SIMMONS DIRECT AND CROSS The following direct and cross-examination testimony took place on April 12, 2006. The witness is Marshall Simmons, an attorney who represented Clint Murchison, who owned the Dallas Cowboys, for many years. Mr. Simmons is a former partner at Jenkens & Gilchrist (J&G), a premiere Dallas-based law firm. Mr. Simmons practiced law for 48 years and was responsible for ethical questions at J&G for 11 years. The issue before the court was the disqualification of J&G on the basis of J&G's former representation of Don Dixon, Mr. Sparks' client. Although Simmons testified on direct that no attorney-client relationship had existed between J&G and Dixon for many years, on cross-examination he admitted that he himself had given Dixon informal legal advice as recently as 1998. At that point the Judge jumped in and began asking questions herself. After hearing this testimony, the Judge ruled that J&G was disqualified. Simmons' direct and cross is reproduced in its entirety. 1 REPORTER'S RECORD 2 VOLUME ___ of _____ 3 TRIAL COURT CAUSE NUMBER 05-10457 4 MICHAEL S. MARIX* IN THE DISTRICT COURT 5 VS. * 95TH JUDICIAL DISTRICT 6 SIENA CONSULTING GROUP, ET AL * DALLAS COUNTY, TEXAS 7 TRIAL COURT CAUSE NUMBER 05-09913 8 ENSURCO HOLDINGS, LIMITED * IN THE DISTRICT COURT 9 VS. * 95TH JUDICIAL DISTRICT 10 DON DIXON, ET AL* DALLAS COUNTY, TEXAS 11******************************************************* 12 DEFENDANTS' MOTION TO STRIKE 13& MOTION TO DISQUALIFY 14 ******************************************************** 15On the 12th day of April, 2006, the following 16 proceedings came on to be heard outside the presence of a 17 jury, in the above-entitled and numbered cause, before 18 the Honorable Karen Gren Johnson, Judge presiding, held 19 in Dallas County, Texas. 20Proceedings reported by computerized stenotype 21 machine; Reporter's Record produced by computer-assisted 22 transcription. 23SHARYL ZENO, Texas CSR# 6422 Official Court Reporter 95th Judicial District 24 600 Commerce, Sixth Floor Dallas, Texas 75202 25 (214) 653-6747 Sharyl Zeno, CSR (214) 653-6747 2 1 A P P E A R A N C E S 2 3MR. MARK C. ENOCH MR. RICHARD E. YOUNG 4MR. MORRIS C. GORE GLAST, PHILLIPS & MURRAY, P.C. 52200 One Galleria Tower 13355 Noel Road, LB 48 6Dallas, Texas 75240 (972) 419-8300 7COUNSEL FOR PLAINTIFF ENSURCO, LIMITED 8MR. WILLIAM M. PARRISH MR. VERNON C. HOWERTON, JR. 9JENKENS & GILCHRIST, P.C. 1445 Ross Avenue 10Suite 3200 Dallas, Texas 75202-2799 11(214) 855-4389 COUNSEL FOR PLAINTIFF MR. MARIX 12 MR. BRADEN W. SPARKS 13BRADEN W. SPARKS, P.C. 800 Preston Commons West 148117 Preston Road Dallas, Texas 75225 15(214) 750-3372 COUNSEL FOR DEFENDANT MR. DIXON 16 MR. DAVID P. HERRICK 17HERRICK & ASSOCIATES, P.C. 18111 Preston Road 18Suite 820 Dallas, Texas 75252 19(214) 303-1258 COUNSEL FOR DEFENDANT MR. DIXON 20 21 22 23 24 25 Sharyl Zeno, CSR (214) 653-6747 76 * * * * * * 11MR. PARRISH:We call Dwight Marshall 12 Simmons. 13THE COURT:Mr. Simmons, come to the stand 14 and I'll swear you in.Raise your right hand. 15(Witness was sworn.) 16THE COURT:Have a seat, please. 17Please, proceed. 18 DWIGHT MARSHALL SIMMONS, 19 having been duly sworn upon his oath to tell the truth, 20 testified as follows: 21DIRECT EXAMINATION 22 BY MR. PARRISH: 23Q. State your name for the record, please, sir. 24A.Marshall Simmons. 25Q.And where do you live, sir? Sharyl Zeno, CSR (214) 653-6747 77 1A.North Dallas, Texas. 2Q.How old a man are you? 3A.Does that have anything to do with this? 4THE COURT:Go ahead. 5A.72.73 in June. 6Q.Are you a licensed attorney in the State of 7 Texas? 8A.I am. 9Q.When did you obtain your license? 10A.May of 1957. 11Q.I'd like to just get your very brief initial 12 employment history.Did you go to work for Thompson & 13 Knight right out of law school? 14A.Yes, I did. 15Q.And when was that? 16A.1957.June of '57. 17Q.After working at Thompson & Knight, where did 18 you go to work? 19A.For two years I was in a partnership with 20 another lawyer who had been at Thompson & Knight, and 21 from there I went to Jenkens March 1, 1967. 22Q.And when -- how long were you at Jenkens & 23 Gilchrist in your first stint with the firm? 24A.15 years. 25Q.What was your position at Jenkens & Gilchrist Sharyl Zeno, CSR (214) 653-6747 78 1 during that period of time? 2A.Well, several.I served on the management 3 committee for many years.I was chair of the litigation 4 section the entire time.I was chair of recruiting for 5 several years. 6Q.Were you a partner with the law firm when it was 7 a partnership and subsequently a shareholder? 8A.I was a senior partner.I was never a 9 shareholder because it was still a general partnership 10 when I left. 11Q.After you left Jenkens & Gilchrist in 1982, what 12 did you do next in your legal career? 13A.First year I continued to work on a lawsuit in 14 which I and Jenkens firm lawyers were defending Merkinson 15 (phonetic) Brothers in a lawsuit involving Zachry 16 Construction Company.I did that for one more year.The 17 lawsuit settled.After that I became general counsel for 18 Clint Merkinson, Jr., and all of his companies and for 19 his three children.Four children.Excuse me.I did 20 that until -- for five or six years.You want me to keep 21 going? 22Q.Yes, sir, please. 23A.Clint was put into involuntary bankruptcy.And 24 soon after that I became of-counsel to a small bankruptcy 25 firm in Dallas called Rochelle and Bowserson (phonetic), Sharyl Zeno, CSR (214) 653-6747 79 1 and I assisted them in litigation in the bankruptcy 2 court.I did that for several years.That firm 3 represented a company called Lone Star Steel Company 4 which filed a voluntary chapter 11, and they hired me to 5 be their general counsel for the duration of the 6 bankruptcy which lasted about two years.That would have 7 been until '91 or '92. 8After that I was a sole practitioner until 9 January of '95 when I went back to work at the Jenkens 10 firm as of-counsel with a job that later had a title 11 called "Risk Manager." 12Q.And then have you retired from Jenkens & 13 Gilchrist? 14A.Yes. 15Q.When did that occur? 16A.September 30th of last year; '05. 17Q.What were your duties as Risk Manager of Jenkens 18 & Gilchrist? 19A.I was the lawyer in the firm responsible for 20 interacting with our malpractice -- the firm's 21 malpractice insurance carrier.I reported claims and 22 circumstances, hired outside counsel, reported on 23 developments in all litigation against the firm.Along 24 with another lawyer named Toby Gerber, we were the risk 25 management committee.All the lawyers in the firm would Sharyl Zeno, CSR (214) 653-6747 80 1 come, not at the same time, but they would come to us 2 with questions of ethics and conflicts.If they had 3 client relations problems, they would come and talk to me 4 and I would get involved and try to resolve the problem. 5 If they became aware of a circumstance that may lead to a 6 claim, I was the one they came and talked to and worked 7 with them to try to get it worked out. 8Q.And during that period from 1995 to 2005 when 9 you were serving as risk management or Risk Manager, did 10 you represent clients? 11A.No.Well, the firm, I guess, is considered my 12 client.It was an attorney/client relationship between 13 me and the lawyers in the firm. 14Q.But with respect to the normal representation of 15 clients that weren't within the firm, did you represent 16 clients? 17A.I did not. 18Q.Okay.Now, I'm going to come back to some of 19 your historical role in a moment.Let's get one thing. 20 During the period of time between when you left Jenkens & 21 Gilchrist in '88 and you came back in '95, did you do 22 work for either Don Dixon or entities affiliated with Don 23 Dixon? 24A.I left in '82. 25Q.Okay.Thank you for correcting that. Sharyl Zeno, CSR (214) 653-6747 81 1A.Well, it's a shorter period.In 1986, starting 2 in the summer of 1986 and continuing through, as best I 3 can recall, the fall of '88, I did represent Don 4 individually.I don't think I represented any of -- any 5 company in which he was associated.I think it was 6 strictly Don personally. 7Q.So that was a two-year period between '86 and 8 '88, as best you recall? 9A.Two and a half, isn't it?June to December. 10Q.Okay. 11A.If I'm correct.It was very limited in '86. 12 Much more starting in '87 when we consulted with 13 bankruptcy counsel about a voluntary petition, and then 14 a lot of work after May of '87 through the fall of '88. 15Q.All right, sir.Now, did you become personal 16 friends with Don Dixon? 17A.In the 70's. 18Q.All right, sir.Now I'm going to ask you about 19 a period of time when you were serving as Risk Manager of 20 the firm.At some point in time, did Mr. Dixon approach 21 you about whether or not the firm would consider 22 representing a company called Sterling Media Investments 23 or Sterling Media Capital Investments? 24A.The name Sterling Media strikes a bell, and he 25 did talk to me about whether the firm would represent Sharyl Zeno, CSR (214) 653-6747 82 1 that entity in its dealings with third parties.I don't 2 remember what the deals were, but he did ask me. 3Q.At the time that he approached you and asked you 4 about that, were you his lawyer? 5A.I didn't consider myself to be Don's lawyer at 6 any time after January 1 of '89.I continued to consider 7 him a friend, but I never opened a file for him.I never 8 kept time.I never billed him.I didn't consider him to 9 be a client. 