A judge has dismissed the Texas Commission for Lawyer Discipline’s (CFLD) complaint to disbar a Texas attorney over his practice of sending out demand letters threatening to sue under Title III of the Americans with Disabilities Act (ADA).
In 2017, Omar Weaver Rosales, whose practice includes ADA claims, sent demand letters to an unknown number of medical practitioners and chiropractors alleging that their websites violated the ADA. Rosales also claimed that the healthcare providers were required to report themselves to the Department of Health and Human Services (DHHS) and forfeit any federal funds until their websites were brought into compliance.
In the event recipients did not settle with Rosales for a proposed $2,000, he threatened to file the legal complaint attached to the letters, and to contact DHHS regarding a suit to recover misappropriated federal funds under the federal False Claims Act.
The demand letters were sent under a variety of letterheads, including The Rosales Law Firm, PLLC; O. Rosales; and the Center for Veterans Access. All of the demand letters listed the same address and phone number.
While an unknown number of recipients may have settled with Rosales, a few decided to instead report him to the Texas Commission for Lawyer Discipline (CFLD). The CFLD believed there were grounds for disbarment, and filed suit in state court. The complaint alleged, among other things, that Rosales threatened to bring frivolous legal actions because he did not himself have standing to bring suit under Title III of the ADA.
Rosales rejected these claims, however, and argued that he was himself a disabled veteran who suffered from PTSD, allowing him to bring suit in his own name.
Last week, however, Judge R.H. Wallace, Jr., dismissed the complaint against Rosales with prejudice on the grounds that it violated the Texas Citizens’ Participation Act (TCPA). The TCPA is what is known as an anti-SLAPP law, designed to discourage so-called “strategic lawsuits against public participation.” In Judge Wallace’s view, the CFLD’s complaint had the effect of denying Rosales’s ability to exercise his free speech about a matter of public concern.
Judge Wallace also ordered CFLD to pay Rosales’s legal fees of approximately $65,000. Under Texas law, attorneys fees are automatically awarded when a motion to dismiss is granted under the TCPA.
This was not, however, the first complaint against Rosales. In 2016, Rosales was suspended from practice in the United States District Court for the Western District of Texas after a federal judge found that he had acted in bad faith in a series of prior ADA cases involving parking lots. In those cases, the court found that Rosales had knowingly fabricated an email to opposing counsel, filed a baseless temporary restraining order against opposing counsel to make it impossible for him to appear in court, and made repeated false and abusive statements.
Last week’s decision does not cover any of the conduct involved in Rosales’s 2016 suspension, meaning it could be used as separate grounds by the CFLD to seek his disbarment.
As of the time of writing, the CFLD has not yet determined their next step, though an appeal of Judge Wallace’s decision is likely.
If Judge Wallace’s decision stands, it could help to cement the practice of plaintiffs attorneys sending out demand letters, which are typically permitted under the ADA.
This blog post is for informational purposes only and does not constitute legal advice.