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Sex, Lawyers and Secrets

Sex, lawyers, secrets at heart of sealed legal case
Web Posted: 06/13/2004 12:00 AM CDT

Maro Robbins and Joseph S. Stroud
Express-News Staff Writers

© 2004, San Antonio Express-News

Professional woman enjoys travel, music, massages, good wine and great food, the personal ad told visitors to the online dating service.

Seeking intelligent, educated man with no strings, for erotic and intellectual relationship.

"I am extremely discreet and require the same," read the ad on AdultFriendFinder.com, which touted itself as the "world's largest sex personals."

Online flirting and secret meetings followed. But before long, discretion gave way to discovery.

Soon the woman's husband was threatening to sue her lovers, exposing their infidelities, and several were paying him thousands of dollars not to go to court ? a gambit that walked a fine line between what some label extortion and what lawyers do every day.

Later, when the matter reached the judicial system, the courts shrouded it in secrecy ? an approach that raises questions about the right to privacy vs. the public's right to know how attorneys can exploit the law.

Orchestrating it all was San Antonio lawyer Ted H. Roberts, who received up to $155,000 from his wife's lovers.

Roberts, a shrewd medical malpractice lawyer, delivered drafts of legal documents and settlement terms to as many as five men, at least some of whom Mary Schorlemer Roberts met through the Internet.

Couched in legal jargon, the documents ? which Mary Roberts apparently helped type ? told the men that Ted Roberts was considering notifying their wives and employers and was ready to ask a judge for permission to further investigate the affairs.

The documents, copies of which were recently obtained by the San Antonio Express-News after its reporters were denied access to the court files, were as remarkable legally as they were sensational.

They ventured toward an archaic area of law that once made adultery fair game for litigation but was erased from the books nearly two decades ago.

Under current Texas law, an unfaithful spouse can be sued for divorce, but suing his or her lover for ruining your marriage no longer is allowed.

Whether Roberts' tactic was legally sound or ethical has been the subject of debate. One of Roberts' former colleagues called it blackmail. Roberts has described the tactic in legal proceedings as legitimate.

He asked the newspaper in a letter Friday to not publish this article, saying it would "inflict catastrophic damage" on his family, and would violate a court order sealing the records.

Hours later, Roberts hand-delivered to the Express-News an appeals court ruling that essentially reaffirmed an earlier decision to seal the files. However, the court did not act on Roberts' request to block the article's publication.

Mary Roberts, the "professional woman" from the ad, said in an interview that the contents of the documents were a private matter, and she defended the validity of her husband's actions.

"There is no doubt in my mind that the legality of everything that has ever been drafted by my husband is absolutely correct," she said.

Asked if she considered his tactic ethical, Roberts, who is her husband's law partner, replied: "I think that if it is legal, if pleadings are legal, they are ethical, would you not agree with me? Certainly our courts would have taken care of things."

Roberts' unorthodox claims may not have violated Texas statutes, or even lawyers' ethics, some legal experts say, but they raise questions of right and wrong that go beyond the law.

Others dismissed what he did as simply "creative lawyering."

Whatever its label, the strategy succeeded.

Court transcripts obtained by the Express-News suggest the men paid at least $75,000 altogether and perhaps as much as $155,000, ostensibly ensuring that their private indiscretions would not become very public lawsuits.

Ted Roberts, insisting that the men bought more than silence, characterized their payments as good deeds.

"I met with these people and I know they felt they were doing the right thing," he said in a 2002 court hearing.

Some of the money ? exactly how much is unclear ? went to a children's charity that Roberts had just registered with the state but not, according to an Internal Revenue Service spokesman, with the federal government.

Mary Roberts aided her husband as he confronted her former lovers ? typing, according to the transcript, parts of the documents that named her and her paramours as potential defendants.

She denied any role in drafting the documents but seemed to acknowledge making a distinction between drafting and typing.

"When you're a lawyer, you certainly do" make such distinctions, she said.

Other documents recently obtained by the Express-News include a handwritten note to one of the men.

"Ted has promised to do nothing with the enclosed petition without first meeting and talking with you and your attorney. I don't know how much of the material you would want to share with (your lawyer) or anyone else.

"I urge you to contact either Ted ... or me ... soon so that this aspect of the entire ordeal will not be prolonged."

The note was signed, "Mary," and was dated Nov. 12, 2001 ? within three weeks of the last intimate e-mail she sent him.

The businessman paid $30,000, Ted Roberts later testified.

Partners in law

Ted and Mary Roberts are the names behind Roberts & Roberts, a local law firm that promotes itself as a vigorous, skilled advocate for its clients.

"We believe in a team approach," says their Web site. "Our team includes experienced attorneys, medical researchers, board certified medical experts, a devoted support staff and you, our client."