10Q.So at no time after January of '89 did you 11 consider there to be an attorney/client relationship 12 between yourself and Mr. Dixon? 13A.Well, that's hard to -- if we were together in 14 his home and he asked me, he would say, Judge, what do 15 you think about such and such, and if it's something a 16 matter of law I thought I was qualified to answer, I 17 would answer it.I don't know whether you call that 18 attorney/client relationship or not. 19Q.At any time during that period, did he tell you 20 that he expected you to serve as his attorney or counsel? 21A.No.At some point, he had -- I can't be sure 22 when -- a lawyer named Mac Strouder (sic). 23Q.I think the evidence has shown from Mr. Dixon 24 that Mac Strother started representing him in 1986, and 25 that has continued through the present. Sharyl Zeno, CSR (214) 653-6747 83 1A.'86? 2Q.Yes, sir. 3A.Okay.Well, so Mike was doing work at the same 4 time, or I guess, probably, corporate work while I was 5 trying to help Don with his personal problems.And I 6 know that throughout the years I would -- Don would tell 7 me what, you know, Mac was doing this for him or that for 8 him.I think even Mac went to Europe for Don or a 9 company or something, several times.So if you'd asked 10 me, I would have said Mac Strother was Don's lawyer. 11Q.Now, when he approached you regarding asking 12 whether or not the firm would represent Sterling Media, 13 can you describe for the Court what Mr. Dixon said, what 14 did he ask you or what did he say about it? 15A.He said, Judge, do you think the firm would be 16 willing to represent Sterling Media on the understanding 17 that I have no interest, no ownership, or I'm not an 18 officer.I'm merely a consultant with that company.And 19 I said, I'll ask David Laney. 20Q.Did you ask him why he was a consultant with the 21 company as opposed to acting in some other capacity, or 22 did he tell you? 23A.I don't know that he told me at that time, but 24 he had told me before. 25Q.What did he tell you before that time as to why Sharyl Zeno, CSR (214) 653-6747 84 1 he was serving in the role of consultant? 2MR. SPARKS:Your Honor, we just want to 3 advise the witness that Mr. Dixon does not waive his 4 attorney/client privilege with respect to any privileged 5 communications.I believe that would apply to any 6 communications, even if there was no formal 7 attorney/client relationship. 8Q.(By Mr. Parrish) You can go ahead and answer if 9 you do not believe it to be a confidential communication 10 that was given in the course of seeking legal advice or 11 rendering legal advice. 12A.Well, he wasn't asking me anything.He was 13 telling me something. 14Q.Is it something he told others publicly? 15A.I don't know.I would certainly believe he told 16 the same thing to other business associates, but not in 17 my presence. 18Q.Did he ever indicate to you that he intended it 19 to be confidential? 20MR. SPARKS:Let me just make sure I'm 21 clear on this.I am asserting -- the client is asserting 22 that privilege with respect to both privileged and 23 nonprivileged confidential communications that took place 24 in connection with seeking or obtaining the rendition of 25 legal advice either way; whether you spoke to him or he Sharyl Zeno, CSR (214) 653-6747 85 1 to you. 2A.Okay.When he said what he said, he wasn't 3 asking me for legal advice.He was telling me something 4 about his business deals. 5Q.(By Mr. Parrish) What did he tell you about his 6 business dealings? 7A.He said that he could not be publicly identified 8 with any company with which he was working because of his 9 prior problems with the government. 10MR. SPARKS:Your Honor, may I take this 11 witness on voir dire? 12THE COURT: Yes. 13 VOIR DIRE EXAMINATION 14 BY MR. SPARKS: 15Q.Mr. Simmons, I just want to make sure I 16 understand the circumstances regarding that comment 17 because I can't tell from your answer whether or not that 18 is a communication that violates Mr. Dixon's rights.Was 19 that a conversation that took place when you and he were 20 alone and there was no one else involved? 21A.I don't remember.I cannot sit here and tell 22 you about any single conversation I had with Don, where 23 it took place, when it took place, who was there.In the 24 course of our being together, Don mentioned to me that 25 he had -- as far as doing business, he had that handicap. Sharyl Zeno, CSR (214) 653-6747 86 1Q.I understand that. 2My question to you, sir, is can you say with 3 respect to the conversations you just testified to, that 4 that took place in something other than a private 5 communication? 6A.To the best of my knowledge, there was nobody 7 else present when Don made that comment to me. 8Q.Okay.And was that in connection with -- where 9 was that, to the best of your ability; can you say where 10 that conversation took place? 11A.We could have been having breakfast at a diner 12 and he would tell me about how he was doing, what he was 13 trying to do. 14Q.All right, sir.And you said that from time to 15 time he would say, Judge, what do you think about this or 16 ask your advice or seeking legal advice of some nature. 17 Is that true? 18A.That happened occasionally, just in normal -- 19Q.Right? 20A.Yes. 21Q.Did he discuss with you matters related to his 22 business enterprises from time to time? 23A.No.He didn't ask me business questions. 24Q.Okay.So if he asked you about a matter related 25 to Sterling or the setting up of that company or how it Sharyl Zeno, CSR (214) 653-6747 87 1 was going to be formed, is it your testimony that that 2 would not have been a pure business question where he was 3 seeking just, basic, your comments or advice on business 4 matters? 5A.He would not have -- I was always a trial 6 lawyer, or tried to be.He didn't ask me questions about 7 corporate structure or business relationships.When he 8 came to me to see if we could help him, if we could help 9 Sterling, I got Ron Frappier involved because I knew I 10 wasn't qualified to help him. 11Q.Respectfully, sir, it would be our position that 12 that would constitute a private communication that would 13 have taken place in connection with seeking or rendering 14 legal advice, and would ask -- would again assert the 15 privilege, and on that basis respectfully ask the Court 16 to strike that last answer. 17MR. PARRISH:If I might, Your Honor. 18Q.(By Mr. Parrish) That conversation took place 19 prior to the time he approached you regarding Sterling. 20 Is that correct? 21A.Yes. 22Q.Did it have anything to do with his asking for 23 legal advice in the conversation? 24A.No.He wasn't asking me anything.He was 25 telling me in a conversation about -- because I was Sharyl Zeno, CSR (214) 653-6747 88 1 always interested in whether Don was, how he was doing in 2 terms of getting re-established.He would just report 3 that kind of as, well it's kind of tough because. 4MR. SPARKS:I understand that, Your 5 Honor.I think it's a private communication, and I think 6 it's privileged. 7THE COURT:I think at the very least it 8 is in the gray area, and you are treading on very 9 dangerous territory to ask him communications when he is 10 -- it is an open question; whether it was representing. 11 There is all sorts of law on this area, and I think you 12 are treading on very dangerous territory here.You are 13 asking him questions about communications that he either 14 received or given.You are treading on very dangerous 15 territory right now.The Court will not be instructing. 16 You are soliciting communications that he had either 17 gotten or received -- 18MR. SPARKS:Your Honor -- 19THE COURT:The Court is not going to 20 advise or do anything other than to tell you that you are 21 going into very dangerous territory, from my 22 understanding of the law.You can brief it if you want 23 to. 24MR. SPARKS:Will the Court for the sake 25 of -- well, whatever sake, will you strike the response Sharyl Zeno, CSR (214) 653-6747 89 1 we are talking about? 2THE COURT:Strike? 3MR. SPARKS:Yes. 4THE COURT:It is part of the record. 5MR. SPARKS:Thank you, Your Honor. 6THE COURT:It is either -- I do not know 7 if it is a violation of attorney/client privilege.All I 8 know is that you are definitely in the gray area.You 9 have solicited, and the Court has some grave concerns as 10 to whether or not you have attorney/client privileged 11 information.I do not know.You can brief it if you 12 want. 13MR. PARRISH:Your Honor, I think we will 14 be able to demonstrate from other witnesses that that was 15 not something that Mr. Dixon considered or kept 16 confidential.It was something openly discussed. 17THE COURT:There is case law out there, 18 counsel, I know.I can tell you right now that you do 19 not have to be paid.You just have to be talking to a 20 lawyer.There is case law out there that I know for a 21 fact you can be talking to a lawyer and it is 22 attorney/client privileged communications.I would not 23 go there if I were you. 24MR. PARRISH:Moving on, Your Honor. 25THE COURT:I would. Sharyl Zeno, CSR (214) 653-6747 90 1Q.(By Mr. Parrish) I'm going to now go from that 2 period of time where you had those conversations and now 3 jump forward in time to the discussion about Sterling 4 Media.Did you approach the management committee 5 regarding whether or not the firm would represent 6 Sterling Media? 7A.No.Just the managing partner. 8Q.Who was that? 9A.David Laney. 10Q.Were you ever asked whether or not the firm 11 would represent Don Dixon individually? 