What does allegedly attempting to murder your boss (who happens to also be an attorney) and free speech have in common?  Apparently, not much according to the Austin Court of Appeals in Szymonek v. Guzman.

At the time of the alleged attempted murder in 2019, Arturo Guzman, an attorney and solo practitioner, had employed Ashley Szymonek as his paralegal and “right-hand person” for about 10 years.  In that capacity, Szymonek acted as Guzman’s primary contact with the law firm’s bank, accountant, and insurance agent, using her personal email account for much of the firm’s electronic correspondence with them.

In 2019, while Guzman was trying to refinance an office building he and his ex-wife owned, he learned that he had been a victim of identity theft, that his social security number had been used to open a credit card, and that he could not refinance the property until the fake identity was removed from the credit reporting agencies. Shortly afterward, Guzman learned that a former client had sued him for improperly withholding funds deposited in Guzman’s IOLTA account. The former client also filed a grievance against Guzman with the State Bar of Texas to which Guzman filed an answer pro se. Guzman allegedly asked Szymonek to email his response to the State Bar and contact his malpractice insurance carrier to obtain representation for the lawsuit. Szymonek allegedly told Guzman she had done as he requested and that the defense attorney would be filing a motion to dismiss the malpractice suit.

In March 2020, one of Guzman’s tenants in the office building, also an attorney, learned that Guzman had been disbarred from the practice of law.  When the tenant confronted Guzman, Guzman was surprised.  Shortly afterwards, Guzman checked the website for the court in which the malpractice lawsuit had been filed and learned that the court had entered a default judgment against him. At Guzman’s request, Szymonek scheduled a meeting with the defense malpractice attorney for April 28, 2020.

During this same time period, Guzman’s current wife received an inquiry from the IRS about their tax returns.  She tried unsuccessfully to reach their accountant, finally asking for Szymonek to schedule an appointment with the accountant, which Szymonek allegedly scheduled for April 28, 2020.

Between March and April 28^th, Szymonek interviewed for a job at another law firm and accepted an offer, agreeing to start on April 28^th or 29^th.  Szymonek also allegedly started telling Guzman’s tenants that Guzman was depressed, suicidal, taking drugs and drinking.

On April 28^th, the day of Guzman’s meeting with his accountant and attorney, Guzman’s wife tried, but was unable to reach him all day.  She then contacted Szymonek who allegedly told her that Guzman and Szymonek spoke about closing down the law practice that day, said their “final goodbyes”, and that Guzman was fine and “just needed to rest”.  The next day, when Guzman had still not returned home or contacted his wife, his step-daughter went to his office and found the all the locks had broken keys in them.  After entering the office, she found Guzman snoring loudly, his face bloated, and vomit coming out of his mouth.  After he could not be wakened, the step-daughter called 911.  At the hospital, the doctors determined that Guzman had likely been poisoned by ingesting large amounts of anti-freeze.

Subsequent investigation by Guzman’s family revealed that files, checkbooks, emails and electronic data were missing from Guzman’s office and that about 80 filters and blocks had been installed on Guzman’s office email system, blocking emails from banks, accountants and redirecting emails from the State Bar to Szymonek’s personal email address. The investigation also revealed that Szymonek had attached her PayPal account to Guzman’s IOLTA account and that Szymonek had allegedly siphoned hundreds of thousands of dollars from Guzman’s accounts for personal expenses, including travel, car payments, concert ticket and, of course, a photo session with “live bunnies”.  The investigation revealed that Guzman’s accountant had not done his taxes in over 15 years and that Guzman’s malpractice insurance policy had lapsed years ago and no malpractice attorney had been assigned to defend against the former’s client’s malpractice action.

Guzman filed suit against Szymonek and her husband for assault and battery, invasion of privacy, libel slander, fraud, conversion, and breach of contract.  Szymonek filed a motion to dismiss under the Texas Citizens Participation Act (TCPA), an anti-SLAPP statute intended to safeguard Texans’ constitutional rights to free speech, petition, and association while protecting the right to file a meritorious lawsuit.

The Austin Court of Appeals, in reviewing the trial court’s denial of Szymonek’s motion to dismiss, held that the TCPA did not apply. The Court found that the TCPA applies to “matters of public concern”, matters that must have public relevance beyond the private interests of the parties. Szymonek argued that she was exercising her constitutional right to free speech when she talked to Guzman’s family and colleagues about his alleged depression, handling of his law practice, and disbarment, all subjects she claims are matters of public concern. While the court recognized that Guzman’s allegations involve both a grievance proceeding and a civil lawsuit, it held that Szymonek’s statements were not matters of public concern because she did not make the statements to anyone actually involved in those proceedings. Therefore, Szymonek’s statements did not address a matter of public concern.

As employers, business owners, and attorneys, the practical take aways from this Guzman case are enormous and very disturbing.  Former President George W. Bush’s statement of “trust, but verify” comes to mind as does the more ominous, “trust no one”.  There are many risk management processes and systems that Guzman could and should have implemented, and many red flags about Szymonek’s behavior that should have alerted Guzman of potentially more profound problems.  A strong employee manual and checks and balances, even for a solo practitioner, may have averted the alleged fraud and attempted murder.

The attorneys in our Austin and Dallas office, while thankfully not experienced in the practicing the alleged facts of Guzman, have experience preparing employee manuals and advising employers about risk management.  Please contact us at info@gstexlaw.com with any questions you may have.

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