Delcaration of Gary Schepps to Produce Docs of Former Attorney claims

AFFIDAVIT OF GARY SCHEPPS - Page 1 
IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF TEXAS 
DALLAS DIVISION 
 
NETSPHERE, INC.,              ) 
MANILA INDUSTRIES, INC., and      ) 
MUNISH KRISHAN,              ) 
  Plaintiffs,                   ) 
                          ) 
vs.                         )  Civil Action No. 3-09CV0988-F 
                          ) 
JEFFREY BARON, and            ) 
ONDOVA LIMITED COMPANY,      ) 
  Defendants.                  ) 
 
DECLARATION OF GARY SCHEPPS 
 
  1.  My name is Gary Schepps.  I am the appellate counsel for Jeff Baron 
and have been ordered  by Judge Furgeson to  act  as  trial counsel as well.  I 
am  competent  to  make  this  declaration.   The facts stated  in this declaration 
are within my personal knowledge and are true and correct.  I have personal 
knowledge  of  the  stated  facts,  which  I  learned  as  the  result  of  being 
subjected to the facts and events stated herein. 
 
  2.  I formally requested that the receiver produce the material as stated in 
the  exhibit  attached  to  Jeff’s  Response,  and  Amended  Response  to  the 
Assessment  of  Former  Attorney  Claims,  previously  filed  in  this  cause.    A 
very  limited  amount  of  material  was  requested,  including  for  example,  all 
fee  agreements,  all  correspondence  between  the  attorneys  and  their  client 
relating to the fee and specifically (1) a copy of the actual billing sent to the 
client, and (2) the correspondence sent by each attorney making any demand 
for payment, and any return correspondence.  The receiver agreed to produce 
this material  in  the  format requested (OCR’d tabbed PDF files) and I spoke 
with  a  copy  service  hired  by  the  receiver  explaining  specifically  what 
material  was  requested.      The  receiver refused to produce the material  they 
had promised to produce.   There were several exchanges with the receiver, 
including  the  receiver’s  claim  that  the  failure  of  their  production  was  my 
fault because I failed to contact their copy service.   I did contact their copy 
service  and  had  a  detailed  conversation  setting  out  specifically  what  was 
requested (the exact thing which was requested in writing to the receiver).  I 
discussed  the  request  at  a  formal  ‘meet  and  confer’  meeting  with  the 
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EXHIBIT D 3

AFFIDAVIT OF GARY SCHEPPS - Page 2 
receiver.      Still,  the  receiver  refused  to  produce  what  they  had  promised  to 
produce,  and I  was  forced to make a formal motion.  The withheld material 
is  necessary  to  fairly  evaluate  and  respond  to  claim  for  unpaid  attorney’s 
fees. 
 
   3.  The  rules  of  ethics  require  that  an  attorney’s  fee  be  limited  to 
reasonable  fees  for  the  services  rendered.    An  attorney  is  prohibited  from 
charging  unreasonable  fees  and  fee  forfeiture  of  the  entire  fee  paid  the 
attorney is the remedy for an attorney’s excess fee demand.   As a matter of 
law,  proof  of  the  reasonable of an attorney’s  fee  requires  expert opinion.   I 
formally  requested  from  the  receiver  access  to  some  of  Jeff’s  funds  to  hire 
an  expert  on  the  fees  issue.    I  requested  this  even  in  a  formal  ‘meet  and 
confer’  session  with  the  receiver.    The receiver refused to provide any such 
funding.    I  attempted  to  find  an  expert  who  would  work  on  a  contingency 
basis,  and was  unable to  find any qualified expert agreeing to do  so.   As a 
matter  of  law,  without  an  expert’s  opinion  is  not  possible  at  this  time  to 
present  evidence  that  any  attorney’s  fee is unreasonable.    Accordingly,  it is 
not  possible  to  offer  evidence  in  defense  of  the  attorney’s  claims  with 
respect  to  that  aspect  of  the  claim’s  defense.    It  is  my  opinion  there  are 
grounds to assert the defense of unreasonable fees on Jeff’s behalf.  
 
  4.  Proof  of  Malpractice  requires  expert  opinion.    In  order  to  present 
evidence  of  malpractice  an  expert’s  opinion  is  required.  The  facts  stated 
above apply to an expert on malpractice.  If Jeff is prohibited from using his 
own  money  to  hire  an  expert,  as  a  matter  of  law  he  is  unable  to  present 
evidence  to  establish  a  defense  of  malpractice.    It  is  my  opinion  there  are 
grounds to assert the defense of malpractice, on Jeff’s behalf. 
 