12MR. SPARKS:Your Honor, again, that gets 13 into -- I believe that gets into privileged 14 communications.Again, I would respectfully instruct 15 this witness or advise this witness that Mr. Dixon 16 asserts the attorney/client privileges to all 17 communications. 18THE COURT:I do not know what he is 19 asking.Clarify the question; were you ever asked.Who 20 was asking?I do not understand the question.Could you 21 rephrase, counsel? 22MR. PARRISH:Yes, Your Honor. 23Q.Did you ask Mr. Laney whether the firm would 24 represent Don Dixon individually? 25A.No. Sharyl Zeno, CSR (214) 653-6747 91 1MR. SPARKS: Object to that to the extent 2 it might call for this witness to convey privileged 3 information that he received from Mr. Dixon. 4THE COURT:Overruled. 5Q.Did you get a decision on whether or not Jenkens 6 & Gilchrist would represent Sterling Media? 7A.Yes. 8Q.Did you communicate that decision to Mr. Dixon? 9 Don't tell me what you said.Just whether or not you 10 communicated with him. 11A.Yes. 12Q.Subsequent to that time, did the firm get a 13 retainer in connection with that representation? 14A.Yes. 15Q.What was your understanding of who the firm's 16 client or clients was or were in connection with the 17 request that was made by you to Mr. Laney? 18A.Sterling Media or Sterling something. 19Q.Did you -- 20A.There may have been another Sterling entity.I 21 don't remember.But it was the company that was the 22 client. 23Q.Did you ever -- to your knowledge, after that 24 time, did the firm ever open a file in which Mr. Dixon 25 was a client of the firm? Sharyl Zeno, CSR (214) 653-6747 92 1A.Not to my knowledge. 2Q.In fact, to the best of your knowledge, did the 3 firm ever open a client (sic) in which Mr. Dixon 4 individually was a client of the firm at any time after 5 1986?Excuse me -- yes, after 1986? 6A.Well, I wasn't with the firm.It was my 7 impression, being with Don, that the firm was not doing 8 any work at that time for his companies. 9Q.Were you familiar with other lawyers who were 10 doing work for Mr. Dixon or his companies after 1986? 11 For example, Mr. Strother, Mr. Ravkind or other 12 bankruptcy lawyers? 13A.Well, Mac Strother, yes.I set up a meeting 14 between Don and bankruptcy counsel to consider filing of 15 a voluntary Chapter 11.A lawyer named Ronald Trost with 16 a firm in Los Angeles.I arranged for a meeting between 17 Don and Billy Ravkind in connection with his criminal 18 problems.I arranged -- I think I arranged for the Abby 19 Lowell meeting, a lawyer from Washington who was a 20 criminal defense lawyer.If there are others, I don't 21 remember them. 22Q.Okay.After arranging for the introduction or 23 the meetings for those lawyers, let's take criminal 24 lawyers, for example, were you actively involved in 25 representing Mr. Dixon with respect to any criminal Sharyl Zeno, CSR (214) 653-6747 93 1 allegations or matters? 2A.No. 3Q.Did you participate in meetings with Don and his 4 criminal counsel to discuss strategy or issues relating 5 to the criminal proceedings against him? 6A.That's a long time ago.I met with Don and 7 Billy and maybe Abby Lowell once or twice, and then I 8 stopped participating.I was not -- my participation was 9 not ongoing.It was way out of my field. 10Q.If Mr. Dixon were to say that you were actively 11 involved in his criminal representation in attending 12 virtually every meeting regarding that representation, 13 would that be an accurate statement? 14A.Not to my recollection. 15Q.Do you think you'd recall if that had been the 16 case? 17A.Yes, I do. 18Q.Once the firm undertook representation of 19 Sterling Media, did you provide any -- did you act as Mr. 20 Dixon's individual attorney in any way? 21A.No. 22Q.Are you aware of anyone in the firm of Jenkens & 23 Gilchrist acting as Mr. Dixon's attorney after the firm 24 undertook representation of Sterling Media? 25A.No. Sharyl Zeno, CSR (214) 653-6747 94 1Q.Did you make an introduction of some 2 representatives of Sterling Media to Ron Frappier?Did 3 you introduce Mr. Dixon and people with Sterling Media to 4 Ron? 5A.I think I -- there was a meeting with whoever 6 was to be a CEO or was a CEO of Sterling and Don and Ron. 7Q.Does Dwight Pierce ring a bell? 8A.Well, the name does.I wouldn't know him if he 9 walked in the door.I don't think I was really more than 10 maybe once or twice. 11Q.In any meeting or meetings that you did attend 12 regarding Sterling Media, did the firm act as Mr. Dixon's 13 individual attorney? 14A.No. 15Q.In any of those meetings, did the firm give Mr. 16 Dixon personal legal advice? 17A.No. 18Q.At any time after the start of that discussion 19 of Sterling Media, whether it was December '98 or 20 sometime in '98 or sometime in '99, did you consult with 21 or give advice to Mr. Dixon regarding any investments in 22 any programs or companies involving the purchase of life 23 insurance policies to raise money for charities? 24A.It seems like at some point I heard about that, 25 but I never -- the answer is no. Sharyl Zeno, CSR (214) 653-6747 95 1Q.At any point in connection with the firm's 2 representation of Sterling Media, did you share any 3 confidential information of Mr. Dixon with Ron Frappier 4 or any lawyer at Jenkens & Gilchrist? 5A.No. 6Q.When you returned to the firm after having been 7 gone, did you bring your legal files from your private 8 practice to the firm? 9A.No. 10Q.Did you bring any confidential information 11 regarding Mr. Dixon, whether in the form of files or 12 otherwise, back to the offices of Jenkens & Gilchrist? 13A.If I had confidential information in my head, 14 which I don't -- I'm not saying I did, then I brought 15 that.I brought nothing in the way of documents or files 16 or anything else. 17Q.As someone who was serving as Risk Manager with 18 the firm, were you alert to and sensitive to the rules of 19 ethics? 20A.Yes, and even gave opinions in that area. 21Q.Were you cautious about the obligations you had 22 to Mr. Dixon based on any prior representation? 23A.Yes. 24Q.So at any point in time, did you disclose what 25 you understood to be confidences of Mr. Dixon to any Sharyl Zeno, CSR (214) 653-6747 96 1 other lawyers at Jenkens & Gilchrist? 2A.No. 3Q.At any point in time from the day you first met 4 Mr. Dixon to today, have you ever provided legal advice 5 or discussed issues with Mr. Dixon regarding what has 6 been called in this lawsuit "the plan," which relates to 7 a company called Ensurco or -- let me warn you 8 beforehand, this is a yes or no question, not a 9 tell-me-what-it-was.Have you ever consulted with him as 10 a lawyer regarding something called "the plan" or a plan 11 for raising money by investing in life insurance 12 policies? 13A.No. 14Q.Have you had an opportunity to review the 15 pleadings or some of the pleadings in this lawsuit? 16A.I've scanned some of the legal briefs. 17Q.Did you scan or look at the -- the plaintiffs in 18 the Marix case, the plaintiff's first amended petition? 19A.Yes. 20Q.Okay.Having looked at the plaintiff's first 21 amended petition, do you have any confidential knowledge 22 regarding any of the -- strike that. 23Have you ever served as an attorney for Siena 24 Consulting Group, Inc.? 25A.No. Sharyl Zeno, CSR (214) 653-6747 97 1Q.You ever served as an attorney for DDC Telesis 2 or Telesis Realty Group, LLC? 3A.No. 4Q.Have you ever served as an attorney for DDC 5 Telesis Realty Group of Texas, Inc.? 6A.No. 7Q.Have you ever provided legal advice to any of 8 those entities at any point in time? 9A.No. 10Q.Did you ever consult with Mr. Dixon regarding 11 the formation -- 12MR. HOWERTON:Your Honor, the witness has 13 asked for a cup of water.May I? 14THE COURT:Yes. 15Q.Did you ever consult with Mr. Dixon regarding 16 the formation of any partnership entities? 17MR. SPARKS:Object to that to the extent 18 it calls for privileged information.We'd respectfully 19 ask the witness not to go into that. 20THE WITNESS:What was the end of it? 21MR. SPARKS:We respectfully ask the 22 witness not to discuss any privileged communications that 23 might be responsive to that. 24THE WITNESS:Can I answer yes or no? 25MR. SPARKS:I don't know.I don't know Sharyl Zeno, CSR (214) 653-6747 98 1 whether it calls for privileged communications. 2THE WITNESS:If the answer is no it 3 doesn't. 4MR. SPARKS:I don't agree with that. 5THE COURT:I think he can answer if the 6 answer is no. 7A.The answer is no. 8Q.(By Mr. Parrish) I'm going to give you kind of a 9 running instruction on this line of questions.Please, 10 do not disclose any confidential or privileged 11 information that may belong to Mr. Dixon, and unless you 12 can answer no to a yes-or-no question, you can just tell 13 me that you have a concern about whether or not that 14 would raise a privilege. 15Are you a corporate attorney? 16A.No. 17Q.Do you have -- do you provide advice to Mr. 18 Dixon or anyone else regarding structuring transactions? 19A.No. 20Q.Have you ever provided legal advice to Mr. Dixon 21 regarding Mr. Marix? 22A.No. 23Q.Mr. Dixon has indicated that you probably know 24 more about his relationships and business dealings with 25 Mr. Marix than anyone in the world except Mr. Marix, Mr. Sharyl Zeno, CSR (214) 653-6747 99 1 Dixon and Mr. Thau.Do you believe that to be a correct 2 statement? 3A.No. 4Q.Tell the Court what you know about Mr. Marix. 