required of me under the Fee Sharing Agreement and therefore
expected to receive my fee." (emphasis in original)
● AMy involvement was all at the beginning of the suit. All this had been completed by the time the
cases were taken over by the Defendants and only their work was left to be completed."
According to Cruse, O'Quinn's objection below that this testimony was conclusory was waived because
O'Quinn did not secure a written ruling on its objection, and the trial court implicitly overruled the objection
because it stated in its order that it considered Cruse's response in granting O'Quinn's motion. Moreover,
Cruse contends that the testimony “does not contemplate a factual conclusion, but is simply a succinct
statement of pure fact as to whether or not he had completed legal work on the 200 some-odd cases he had
assigned to O'Quinn" under the FSA, and was “simply a shorthand rendition of fact about his completion of
the work required of him." Again, we disagree.
Initially, we need not determine whether O'Quinn waived its objection that Leonard Cruse's testimony was
conclusory or whether the trial court implicitly overruled O'Quinn's objection. An objection that statements in
an affidavit are conclusory is one that relates to a defect in substance and so may be raised for the first time
on appeal. See Hou-Tex., Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.- Houston [14th Dist]
2000, no pet).
Therefore, we will examine the testimony to determine whether it was conclusory or whether, as Cruse
argues, it was merely a shorthand rendition of fact. As discussed at length, the FSA expressly
contemplated that the parties would provide joint representation on all of the cases subject to the
agreement. Also, as noted above, O'Quinn's summary-judgment evidence included a list of cases or matters
that were not settled or otherwise finally resolved by the date Leonard Cruse was suspended. We conclude
that Leonard Cruse's statements in response to this evidence are conclusory, because he simply states that
he completed all of his legal work and so expected to be paid, and that all of his work occurred at the
beginning of the cases. He does not identify what legal work he presumably completed at the beginning of all
of his cases or explain how this was compatible with the FSA's express requirement of joint representation.
He also does not identify what work remained to be done by O'Quinn only or explain why he would not be
jointly responsible for such work. Mr. Cruse does not even address the specific cases identified in O'Quinn's
summary-judgment evidence; he merely asserts in a blanket fashion that he completed all his work at the
beginning of all his cases and there was no legal work for him to perform on any of them. Thus, the
statements are conclusory.
Moreover, the only inference that can be gleaned from Mr. Cruse's statements is that he was acting as a
forwarding lawyer, similar to the lawyer in Lee v. Cherry. See 812 S.W.2d at 363 (forwarding attorney's legal
duties ended when he referred case to another lawyer with client's consent). However, we have already
determined that the FSA expressly provided for joint representation, not a mere forwarding relationship;
therefore, such an inference does not raise a fact issue in the context of this case.
c. The trial court did not misapply the summary-judgment standards.
Lastly, Cruse contends that the trial court misapplied the well-established summary-judgment principles by
granting summary judgment despite O'Quinn's failure to meet its summary-judgment burden and the
presence of conflicting evidence and inferences. Cruse further complains that the trial court erred by
misplacing the summary-judgment burden on Cruse, by indulging in credibility determinations, and by failing
to take Cruse's evidence as true. However, we have determined that the trial court did not err in granting
O'Quinn's motion for partial summary judgment; therefore, Cruse's assertions are without merit.
We overrule the appellants' issues and affirm the trial court's order granting appellees' motion for partial
summary judgment as to appellants' claims under the fee-sharing agreement.
/s/ Jeff Brown
Judgment rendered and Opinion filed November 25, 2008.
Panel consists of Chief Justice Hedges and Justices Guzman and Brown.
 On April 13, 2004, Cruse also entered into a promissory note and a revolving-credit note with the
O'Quinn law firm, but these agreements are not at issue in this appeal.
 The FSA provided that cases were to be categorized as Class I, II, or III, depending on the potential value
assigned to the case. Cases were also categorized by venue as “Galveston County" (AG") or “Not Galveston
County" (ANG"), and by source as “No Referring Lawyer (originated by Cruse)" (“NR") and “Third-Party
Referring Lawyer" (“R").
 O'Quinn also asserted verified denials disputing Leonard Cruse's capacity to sue and to recover in the
capacity in which he sued because he had been disbarred and therefore was prohibited from recovering any
fees on cases which settled after the date he was suspended from the practice of law. O'Quinn also asserted
that the Cruse law firm lacked the legal capacity to sue and to recover in the capacity in which it sued
because it had forfeited its right to do business in Texas.