The Web site displays a photo of Ted and Mary standing shoulder to shoulder, smiling in front of a shelf filled with law books. He wears a dark jacket and tie; she wears a white blouse and dark jacket with a small medallion necklace.

The Robertses, the site says, "are not in the practice of law for the money, but to pursue justice."

The couple has an 8-year-old son and shares a four-bedroom house valued at $655,800 inside a gated and guarded subdivision in Northwest San Antonio.

Their partnership dates back more than a decade to when she was living in Austin and he was attending law school at the University of Texas.

A native of Wichita, Kan., Ted Roberts already had a master's degree in business administration from UT and a bachelor's degree from the University of Texas at San Antonio, where, according to his law firm's Web site, he served as student body and Honor Society president.

Mary Roberts, the daughter of a Lutheran minister, had earned bachelor's and master's degrees in nutrition from UT in 1978 and '81, respectively, and had two children from a previous marriage.

She and Ted married in 1990, the year he graduated from law school and around the time she started pursuing the law degree she would obtain with honors three years later from St. Mary's University.

The e-mail flirtations and secret romances took place more than a decade later, in the fall of 2001, according to the documents. Ted Roberts' legal answers to those indiscretions were drafted in November and December of that year.

The documents Ted Roberts prepared were not actual lawsuits. They were petitions invoking Rule 202.1(b), the section of the Texas Rules of Civil Procedure that allows lawyers to ask judges for permission to explore whether they have grounds for a lawsuit before actually filing a legal claim.

The petitions each named Mary Roberts and one of her lovers as possible defendants. But the potential claims varied from case to case.

For the executive in a publicly traded technology firm, Ted Roberts said he needed to investigate six possible claims, including deviate sexual intercourse, obscenity and insider trading.

Ted Roberts said he intended to find out whether the executive lured Mary Roberts into the tryst by offering her profitable insider information about his company.

He also wanted to know if the affair involved obscene e-mails that violated the Texas Penal Code and which would give him grounds to sue.

To obtain answers, Ted Roberts said he needed to question under oath a representative of the executive's firm and needed information from the businessman's personal e-mail account.

Ted Roberts said other parties with possible interests in the case might be notified. Topping his list was the executive's wife, followed by six officers from the executive's firm.

Roberts said he wanted to determine if the company's computers and equipment had been used. If they had, he suggested, the firm might be liable.

Other petitions followed similar formats but made different claims.

For an Austin attorney, Ted Roberts included in addition to a list of six possible claims a "partial exhibit list," citing a dozen e-mails to and from Mary Roberts in October 2001.

The e-mails captured attempts at poetry, plans for a rendezvous at Austin's Doubletree hotel, discussions of wine and classical music and a brief travelogue about the Roberts' trip to the California wine country.

Ted Roberts' petition indicated he wanted to know, among other things, if the lawyer used his firm's funds to buy wine, crackers, cookies and masks or to pay the hotel tab. If so, he wrote, the law firm could also be sued.

Ethical boundaries

The petitions held odd and probably flimsy claims, legal experts said, but did not appear to cross the ethical boundaries of practicing law.

The documents, experts said, merely represented innovative alternatives to an extinct legal claim that once enabled someone to sue his or her spouse's lover.

Until 1987, lawsuits targeting adulterers were permitted as "alienation of affection" claims. A separate claim called "criminal conversation" targeted one-night stands rather than lasting extramarital romances, but it, too, was abolished years ago.

Now, a smart lawyer can complain about adultery by citing civil claims such as fraud, invasion of privacy and obscenity, said John J. Sampson, a UT law professor who specializes in family law.

"Basically, it's alienation of affection and criminal conversation dressed up in different clothes," he said. Still, Sampson added, courts would throw out such claims "if they have their wits about them."

"It's certainly creative lawyering," said Harry L. Tindall, a Houston attorney and a co-author with Sampson of a family law textbook. "I've not seen it before, but I see creative things all the time."

Tindall, who reviewed one of the petitions with the names omitted, said Roberts could certainly investigate adultery as possible grounds for divorce.

"Beyond that, (most of) these claims seem screwy," he said.

Joseph Sanders, a University of Houston law professor who reviewed the same document, also saw little merit in the claims raised against the Austin executive.

Offenses such as insider trading and obscenity are criminal violations, Sanders said. Only prosecutors or victims can raise them in court.

He wondered how Roberts could claim to be a victim of obscenity if the vulgar e-mail wasn't sent to him.

So why did the men pay Ted Roberts? Was it to do the right thing, as Roberts insisted in court?

"Here's my 2 cents," Sanders said. "They settled because obviously they didn't want to face the potential public issues. So the most important thing they're buying ... is not the 'global release and settlement' but the confidential agreement on Page 4."