5A.It's possible that I met him back in the 70's. 6 I have no recollection of doing so.I don't believe I 7 ever was in a meeting with Mr. Marix and Mr. Dixon, and I 8 wouldn't know Mr. Marix if he -- he may be in the 9 courtroom.I don't know. 10Q.So any statement by Mr. Dixon that you 11 participated in hundreds or perhaps thousands of meetings 12 involving dealings with Mr. Marix would not be accurate, 13 would it? 14A.You are correct. 15Q.I'm going to show you a portion of Defendant's 16 and Intervenor's Consolidated Motion to Disqualify 17 Jenkens & Gilchrist.It is page 4, the paragraph 18 regarding factual background.Mr. Dixon says that it's 19 his belief that you would have important factual 20 knowledge of his interactions with Marix over a 20-year 21 period and extensive knowledge regarding business 22 dealings with him.Is that an accurate statement? 23A.No.No. 24Q.When you were representing -- when you were 25 serving as an attorney for Jenkens & Gilchrist back in Sharyl Zeno, CSR (214) 653-6747 100 1 the 60's, did you represent Don Dixon individually or did 2 you represent corporate entities with which he was 3 associated? 4A.I would only have represented Don if he were 5 named as a co-defendant in a lawsuit against Raldon or 6 Dondi or one of the other companies.Other than that, I 7 did not represent him individually. 8Q.When you were representing Dondi or Raldon 9 Homes, who did you consider your client to be, the entity 10 or Mr. Dixon individually? 11A.It was the entity.It was a corporation. 12Q.Based on your experience, who did the firm 13 consider its client to be when it represented Dondi or 14 Raldon or Vernon Savings on a transaction? 15A.The corporation.That's who we billed.That's 16 who paid us.I think they paid us. 17Q.In Defendant and Intervenor's Consolidated 18 Motion to Disqualify Jenkens & Gilchrist and Glast, 19 Phillips & Murray at page 5, Mr. Dixon says, "In 1999, 20 Marshall Simmons, a former J&G lawyer and very close 21 friend of Dixon's persuaded J&G to resume its 22 representation of Dixon."Is that an accurate statement? 23A.Part of it is.Part of it isn't. 24Q.What part is and what part isn't? 25A.I was a former J&G lawyer.I had been a very Sharyl Zeno, CSR (214) 653-6747 101 1 close friend of Don's.I did not persuade J&G to resume 2 its representation of Dixon.The firm never resumed its 3 representation of Dixon. 4Q.Did you ever ask the firm to represent an entity 5 called Wilshire Guaranty Fund? 6A.No.Never heard of it. 7Q.Did you ever -- I take it you never provided any 8 legal advice to Mr. Dixon regarding Wilshire Guaranty 9 Fund? 10A.You're correct. 11Q.If Mr. Dixon were to say that you were very 12 involved in his criminal regulatory and Vernon's 13 regulatory representation, would that be a true 14 statement? 15A.What was the second part? 16Q.His criminal and Vernon's regulatory 17 representation. 18A.No, that's not correct. 19Q.Would it be correct if he were to say you were 20 in virtually every meeting he ever had regarding those 21 matters, civil, criminal, regulatory, bankruptcy related 22 or otherwise? 23A.That would not be accurate. 24Q.Now, you did meet your wife, Dawn, while you 25 were doing some work for Mr. Dixon.Is that right? Sharyl Zeno, CSR (214) 653-6747 102 1A.I met her in -- when I went out to Don's office 2 in June of 1986.That is correct.She was his executive 3 assistant, I think was her title.Married in May of '89. 4MR. PARRISH:Your Honor, may I have a 5 minute to consult? 6THE COURT:Yes. 7(Brief pause in proceedings.) 8Q.(By Mr. Parrish) Mr. Simmons, in a document 9 which Mr. Dixon has filed as a matter of public record in 10 this case, he has made some comments regarding the 11 interaction that he had with Jenkens & Gilchrist as a 12 consultant to Sterling and makes comments regarding what 13 he claims Mr. Ron Frappier of Jenkens & Gilchrist 14 discussed with him.Based on your experience as a 15 lawyer, if an individual puts information about a 16 discussion with an attorney in a publicly filed pleading, 17 not filed under seal, what's the impact of that on the 18 question of waiver of attorney/client privilege? 19A.It loses the privilege. 20Q.Now, in this document, I'm not going to ask 21 you -- first of all, let me instruct you not to disclose 22 anything in terms of any advice that you might be aware 23 of that was given beyond what's disclosed here.You 24 understand that instruction? 25A.Yes, sir. Sharyl Zeno, CSR (214) 653-6747 103 1Q.Okay.Mr. Dixon has said that Mr. Frappier 2 concluded that certain companies needed to either fully 3 disclose publicly his presence and background or that he 4 should distance himself from each of the companies once 5 they grew to the point in time at which they were going 6 to use public funds so that any and all new investors 7 would not be, quote, spooked, closed quote.Do you see 8 where he has said that there? 9A.Yes. 10Q.Okay.Now, did you ever communicate with Ron 11 Frappier or other Jenkens & Gilchrist attorneys regarding 12 any information you had from your history of representing 13 Mr. Dixon as it might relate to any advice that he might 14 have received regarding that issue? 15A.Nothing that wasn't public information. 16Q.Now, do you know -- 17MR. PARRISH:One more moment to consult. 18(Brief pause in proceedings.) 19Q.(By Mr. Parrish) Back to this historical chart. 20 At no time has Mr. Dixon consulted with you on how to 21 structure any business transactions? 22A.Not that I recall. 23Q.The criminal conviction that took place, were 24 you in the Dallas area when that happened? 25A.I was. Sharyl Zeno, CSR (214) 653-6747 104 1Q.Was substantial information about Mr. Dixon made 2 public at that time? 3A.He'd been in the press for a long time before 4 that and at that time. 5Q.And are you familiar with the fact that he filed 6 for bankruptcy? 7A.Yes. 8Q.What's your understanding as to whether or not 9 information regarding his personal assets were disclosed 10 in connection with that bankruptcy proceeding from the 11 public record?Don't give me any understanding except 12 what is based on public record. 13A.They were all included in the schedules you have 14 to attach to the petition; all your assets, liabilities, 15 everything. 16Q.Do you believe you have any confidential 17 information regarding Mr. Dixon that relates in any way 18 to any business dealings, yes or no, business dealings 19 he's had with Mr. Marix? 20A.No. 21Q.Do you believe you have any confidential 22 information of Mr. Dixon that relates in any way to a 23 company called Ensurco? 24A.No. 25Q.Do you believe you have any confidential Sharyl Zeno, CSR (214) 653-6747 105 1 information regarding an entity known as Charity Capital 2 Funding? 3A.No. 4Q.Do you believe you have any confidential 5 information of Mr. Dixon's relating to any of his 6 business dealings since 1998? 7A.We talked about the Sterling Media.Wasn't that 8 after '98? 9Q.Yes, sir, but do you believe you have 10 confidential information -- 11A.Oh.Sorry.No. 12Q.Was your role in connection with the Sterling 13 Media representation anything other than talking to Mr. 14 Laney about whether or not the firm would be willing to 15 represent Sterling Media? 16A.Was there anything else?Is that the question? 17 Yes. 18Q.In terms of your role? 19A.Yes. 20Q.Is there anything that you play in your role 21 that was confidential?Did your role relate to the 22 retainer?For what it's worth, he's already discussed-- 23A.The retainer agreement I was very active in 24 drafting that and getting it signed. 25Q.And in -- Your Honor, approach to get an Sharyl Zeno, CSR (214) 653-6747 106 1 exhibit, please. 2I'm going to show you what's marked as 3 Defendant's Exhibit 1.It's already been admitted.I 4 will put it on the screen in a moment.I want to show it 5 up close.Does that appear to be a true and correct copy 6 of a letter that you wrote? 7A.Yes. 8Q.Is the letter dated December 28, 1999, from you 9 addressed to Don Dixon?Is that correct? 10A.Yes. 11Q.Now, this letter indicates that Ron Frappier 12 sent an engagement letter to Dwight Pierce on December 13 22, 1999.You see that? 14A.Yes, sir. 15Q.And does that refresh your recollection as to 16 whether or not Mr. Pierce was the representative of 17 Sterling Media that you had been introduced to? 18A.Well, I said earlier I thought that was the 19 man's name.Obviously it was. 20Q.Okay.Now, this letter indicates that in March 21 of 1998, Bill Thau had told Mr. Dixon that the firm would 22 require a $25,000 retainer to begin representation.Were 23 you involved in any discussions regarding the $10,000 24 retainer that was paid in connection with this matter or 25 a discussion regarding a $25,000 retainer? Sharyl Zeno, CSR (214) 653-6747 107 1A.Discussion with whom? 2Q.With the firm. 3A.Yes. 4Q.With Mr. Laney? 5A.Yes. 6Q.This letter is addressed to Mr. Dixon, and in 7 the last sentence you say, "You have my sincere best 8 wishes for success in this venture.We appreciate your 9 asking Jenkens & Gilchrist to represent Sterling Media 10 Capital Group."Do you see that? 11A.Yes, sir. 12Q.When you said, "You have my sincere best wishes 13 for success in this venture," or when you wrote this 14 letter at all, was it your belief or opinion that Don 15 Dixon was the client in any way? 16A.No.Absolutely not. 17Q.And, in fact, did you make that clear by saying 18 you appreciated him asking Jenkens to represent Sterling 19 Media Capital Group? 20A.Well, that's what we were doing. 