 The record contains only the first page of the motion to abate and an exhibit purporting to be a
confirmation from the Texas Secretary of State that the charter or certificate of authority for Cruse and
Associates, P.C., was forfeited on July 8, 2005. However, Cruse does not dispute O'Quinn's representation
that forfeiture resulted from the failure of the Cruse law firm to pay franchise taxes.
 Cruse also asserts that “O'Quinn provided global proof of 19 cases resolved before Cruse's 5/31/05
suspension" and contends that even under O'Quinn's theory, Cruse was entitled to be paid on those cases.
Likewise Cruse asserts that “O'Quinn's list contains no data whatsoever on Cruse's cases resolved after
5/31/05 and is expressly limited to cases resolved before the 5/31/05 suspension" (emphasis in original).
However, Cruse is mistaken. As noted above, O'Quinn's list included only cases that settled or otherwise
resolved on or after May 31, 2005.
 Cruse neglects to mention the following obligation also listed in the FSA as applicable to Class I and
Class II cases: “At Cruse's option, attend settlement meetings and/or mediations, and planning or strategy
 Although recognizing that former DR 1.04 was in effect when the FSA was executed, O'Quinn argued
below and on appeal that, because the FSA expressly required the parties to “at all times comply with Rule
1.04," the current version of Rule 1.04 is “the appropriate ethical standard against which the [FSA] must be
measured." In relevant part, the revised DR 1.04 eliminates the category of “forwarding lawyer," thus
prohibiting a lawyer from obtaining a referral fee merely for forwarding a case to another lawyer. See Tex.
Disciplinary R. Prof'l Conduct 1.04(f). However, in this case, it is unnecessary for us to determine whether
the former or the revised version of DR 1.04 applies, because, as we have explained, given the plain
language of the FSA, Leonard Cruse could not have been a “forwarding lawyer" even under the former DR
1.04. See Dardas v. Fleming, Hovenkamp & Grayson, P.C., 194 S.W.3d 603, 615-17 (Tex. App.- Houston
[14th Dist. 2006, pet. denied) (declining to consider whether 2005 amendment to former DR 1.04 applied or
whether it manifested public policy as to a fee sharing agreement executed in 1998); Polland & Cook v.
Lehmann, 832 S.W.2d 729, 735-36 (Tex. App.- Houston [1st Dist.] 1992, writ denied) (applying predecessor
rule to former DR 1.04 even though former DR 1.04 was then in effect, when predecessor rule was in effect
when the agreement at issue was executed).
 In support of the contention that Leonard Cruse's statements are not conclusory, Cruse cites St. Paul
Cos. v. Chevron U.S.A, Inc., 798 S.W.2d 4 (Tex. App.-Houston [1st Dist.] 1990, writ dism'd), and Murphy v.
Galveston County, 788 S.W.2d 938 (Tex. App.-Houston [14th Dist.] 1990, writ denied). However, neither
case involved statements as threadbare as those offered here. For example, in St. Paul the court concluded
that the statement "the contract was in full force and effect on August 15, 1984'" was not a legal opinion in
the context of that case, but instead was a “shorthand rendition of a statement that the contract . . . had not
been terminated by either of the parties." 798 S.W.2d at 7. The court acknowledged, however, that in other
contexts it could be considered a legal conclusion. Id. In Murphy, this Court held that a detainee's statement
that a Galveston County official or officer closed a jail cell door on his hand was not an attempt to interpret
the person's legal status, but could have reflected the detainee's factual conclusion that the person was a
Galveston officer. 788 S.W.2d at 939. In the context of this case, however, merely stating as “fact" that
Cruse had completed all legal work at the beginning of his cases is not sufficient to raise a fact issue for the
reasons explained in this section of the opinion.
 We also disagree with Cruse's statement in its reply brief that the testimony created a conflict because
O'Quinn “candidly admitted" below that the evidence offered by the parties was conflicting. The page of the
record Cruse directs us to, which includes O'Quinn's objections to Leonard Cruse's statements above, shows
that O'Quinn's objection was that the affidavit contradicts itself; in the affidavit, Cruse states that the FSA
provided for 'joint sharing' of responsibility," but then attests that he had completed all work required of him
and that his involvement occurred at the beginning of the suit. O'Quinn also objects that the testimony is
“contradictory on its face, lacks credibility, is controverted by the summary judgment evidence . . . and thus
fails to meet the standard for testimony from an interested witness." We understand O'Quinn to be
complaining that Leonard Cruse's statements were internally contradictory and controverted by the plain
language of the FSA; we do not interpret the objections as an admission that the evidence created a fact