  5.  I  handle  federal  appeals,  not  federal  trials.    I  have  never  on  my  own 
handled a federal trial, bench or jury, and have always relied upon hired trial 
counsel  for  trials  in  the  federal  court.    I  am  not  qualified  on  my  own  to 
appear  in federal court and defend multiple claims against multiple teams of 
attorneys. I require assistance to handle the organization of the files, tracking 
of  admission  of  evidence,  preparation  and  tracking of objections, and many 
other aspects of the appearance.    If I was up against a single attorney who 
also had no support, I think I could manage.  It is simply not possible for me 
to  properly  represent  Jeff’s  interests  by  myself.    My  engagement  was 
express  and  clear  that  I  was  not  accepting  employment  to  make  any 
appearance as trial counsel.  An AV rated trial attorney was representing Mr. 
Baron at  the time I was retained as appellate counsel, but he was ‘fired’ by 
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AFFIDAVIT OF GARY SCHEPPS - Page 3 
the receiver.  From the moment this Court ordered me to be trial counsel for 
Jeff,  I  have been flooded by the receiver and the trustee with a mountain of 
paperwork.    I  have  been  working  well  over  65  hours  per  week  on  the  trial 
court issues, for around four months now.   As the Court is aware, I have not 
been paid because the Court has not allowed Jeff to pay me. 
 
  6.  Even  a  minimal evaluation  of  an  attorney’s  claim  would take  a  week 
of  work.    Some  of  the  larger  claims  will  take  a  couple  weeks  of  work  to 
properly  evaluate.    Working  on  my  own  it  will  take  me  over  24  weeks, 
approximately  half  a  year,  dedicated  strictly  to  that  job,  to  evaluate  the 
‘claims’  presented.     If I were  allowed the funds to  hire sufficient attorneys 
and  staff  to  assist  me,  the  evaluation  could  be  completed  in  less  than  a 
month.   
 
  7.  Basic discovery is necessary to properly investigate and respond to the 
claims.  This  includes  an  opportunity  to  conduct  depositions,  and  obtain 
disclosures  from  the  claimants.    An  opportunity  to  serve  admissions  would 
also be helpful.  For example, Mr. Ponske at one time swears under oath that 
there  was  no  engagement  agreement,  but  at  another  time  swears  that  there 
was  an  engagement  agreement.      While  some  attorneys  may  be  quick  on 
their  feet  and  have  sufficient  experience  to  put  on  a  hearing  with  live 
witnesses  without  the  need  to  conduct  formal  discovery,    I  am  not  one  of 
those attorneys.  I need to question a witness in a deposition, and then spend 
considerable time figuring out how to admit the relevant evidence I desire.  I 
am not qualified to prove up a foundation ‘from the seat of my pants’.   My 
ability to put on a hearing is based on hard work and preparation.   Without 
the  opportunity  to  conduct  the  underlying  discovery  I  am  not  qualified  to 
defend  the  claims  against  Jeff.    I  am  not  able  to  ‘shoot  from  the  hip’  and 
reliably  hit  a  target.  In  order  to  put  on  a  defense  at  a  hearing  I  must  be 
allowed  to  prepare  for  it.    As  discussed  in  this  affidavit,  I  have  not  been 
allowed to prepare a defense in this case.   
 
  8.  Because  this  Court  has  ordered  that  the  undersigned  counsel  must 
work  without  payment,  for  the  past  four  months  the  undersigned  has  been 
forced  to  work  over  65  hours  a  week  on  trial  court  matters  reviewing, 
researching  and  responding  to  a  mountain  of  paperwork  generated  by  two 
teams  of  attorneys  billing  often  over  24  hours  a  day.      The  overwhelming 
workload without pay, has forced counsel to turn away and defer other work, 
and go without material income for four months.  Frankly, I am also tired.   
 
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  9.  It  is  notable,  that  the  claimant  attorneys  have  been  paid  nearly  two 
million dollars while by court order the undersigned has worked on this case 
as  court  ordered  trial  counsel  for  months  and  has  been  paid  no  money.  
Instead, this court has taken Jeff’s own money, most of his liquid funds, and 
paid the receiver who has engaged in a blizzard of work in fabricating claims 
against Jeff, and against me personally as his attorney.   In addition to being 
unpaid,  I  have  been  subject  to  personal  insults  by  the  Court’s  receiver  and 
his law partners (for example, accusing me of being “despicable”).   
 
   
I declare under penalty of perjury that the foregoing is true and correct. 
 
Signed this 28th day of April, 2011, in Dallas, Texas. 
 
   /s/ Gary N. Schepps 
               Gary N. Schepps 
 
 
 
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