21Q.Okay.Were you involved in any way in any 22 discussions regarding -- I'm referring here to 23 Defendant's Exhibit 2, regarding representation of a 24 company called World Media Investment Group, Limited, and 25 Media Venture Capital Fund, LLP? Sharyl Zeno, CSR (214) 653-6747 108 1A.That does not ring a bell with me. 2Q.Okay. 3THE COURT:Mr. Parrish, how much more do 4 you have of this witness? 5MR. PARRISH: Just a few more minutes, Your 6 Honor. 7THE COURT:I need a break pretty soon. 8MR. PARRISH:We can break right now. 9THE COURT:Well, if you have few more 10 minutes, that's all right.Keep going. 11You have questions? 12MR. SPARKS:Yes, Your Honor. 13THE COURT:Quite a bit? 14MR. SPARKS:Probably about equal or maybe 15 a little less. 16THE COURT:Let's take a break now. 17I am getting more than concerned that we 18 are not going to finish today.In fact, I am down right 19 depressed about it, and I am going to make a call during 20 break on another frequent customer.I have a big group 21 of anesthesiologists who are always in my court.I fit 22 them in when I have breaks.I am going to tell them not 23 to come tomorrow so I can finish with you all, unless you 24 tell me that you all can't come.I think we should 25 finish if we can.Is there any reason we cannot finish Sharyl Zeno, CSR (214) 653-6747 109 1 it tomorrow? 2MR. PARRISH:I need to check whether I 3 have an obligation for a hearing in Austin, but I can 4 probably get it covered if I do. 5THE COURT:I mean, I do not want to 6 cancel the hearing tomorrow if you have a court-ordered 7 something tomorrow.Can you check during the break? 8MR. PARRISH:I can.I'll try. 9THE COURT:That is all that is left is 10 yours.Do that during the break.Let's take a 11 ten-minute break.And that effects you, too. 12MR. SPARKS:That's all right.I 13 understand.I believe so, Your Honor. 14THE COURT:I am assuming everybody would 15 rather get this over with. 16MR. SPARKS:I think I'm okay. 17(Recess was taken.) 18THE COURT:Back on the record. 19Q.(By Mr. Parrish) Mr. Simmons, at any point from 20 1998 on were you ever asked by Mr. Dixon whether Jenkens 21 & Gilchrist would represent him individually? 22A.No. 23Q.Do you have an opinion as to what the firm's 24 position would have been had the firm been asked to 25 represent Mr. Dixon individually? Sharyl Zeno, CSR (214) 653-6747 110 1A.Yes. 2Q.What is that opinion? 3A.The firm would not have represented him 4 individually. 5Q.In the representation that firm undertook while 6 you were with Jenkens & Gilchrist in the 1966 period 7 going forward, did you participate in litigation with Mr. 8 Dixon? 9A.I defended Raldon.And as I said, I don't know 10 whether he was named individually, but I did defend the 11 company. 12Q.Other than in situations where he was named as 13 an officer of the company in a lawsuit against an entity, 14 did you represent Mr. Dixon individually in connection 15 with any litigation while you were with the firm at 16 Jenkens & Gilchrist, where it was a suit against him 17 other than as an officer of the company? 18A.No. 19Q.Did you communicate any information that you had 20 learned from any prior representation of Mr. Dixon to 21 lawyers representing Sterling Media after 1998 or 1999? 22A.No. 23Q.Have you communicated -- do you have any 24 information regarding Mr. Dixon which, to your knowledge, 25 would be confidential information related in any way to Sharyl Zeno, CSR (214) 653-6747 111 1 transactions that took place between Mr. Dixon and any 2 other individuals or entities after 2001? 3A.No. 4MR. PARRISH:Pass the witness. 5 CROSS-EXAMINATION 6 BY MR. SPARKS: 7Q.Let me take you back to the beginning, Mr. 8 Simmons.I apologize for talking to you down here, but I 9 don't think the wires will stretch to stand up there. 10A.Doesn't bother me. 11Q.You and I just met an hour or so ago out in the 12 hall.Is that correct? 13A.Yes, sir. 14Q.We don't know each other from the past? 15A.No, I don't think so. 16Q.Do you know Deborah Goodall? 17A.Yes, sir. 18Q.And have you met her during your representation 19 of Don Dixon? 20A.Yes, sir. 21Q.And have you been at meetings in which Deborah 22 Goodall was also present? 23A.Yes. 24Q.And were those meetings involving, for example, 25 the bankruptcy out in California? Sharyl Zeno, CSR (214) 653-6747 112 1A.I think that was the first time she was in a 2 meeting. 3Q.And do you recall how many meetings there were 4 out in California regarding the bankruptcy? 5A.I don't. 6Q.What would be your best guess? 7A.Seems like it would have been 2 or 3. 8Q.Okay.Do you recall if there were also some 9 meetings with criminal counsel that you attended and she 10 attended? 11A.Yes. 12Q.That would have been Billy Ravkind? 13A.Yes, sir. 14Q.Do you recall how many meetings there were with 15 Mr. Ravkind? 16A.I don't.A few.They would have certainly been 17 3 or 4, 2 or 3. 18Q.Do you recall that there were also meetings to 19 go over the complaint that the FSLIC filed against Vernon 20 Savings & Loan against Mr. Dixon? 21A.I did not remember that.Deborah and I were 22 talking out in the hall, and she said that I didn't 23 recall that. 24Q.Is that -- 25A.I remember going over the complaint, certainly, Sharyl Zeno, CSR (214) 653-6747 113 1 but I don't remember meetings to do that. 2Q.Okay.Having spoken with her about that, does 3 that refresh your memory that there were such meetings? 4A.No, it doesn't.I still don't remember. 5Q.So you're not saying it didn't happen.You just 6 don't remember? 7A.That's correct. 8Q.Let's go back to the initial representation of 9 Jenkens & Gilchrist, when Jenkens first started 10 representing Don Dixon back in the 60's.And whatever 11 firm name it was using then, I will just refer to it as 12 Jenkens. 13A.Fine. 14Q.Do you recall basically how and when you met Mr. 15 Dixon and why? 16A.I don't remember when, but it would have been on 17 the occasion of Raldon being sued by a man from 18 California named Newton Licter (phonetic).Not Lecter 19 the Hannibal guy.Licter sued Raldon, and I think that 20 was the reason that Bill Thau introduced me to Don Dixon; 21 to defend Raldon.That could have been '69 or '70.I 22 just really don't remember. 23Q.Would it be fair to say that Bill Thau was Mr. 24 Dixon's real estate lawyer? 25A.Yes, and I think Bill would -- he was the point Sharyl Zeno, CSR (214) 653-6747 114 1 man as far as that representation. 2Q.That's exactly the question I was going to ask 3 you, sir.If there was a point man at Jenkens & 4 Gilchrist, that would have been Bill Thau.Is that 5 correct? 6A.True. 7Q.Would that be because the majority of the 8 transactions that took place between Mr. Dixon or his 9 companies, and whoever else they were doing business 10 with, were real estate related, if not all of them? 11A.I don't know.Seems like there would have been 12 corporate representations.May have been tax law.I 13 don't know.Certainly Bill's area of expertise was real 14 estate, and he did a lot of work for the Raldon and 15 Dondi? 16Q.Right. 17A.Those companies.They were acquiring land and 18 putting up fourplexes and selling them.It was a 19 development company. 20Q.Okay.Do you recall that in the 60's, 70's, and 21 80's, Jenken's representation of Mr. Dixon and his 22 companies was very extensive.Would that be a fair way 23 to say it? 24A.My awareness would have been only in the 70's, 25 really.I don't know what they did from '80 on, really. Sharyl Zeno, CSR (214) 653-6747 115 1 I think it was considered a good client of the firm.I 2 don't know how substantial it was or what percentage of 3 the gross revenues it represented, but it was -- I think 4 that those companies were -- they were considered a good 5 client. 6Q.Mr. Dixon has testified that he or his companies 7 paid Jenkens over five million dollars in fees during the 8 period of time from '66 to '87.Would you disagree with 9 that? 10A.Wouldn't agree or disagree.Don't know.Never 11 looked at the numbers like that. 12Q.He's testified there were hundreds if not 13 thousands of transactions that Jenkens was involved in 14 either papering or negotiating, including loans that were 15 papered up with Vernon Savings & Loan, which I think he 16 said were in excess of a billion dollars of loans.Would 17 you agree or disagree with that? 18A.No knowledge. 19Q.Okay.It might be true, might not, is what 20 you're saying? 21A.Yes.It sounds like a big number, but it could 22 be, as far as I know. 23Q.Okay.And you've testified that at some point 24 you became Mr. Dixon's friend as well as his litigation 25 attorney.Is that right? Sharyl Zeno, CSR (214) 653-6747 116 1A.Yes.We traveled together.Spent a lot of time 2 together on that lawsuit.We went to California two or 3 three times, as I recall, and we had good chemistry and 4 we became friends and socialized together. 5Q.Being a litigation attorney with a large law 6 firm, would it be fair to say that from time to time 7 corporate clients have individuals who are the point 8 people for those corporations who ask for legal advice 9 from lawyers at the law firm and get it? 10MR. PARRISH:Object to form. 11Q.In other words, if you have a -- well, let me 12 ask you this.You represented Clint Merkinson and his 13 companies, did you not? 14A.Yes. 15Q.You represented both Mr. Merkinson and his 16 companies? 17A.And his children. 18Q.And from time to time when you were there, 19 perhaps, formally to talk about a company, without going 20 into any advice you might have given, would it be fair to 21 say that from time to time either Mr. Merkinson or 22 members of his family or other people might ask you a 23 legal question? 