Asked if Roberts' petitions represented possible violations of legal ethics, Sanders said he didn't know, because he wasn't an expert on the subject, adding, "It doesn't pass ... a common-sense layperson's smell test obviously, but that's not really the issue."

Roberts' tactics may have been "a little unseemly," said University of Texas law Professor John Dzienkowski, who is a specialist in legal ethics, but they probably fall within the bounds of acceptable practice.

Judges, he said, tolerate lawyers who experiment because the legal system wants novel but legitimate claims to get their day in court.

"In the spectrum of Rambo litigation, and in the spectrum of trying to push people a little bit, just sending that piece of paper is probably on the mild side," said Dzienkowski. "That's why ethically I don't really see a problem with it."

The district attorney's office reviewed Roberts' petitions but didn't think it warranted a full investigation, let alone charging him with any wrongdoing.

The key question was Roberts' intent. Specifically, prosecutors decided there was no way of knowing whether Roberts wanted to extort money, aware that his legal claims might have been little more than hollow bluffs.

"We just don't have the evidence to go into court ...," said Cliff Herberg, chief of the white-collar crime section in the Bexar County district attorney's office.

Roberts reprimanded

Courthouse observers say Roberts is a talented attorney whose skills at interrogating witnesses and sorting through complex medical evidence have served clients well.

Three years ago, for example, Roberts obtained a seven-figure settlement for a client. Just the attorney's fee totaled $2 million.

"He's like a chess player who is four steps ahead of you," said Tim Soefje, a lawyer who used to share an office with Ted and Mary Roberts and calls the couple friends.

But not every step has led Ted Roberts to success.

Ten years ago, a judge threw out a $256,433 award to one of Roberts' clients after the defense accused Roberts of eavesdropping on jury deliberations and then abandoning a $25,000 settlement offer.

Two years ago, the State Bar of Texas reprimanded Ted Roberts for accepting a medical malpractice case and then failing to pursue the claim without telling the client about a potential conflict of interest. One of the lawyers associated with Roberts' firm was also a doctor on the surgical team that was a potential target of the lawsuit.

According to a copy of the reprimand, the Bar ordered Roberts to reimburse his former client for $2,000 and to pay another $3,550 to cover the costs of the Bar's investigation.

Under wraps

Roberts' legal response to his wife's affairs would have passed largely unnoticed if not for a legal fight between the lawyer and a colleague, Robert V. West III.

West said he found the documents in the law office he shared with Roberts and tried to use them against Roberts in the dispute over a separate business venture.

Filed in December 2001, West's suit claimed Roberts improperly spent investors' funds on personal purchases, including collectable semi-automatic rifles.

West and his lawyer, Rochel Lemler, filed the documents in court, arguing that the way Roberts profited from his wife's infidelities showed he was untrustworthy and in dire need of cash.

Roberts' legal pleadings and settlements, they alleged, did nothing but put a polite veneer on blackmail.

Roberts, in turn, accused West of stealing the documents. He also accused West of highlighting the affairs in a blackmail scheme of his own.

He claimed West wanted to embarrass and coerce his former partner into settling the business dispute. While that claim was settled for an undisclosed amount, Roberts fought repeatedly to keep a lid on the documents.

Roberts persuaded state District Judge Solomon Casseb Jr. to seal the documents in March 2002.

Two months later, the Express-News persuaded state District Judge Phylis Speedlin that the papers had been improperly kept from the public, but Roberts appealed.

In August 2003, the 4th Court of Appeals reversed Speedlin. And last month, the Texas Supreme Court declined the newspaper's request to consider the case.

While the documents remained in manila envelopes sealed by tape and tucked in files, they became the subject of courthouse gossip. Meanwhile, Roberts scored another legal coup.

Roberts, his wife and their attorney turned the tables on their former partner West and his lawyer, Lemler, filing grievances at the State Bar of Texas that put both on the defensive.

Among other claims, they alleged that West essentially swiped copies of the Rule 202 petitions from their office, and that Lemler violated a court order by sending copies of West's lawsuit to Ted Roberts' business partners.

Those cases have not been resolved, although the state Bar is pursuing disciplinary action against West and Lemler. Neither West nor Lemler would comment for this article, but both have disputed the charges and West has denied stealing the documents.

Meanwhile, concerns raised by West about whether Ted Roberts used his law license to profit from his wife's infidelity have prompted no public action by the statewide association that polices lawyers.

"You can search and find, you will see nothing on any type of reprimand at all against my husband or me," Mary Roberts said.

That did not surprise Charles Silver, another legal ethics professor at UT. He said the state bar's disciplinary committee rarely sanctions a lawyer unless some aggrieved party files a complaint.

In this case, the only likely victim would be one of the five men who received Roberts' documents ? none of whom is likely to complain.

Indeed, two of the men declined comment when contacted by the Express-News. The rest did not return phone calls.

When Roberts contacted them, he proposed settlement terms.