24A.Well, because I was always -- my relationship 25 with the companies, the family and Clint, Jr., was in Sharyl Zeno, CSR (214) 653-6747 117 1 litigation.They never asked me, to my recollection, 2 didn't ask me any tax questions or corporate questions or 3 real estate questions.We would primarily discuss 4 lawsuits involving the family or the companies. 5 Honestly, as I sit here, I can't tell you. 6Q.Here is my question to you, Mr. Simmons.Isn't 7 it fair to say that when you represent someone like that, 8 a corporation, it may well be that the president comes up 9 to you one day or over lunch, breakfast or dinner and 10 says hey, Judge -- and by the way, that is what Mr. Dixon 11 called you, isn't it?He referred to you as, Judge? 12A.A lot of people called me that.Most of them 13 because they couldn't remember my name. 14Q.For whatever reason, he referred to you as 15 Judge, did he not? 16A.Yes, he did. 17Q.Did he have a practice from time to time of 18 asking you what you thought about something from a legal 19 perspective and would say to you, Judge what do you think 20 about this? 21A.I don't think he asked my opinion on business 22 matters. 23Q.Well, not necessarily limiting it to business 24 matters.I'm asking you whether or not -- 25A.Can you give me another example? Sharyl Zeno, CSR (214) 653-6747 118 1Q.Well, other legal matters maybe not directly 2 related to an entity.For example, -- put it this way. 3 You've testified that you were involved in several 4 meetings related to the bankruptcy. 5A.Yes. 6Q.And would it be fair to say that you're not -- 7 you're not a bankruptcy lawyer? 8A.No, but as I mentioned, I had been of-counsel to 9 a bankruptcy firm.So just to -- accidentally I learned. 10 By being in the courtroom I did learn some bankruptcy 11 law. 12Q.Were you there because of your legal expertise 13 as a bankruptcy lawyer? 14A.No. 15Q.Why were you there? 16A.Because I was the matchmaker. 17Q.And did you have knowledge of facts and 18 circumstances? 19A.What?I'm sorry, what facts and circumstances? 20Q.Any.Did you have knowledge of Don Dixon's 21 background, facts and circumstances that you conveyed 22 during the meetings to the bankruptcy lawyer? 23A.No.I did not.Don was there.They got that 24 information from Don.I knew Don from the time that I 25 first represented Raldon in litigation.I also knew that Sharyl Zeno, CSR (214) 653-6747 119 1 he had gone to Rice University. 2Q.Well, Mr. Simmons, it's your testimony that 3 while you were there, no one asked your opinion about 4 matters relating to Don Dixon and that you were there 5 simply as a matchmaker? 6A.What I'm having trouble with is the word 7 "opinion."My opinions. 8Q.Well, let's don't limit it to opinions.Not 9 asking you -- actually, I didn't ask you about opinions. 10 I asked you about your knowledge of the background, facts 11 and circumstances.I'm asking you that in connection 12 with these meetings that were to discuss what Don was 13 supposed to do with respect to bankruptcy. 14A.I had a lot to say about his problem with the 15 fed's. 16Q.You knew more about that than just about 17 anybody, wouldn't it be fair to say? 18A.Well, in so far as Don Dixon being a defendant 19 in the lawsuit, was it the FSLIC or the FDIC?One or the 20 other sued in the federal court in Dallas, sued Don and 21 several other of the Vernon people, and I knew more about 22 Don's situation than I did, than anybody else except Don. 23 The other defendants had their own lawyers and they knew 24 what they knew. 25Q.Okay.And was part of the reason that you were Sharyl Zeno, CSR (214) 653-6747 120 1 in these meetings out in California to convey what you 2 knew to the bankruptcy lawyer? 3A.Yes. 4Q.That went beyond assets and liabilities and 5 schedules in bankruptcy court, didn't it? 6A.It didn't include those things. 7Q.Right.It was outside and separate from those 8 things. 9A.It was what -- it was the situation Don was in 10 vis-a-vis the federal government and the lawsuit had 11 not -- I mean, the lawsuit had not been filed. 12Q.Would it be fair to call it strategic? 13A.Yes.It was strategy; what to do to best 14 position Don for the hurricane that was coming down the 15 pipe. 16Q.Getting ready to happen. 17A.It was imminent.As a matter of fact, I think 18 they sued the week after we filed the Chapter 11. 19Q.Would it be fair to say that because of your 20 knowledge of all the facts and circumstances about Don 21 Dixon that you had a heightened insight that made you 22 valuable in that meeting? 23A.I made a contribution, yes, sir. 24Q.You wouldn't disagree with my characterization? 25A.Well, it would -- either read it back or say it Sharyl Zeno, CSR (214) 653-6747 121 1 again.See if I can agree. 2THE COURT:What was the date of these 3 meetings? 4THE WITNESS:That would have been in the 5 spring of '87, Your Honor. 6THE COURT:Thank you. 7Q.Heightened insight. 8A.I don't -- I knew what Don's situation was, and 9 I had a contribution to make in terms of planning 10 strategy to try to put him in the best possible position 11 when the hurricane struck. 12Q.Okay.And you remained his friend since that 13 time until today.Wouldn't that be a fair statement? 14A.Well, Don and I haven't had any interaction in 15 several years.I think I would say he's still a friend. 16 He's not a close friend -- 17Q.Okay. 18A.-- today, but... 19Q.When was the last time you had interaction? 20A.He called me on the telephone last week to tell 21 me that my name had been taken in vain in this 22 proceeding. 23Q.Prior to that, when was the last time that you 24 had any real close association where you went someplace 25 together, did something together as friends?Wasn't Sharyl Zeno, CSR (214) 653-6747 122 1 there a time when you and he were going to travel to 2 Mexico together and somebody got sick and you couldn't do 3 that? 4A.That probably was before 2000, seems like.He 5 and Dana were going to come down to a place that my wife 6 and I have in Mexico, and I think he developed arrhythmia 7 or something, and because of the high altitude he 8 couldn't make the trip. 9Q.You know about his heart problem? 10A.Yes. 11Q.You know about his health problems? 12A.I don't know what they are today, no. 13Q.But you know he's had a pretty serious, I guess 14 you'd call it an incident or he's had a heart attack or 15 some type of incident? 16A.I knew that he had, yes. 17Q.You visited him a couple times while he was in 18 the penitentiary? 19A.I did. 20Q.You provided him with informal legal advice from 21 time to time when he asked you to during that period of 22 time? 23A.In jail? 24Q.Well, during your friendship. 25A.From time to time he would ask me a question, Sharyl Zeno, CSR (214) 653-6747 123 1 and if I thought I -- involving the law, and if I thought 2 I was qualified to give him an answer, I did.If I 3 didn't, I said I don't know. 4Q.Okay.Why would it be that he would ask you 5 those kinds of questions, Mr. Simmons? 6A.Besides it being free? 7Q.Well, that too.Free and valuable.Why else? 8A.Because we were together.I mean, really, it 9 was a matter of being available.I was available, and I 10 wasn't going to charge him. 11Q.And you knew the background? 12A.I knew his history from the time I -- no, I take 13 that back.From 1980 to 1986, I don't think we spoke 14 once. 15Q.Okay. 16A.There's a gap in there. 17Q.There's a gap in there, but other than that you 18 knew the background? 19A.Yes. 20Q.Okay.And you certainly knew the background 21 after 1986 when the criminal matter came up and the 22 bankruptcy matter and the FSLIC lawsuit and so forth? 23A.I was very much involved maybe on a daily basis 24 from the fall of '86 until the fall of '88. 25Q.Now, let me -- Sharyl Zeno, CSR (214) 653-6747 124 1THE COURT:All right.I need to stop 2 you. 3The informal advice that you gave -- what date 4 did you retire from the firm, again?I'm sorry. 5THE WITNESS: September 30th of last year. 6THE COURT:Last year. 7THE WITNESS:Yes.All of that, what he's 8 talking about was back in the 70's and the late 80's. 9THE COURT:So you retired from Jenkens & 10 Gilchrist in 2005? 11THE WITNESS:September 30, 2005. 12THE COURT:And the informal advice, the 13 free advice -- 14THE WITNESS:Long predated that. 15THE COURT:I understand.On and off, 16 whenever, it definitely was through mid 80's? 17THE WITNESS:It would have started in-- 18THE COURT:Just tell me the dates of the 19 informal advice, the free advice you just told me about. 20THE WITNESS:It would have been after-- 21THE COURT:Best of your knowledge. 22THE WITNESS:It would have started being 23 free in '89. 24THE COURT:Up to when? 25THE WITNESS:It could have happened in Sharyl Zeno, CSR (214) 653-6747 125 1 '98. 2THE COURT:Thank you. 3You can continue.I wanted to get the 4 dates down. 5Q.(By Mr. Sparks) Let me go back and ask you about 6 some questions that came up at the very beginning of your 7 direct examination by Mr. Parrish.You said back in '86 8 through '88 for a period of about two and a half years, 9 as I wrote it down, that you represented Don 10 individually.Correct? 11A.Yes, sir. 12Q.And that people in Jenkens would have 13 represented the companies that Don owned or was involved 14 in, correct? 15MR. PARRISH:Could we get a time frame on 16 on that? 17A.Not in that period of time, I know nothing 18 about. 19Q.Well, I wrote down what I thought you said; that 20 for a period of two and a half years, from June of '86 21 until the end of '88 you represented Don individually but 22 you did not represent any company.You represented him 23 personally, strictly personally.Would that be accurate? 24A.Yeah, I don't remember doing anything for any 25 companies during that '86, '87, '88 period.Where I Sharyl Zeno, CSR (214) 653-6747 126 1 think you're wrong is that I don't know what, if 2 anything, Jenkens was doing in that period of time for 3 any companies.Didn't seem to me that Don, his companies 4 or Don, either one of them were doing anything with 5 Jenkens at that time. 6Q.I've confused you.Let me back up further 7 because I don't want to -- I'm confused now. 8You met Don sometime in the late 60's, correct? 9A.Or early 70's. 10Q.Okay.How many lawyers were at Jenkens, 11 roughly? 12A.Well, I'll have to -- I don't know.Let me 13 answer it this way, please. 14Q.Okay. 15A.When I went there in '67 there were ten lawyers. 16 When I left in '82 there were 125.Could have been 20. 17 Could have been 25 maybe in early 70's. 18Q.Okay.Now, is it your testimony that you 19 represented Don strictly personally during that period of 20 time? 21A.Now, you're not talking about the 70's, are you? 22Q.No, sir.I'm trying to be real specific and 23 trying to be real -- 24A.Fine.Starting in the summer of '86. 25Q.No, sir.My question is earlier. Sharyl Zeno, CSR (214) 653-6747 127 1A.Tell me when you're asking about, and I'll try 2 to answer. 3Q.From the time you first met Don Dixon sometime 4 in the late 60's or early 70's forward until, let's say, 5 '82, during that period of time did you represent Don 6 individually and personally only? 7A.Never. 8Q.Okay.Did you represent companies that he was 9 involved with when they were in litigation? 10A.Yes. 11Q.If he was sued personally and his company was 12 also sued, were you involved in that litigation? 13A.If he was named individually along with a 14 company, then I was representing Don as a defendant and I 15 don't remember him ever being sued personally, solely. 16Q.All right.Do you recall becoming friends with 17 him during that period of time? 18A.Yes. 19Q.Okay.You mentioned BRC.That was a name that 20 you mentioned in your direct examination.Do you recall 21 an entity by the name of BRC?Maybe I misunderstood. 22MR. PARRISH:Objection.I think that 23 misstates his testimony. 24A.I don't know what that is. 25Q.Okay.All right. Sharyl Zeno, CSR (214) 653-6747 128 1A.If I said that, I misspoke. 2Q.Okay.Do you recall meeting at any time Mike 3 Marix? 4A.I do not. 5Q.You don't remember anything about Mr. Marix or 6 you remember some things about him or what?What is the 7 extent of your recollection as you sit here today 8 regarding Mike Marix? 9A.When I asked Bill Parrish who the plaintiff was, 10 he gave me that name, and I thought, I think I've heard 11 of that name.I was spelling it M-a-r-e-c-k.He said, 12 no, that's a different guy.This is M-a-r-i-x. 13Q.Let me represent to you, sir, that Mr. Dixon has 14 testified that he met Mr. Marix sometime around 1969 when 15 BRC was a lender or a venture capital company that came 16 in and loaned some money to Raldon to effectuate an 17 acquisition to go build homes.Do you have any knowledge 18 of that? 19A.What is BRC?Does it stand for something? 20Q.I'm sure it does.I can't tell you what the -- 21A.I'm sorry.That doesn't sound like anything I 22 know.When Bill told me about Mr. Marix, who he was, I 23 asked my wife if she remembered him because I didn't.I 24 didn't at all.Still don't. 25Q.At that point in time, would the point person Sharyl Zeno, CSR (214) 653-6747 129 1 for real estate or lending transactions between Jenkens 2 and Mr. Dixon have been you or Mr. Thau? 3A.Oh, Thaw. 4Q.And if somebody would have been involved in 5 giving Mr. Dixon advice about a transaction or hiring 6 someone in connection with that, would that have been you 7 or Mr. Thau? 8A.Bill Thau. 9Q.And let's suppose that Mr. Dixon -- well, let me 10 ask you this.In that time frame, would you have 11 considered yourself someone who was closely involved in 12 the day-to-day representation of Mr. Dixon or his 13 companies? 14A.No. 15Q.Were you speaking with him on a regular basis 16 about those matters? 17A.No. 18Q.Did you consider yourself to be a close 19 confidant of him during that period of time?I'm talking 20 about the late 60's now. 21A.No. 22Q.Okay.If Mr. Dixon had, per chance, mentioned 23 to you the fact that he was going to hire somebody in 24 connection with some transaction, as you sit here today 25 do you honestly think you would remember that? Sharyl Zeno, CSR (214) 653-6747 130 1A.I guess it could depend on who it was.If it's 2 a name that -- I mean, if he said he was going to fire 3 Dawn Beauler (phonetic), I'd remember that. 4Q.Do you have recollection of having been asked 5 about decisions like that by Mr. Dixon? 6A.No.Never.I don't think -- I can't remember 7 Don ever asking my advice on anything like that. 8Q.Okay. 9A.That -- I'm sorry, but Don and Bill Thau, they 10 talked probably of every day at that time; late 60's. 11 And that could be off.But if he had had a question like 12 that, he would have asked Bill Thau. 13Q.Okay.Did Jenkens have an office in the Vernon 14 Savings & Loan building during that period of time or 15 shortly thereafter? 16MR. PARRISH:Could we have a time 17 reference? 18A.'69, '70, '80.They could have.If they did I 19 don't remember ever being in it. 20Q.You don't recall whether they did or did not? 21A.I do not. 22Q.Okay. 23A.But it wouldn't surprise me if they did.When I 24 went out there, I was in the -- was it Raldon offices? 25Q.Yes, sir. Sharyl Zeno, CSR (214) 653-6747 131 1A.Carolyn Tower.That's where I went to meet, 2 where Dawn and Raleigh Blakeley officed. 3Q.Okay.Now, you were asked some questions by 4 counsel that I want to ask you about.You were asked in 5 what I thought was a very leading and suggestive way, 6 I'll say to you as a lawyer, whether or not the firm -- 7 it was phrased to you this way.Isn't it true that the 8 firm, meaning Jenkens, did not give Mr. Dixon personal 9 legal advice after a certain point in time?That was the 10 question to you.Then you said, no, they didn't. 11Let me just inquire of you, sir.How long did 12 you practice law before you retired? 13A.48 years and 3 months. 14Q.Okay.And how long were you responsible for 15 ethical questions that came up in Jenkens? 16A.Specifically 11 years. 17Q.Okay.And you know, don't you, sir, that you 18 don't have to have a bill from a client for the 19 information or communications that you have with him to 20 constitute privileged communications that would be 21 subject to the attorney/client privilege.You know that, 22 don't you? 23A.Yes, sir, I know that. 24Q.You know he doesn't have to formally be your 25 client to assert a privilege with respect to that Sharyl Zeno, CSR (214) 653-6747 132 1 conversation. 2 I guess I probably threw the word "client" in 3 there and messed that question up.Let me go back. 4 You know he doesn't have to formally be your 5 client on a piece of paper somewhere? 6A.That's true. 7Q.All that's necessary is that he seeks the 8 rendition of legal advice from you and that the 9 conversation is private, and that there is a reasonable 10 expectation of privacy around that conversation.Isn't 11 that it? 12A.That's my recollection last time I looked at 13 that law. 14Q.All right.And isn't it true, sir, that even 15 though a lawyer may be working for a company and doing 16 legal work for that company, he may have a conversation 17 with the president or the vice president or some other 18 representative of that company in which that 19 representative asked him for some kind of legal advice 20 and he gives it to him, that happens all the time, 21 doesn't it? 22A.Yes, it does. 23Q.And that doesn't show up on some bill to John 24 Doe, the president and the CEO of Smith Corporation, just 25 because he gets 30 minutes of legal advice about whether Sharyl Zeno, CSR (214) 653-6747 133 1 or not who ought to represent his grandson in a DWI case 2 or whether or not so-and-so is a good divorce lawyer or 3 whether or not so-and-so ought to file bankruptcy or what 4 he ought to do about a loan on his house or whether or 5 not he should take out a negative equity mortgage or on 6 and on, does it? 7A.I don't think that would show up on the time 8 sheet, but in my experience, it usually occurs at a time 9 when the lawyer is on that client's clock. 10Q.Okay.Usually, but not always? 11A.Nothing is always, as far as I know. 12Q.Especially -- 13A.That's when it usually happens, in my 14 experience. 15Q.Yes, sir.And especially if the lawyer and 16 person have become friends, that happens more informally 17 and more frequently.Wouldn't it be fair to say? 18A.I don't know. 19Q.It does happen? 20A.I only know my own experience.I can't speak 21 for other lawyers. 22Q.Would it be fair to say, based on your 23 experience, that the more important the client and the 24 more fees that are generated by companies that that 25 client is the point person for, there is certainly more Sharyl Zeno, CSR (214) 653-6747 134 1 consideration by the lawyer to try to give that kind of 2 advice to that person.Would that be a fair statement? 3A.Honestly, I don't think the money is a factor. 4 I think that as the lawyer develops a relationship with 5 an individual who is an officer of a client, that that's 6 more likely to happen. 7Q.Okay. 8A.And the lawyers -- I don't think it happens the 9 first 2 or 3 meetings, but over years that will become 10 more frequent. 11Q.Mr. Simmons, at the closest, how would you 12 characterize your relationship with Don Dixon? 13MR. PARRISH:At what point in time? 14Q.At the time that your relationship was the 15 closest, when you were the closest of friends or the most 16 extensively involved in his legal efforts or both, 17 whatever you would characterize as closest; the most 18 intensely involved you were in Don Dixon's affairs, how 19 close was that? 20A.Is very, is that an answer?Very close. 21Q.Yes, sir.I believe you described it as the 22 impending storm or the coming storm. 23A.It was when Don was beset with problems from 24 every direction, and especially the criminal problems, 25 which I thought was a travesty, and we were very close Sharyl Zeno, CSR (214) 653-6747 135 1 during that period of time.I was trying to help him 2 with his problems. 3Q.Without going into any privileged communication, 4 what do you mean by you thought it was a travesty? 5A.I thought he was -- boy, that's about a half an 6 hour answer, honestly.I thought he was convicted on 7 perjured testimony.I thought he was convicted -- if 8 there were any funds that he -- that he had used 9 personally, they would have been considered perks of the 10 CEO of the company ten years earlier or today.Well, 11 wait.Not today. 12Q.Would it be fair to say that you thought that 13 his conviction was unjust and unfair? 14A.Absolutely. 15Let me just say one other thing.When he was 16 sued by the federal government, they alleged that he and 17 the other people at Vernon had looted the Savings and 18 Loan of billions of dollars.Now, interesting thing is 19 he was the biggest owner so why would he steal?But 20 that's another question.The amount of money involved in 21 the criminal case was less than $500,000. 22Q.Okay.In your dealings with Mr. Dixon, did you 23 find him to be a credible individual? 24A.Mostly. 25Q.Okay.In your dealings with Mr. Dixon, did you Sharyl Zeno, CSR (214) 653-6747 136 1 find that the -- well, let me ask this.Were you present 2 when he was sentenced by Judge Fisch? 3A.No. 4Q.Do you recall that Judge Fisch uprated the 5 United States attorney for accusing Don Dixon of bringing 6 down Vernon Savings & Loan and failing to prove that in 7 the case that they tried? 8A.He did that in writing, and I read the opinion 9 and said amen.Because the civil case -- the government 10 got a bad break because the civil case had been in his 11 court, and he expected the government to come in and 12 prove the looting. 13Q.And they didn't do it? 14A.Didn't do it. 15MR. PARRISH:Your Honor, I object to 16 relevance.This line of questioning is irrelevant to the 17 issue. 18THE COURT:You want to move on? 19MR. SPARKS:I'll move on. 20THE COURT:Okay.It is interesting, but 21 let's move on. 22Q.(By Mr. Sparks) Mr. Simmons, whenever Don Dixon 23 would ask you for advice of a legal nature, and I am not 24 trying to be specific as to some piece of advice, but 25 whenever he would ask you for that kind of advice of a Sharyl Zeno, CSR (214) 653-6747 137 1 legal nature, you brought, in effect, your lifetime, your 2 20 or 30 years of knowledge of Don Dixon, his background, 3 Vernon Savings & Loan, his criminal prosecution, and all 4 those matters to the table when he asked you for that 5 advice, didn't you, sir?Who else knew that, but you? 6A.Can you give me a time frame? 7Q.Say he came to you sometime in '98.You said 8 that may be the last time he asked you for informal 9 advice.Isn't it true? 10A.That's just a guess. 11Q.I'm sorry? 12A.That's a wild guess as to when the last time Don 13 asked me anything having to do with the law. 14Q.Well, let's take that.Isn't it true that when 15 he asked you for that piece of advice, what you brought 16 to the table, in addition to your knowledge of the law 17 and what the answer might be, your years, your decades of 18 years of experience of watching him go through this storm 19 and representing him in the multitude of ways that you 20 did, true? 21MR. PARRISH:Your Honor, object to the 22 form of the question.It is totally out of context with 23 what's being asked.It assumes that the question asked 24 had anything to do with that history. 25THE COURT:Overruled.You can answer it Sharyl Zeno, CSR (214) 653-6747 138 1 if you can.If you cannot, do not. 2A.I don't know.It seems almost rhetorical.I 3 brought to the table whatever my history was with Don 4 Dixon and however many years I'd practiced law. 5Q.Well, is it your contention, sir, that none of 6 that information is privileged? 7A.I don't contend one way or the other.I don't 8 remember -- 9Q.Okay. 10A.I don't remember most of 99 or 99.9 percent of 11 the information, and I sure don't remember it well enough 12 to impart it to anybody. 13Q.But you're not contending that it wasn't 14 confidential or privileged? 15A.As I said earlier, it never occurred to me one 16 way or the other, and I don't know what the law is, and I 17 know that you can have an informal relationship that 18 rises to the level of privileged communication. 19Q.Mr. Simmons, do you remember kicking Deborah 20 Goodall out of a meeting one time regarding the criminal 21 matter because you were concerned that to have her 22 present, because she was only an employee of Billy 23 Ravkind, might constitute a waiver of the privilege in 24 some indirect way? 25A.No.I bet she does. Sharyl Zeno, CSR (214) 653-6747 139 1Q.Ron Trost's office in California? 2A.I said no.I don't care if you tell me where or 3 when.I don't remember, but I'm not surprised I did. 4Q.I'm not either, and I think it was a good move 5 on your part. 6A.And I'm not saying those communications were not 7 privileged.I told you I never thought about it one way 8 or the other. 9THE COURT:Mr. -- 10A.And I never repeated anything Don told me, so 11 the effect was the same. 12Q.Okay.Here's the question.You were asked a 13 very leading and suggestive question by Mr. Parrish over 14 here who was just doing his job.You don't believe you 15 had confidential information in your head at various 16 times.Was there ever a point in time when you didn't 17 have confidential information in your head about Don 18 Dixon? 19A.I said I never had confidential information in 20 my head? 21Q.Yes, sir.You said you don't believe you had 22 confidential information in your head.I typed it down. 23 Maybe I put it down wrong, but that is what I -- 24MR. PARRISH:Your Honor, we object.It 25 misstates his testimony. Sharyl Zeno, CSR (214) 653-6747 140 1THE COURT:Overruled. 2A.Whatever -- that is not a true statement.If I 3 said it -- 4Q.It's not true? 5A.It's not -- I still have confidential 6 information about Don Dixon that has nothing to do with 7 this hearing, and you don't want to ask me. 8Q.You're exactly right, and I'm not. 9THE COURT:Mr. Sparks, do you know how 10 much you have left? 11MR. SPARKS:8 to 10 minutes, Your Honor. 12THE COURT:I need you to speed it up.I 13 need talk to counsel before 4 o'clock, otherwise we have 14 to pick up with him tomorrow. 15MR. SPARKS: Okay. 16Q.(By Mr. Sparks) Why, sir, would you have to go 17 to David Laney relating to Sterling in 1999 to get 18 specific permission from Mr. Laney to represent Sterling 19 Media? 20A.I was not a shareholder.I was not -- I was 21 of-counsel.I couldn't agree for the firm to represent 22 anybody. 23Q.Why would you go to David Laney and not just go 24 to the next litigation lawyer down the hall?Why David 25 Laney? Sharyl Zeno, CSR (214) 653-6747 141 1A.He was the managing partner.I thought it was 2 his call. 3Q.Why would it be -- what kind of call are we 4 talking about? 5A.Whether to represent a company that is being 6 brought to the firm by Don Dixon. 7Q.Why was the fact that Don Dixon bringing a 8 company to the firm relevant? 9A.Because, this is just my opinion, but rightly or 10 wrongly, he was a convicted felon and that was an unusual 11 situation; unique, in my experience, with the law firm. 12Q.How about the fact that he was a former client 13 of Jenkens? 14A.How about it what? 15Q.What impact would that have had on your decision 16 or should have had on your decision? 17A.I didn't make any decisions.My decision was to 18 go ask David Laney if it was okay to -- would the firm 19 represent Sterling Media.He made a decision. 20Q.Appreciate your time, sir.Thank you. 21MR. SPARKS:Pass the witness. 22THE COURT:Anything further? 23 REDIRECT EXAMINATION 24 BY MR. PARRISH: 25Q.You indicated that you had a belief at the time Sharyl Zeno, CSR (214) 653-6747 142 1 that if Mr. Dixon had asked the firm to represent him 2 individually, the firm would have declined to do so. 3 Explain why you hold that belief. 4A.Well, it's the same -- it was the firm's policy 5 to try to, in representing clients, to improve the firm's 6 reputation and not hurt it.Just the bare fact that Don 7 had that history would not have been a big plus for the 8 law firm.Probably would not have wanted to list that in 9 Martindale. 10Q.Was it your understanding that Mr. Dixon's 11 connection with the company was as a consultant as 12 opposed to a principal of the company? 13A.I knew he wasn't a principal.I think it was 14 consultant.I never saw any written agreement or 15 anything with the company.I knew -- I knew when he 16 represented that or he told me that he had no ownership 17 interest, he wasn't a partner, had no stock options or 18 anything like that. 19MR. PARRISH:No further questions. 20MR. SPARKS:Nothing further, Your Honor.