Mark D. White 2013-11-29 23:04:50
How the State Bar of Texas, the Legislature, and the Supreme Court of Texas work together to maintain an efficient system that balances the protection of both the public and the lawyer. Just as lawyers carry out a unique function for the citizens of Texas, the State Bar occupies a unique role in state government and the administration of justice. As a quasi-governmental agency of the judicial branch, the State Bar sits atop a three-legged stool with the functions of: • Self-Regulation. It operates as a professional association that sets and enforces standards of conduct and regulates itself; • Legislative Regulation. The Legislature authorizes the structure and function of the State Bar through the State Bar Act in the Government Code; and • Judicial Regulation. The Supreme Court of Texas has the inherent power to exercise administrative control over the State Bar. In other words, lawyers in Texas are controlled and regularly scrutinized by three proper constituents: (1) themselves acting through the State Bar; (2) the public acting through the Legislature; (3) and the court system acting through the Supreme Court of Texas. The Supreme Court has delegated the responsibility for administrating and supervising lawyer discipline to the board of directors of the State Bar of Texas.1 Because of the importance of lawyers in our society, it is not surprising that these complicated and sometimes cumbersome relationships exist. PURPOSE OF THE STATE BAR The State Bar Act provides that one of the bar’s purposes is “to foster and maintain on the part of those engaged in the practice of law high ideals and integrity, learning, competence in public service, and high standards of conduct.”2 This article reviews the evolution of the Texas lawyer disciplinary system and its relationship to the Legislature and the Supreme Court of Texas. CONCEPT OF LAWYER DISCIPLINE Over the years, the concept of lawyer discipline has been confused with the broader term “public protection.” In addition to the evolution of disciplinary rules defining minimum standards of conduct for lawyers, there has been an evolution of the disciplinary procedure utilized by the bar and courts to assess appropriate sanctions against lawyers, as well as an expansion of the bar’s initiatives that go far beyond merely sanctioning lawyers who violate ethics rules. Examples include the Client- Attorney Assistance Program, which assists clients in disputes with lawyers where no violation of a disciplinary rule has occurred; the Client Security Fund, which provides a measure of restitution to aggrieved clients; the Texas Lawyers’ Assistance Program, which provides attention to substance abuse by lawyers; and many other public protection projects implemented by committees of the State Bar and the Texas Young Lawyers Association. The functions of these initiatives are beyond the scope of this article, but it should be noted that they supplement the disciplinary system so as to provide direct and sometimes immediate assistance to clients and lawyers in a way that disciplinary action cannot. Lawyer discipline is merely a component of the bar’s overall public protective efforts. FRAMEWORK OF LAWYER DISCIPLINE The actual framework of Texas lawyer discipline, as opposed to other public protection initiatives, has evolved as the lawyer population has grown; as the practice has become more sophisticated and complex; and as the bar, court, and Legislature have worked together to maintain an efficient system that balances the protection of both the public and the lawyer. TIMING OF SUNSET REVIEW Because lawyer discipline is a core mission of the bar and a major part of its budget, it has deservedly been the subject of scrutiny by many groups over the years. In addition to setting the details of how the bar is to be organized, the Government Code legislation also provides that the bar is subject to sunset review every 12 years.3 The Sunset Advisory Commission first reviewed the State Bar in 1978 for the 66th Legislature convening in 1979, in 1990 for the 72nd Legislature convening in 1991, and again in 2002 for the 78th Legislature convening in 2003. The next sunset review was scheduled 12 years later, in 2014, in anticipation of the 84th Legislature convening in 2015. However, Senate Bill 652, signed into law June 17, 2011, extended the sunset review date for the bar until 2017.4 This extension was not at the urging of the State Bar. Rather, the Legislature frequently changes the review schedule for certain agencies to balance the work load of the Sunset Advisory Commission and to better align the reviews of agencies by grouping them based on subject matter. Therefore, the State Bar will automatically continue in existence through September 1, 2017, and thereafter, at the pleasure of the Legislature, and will be reviewed by the Sunset Advisory Commission beginning in 2016. 1978-1979 SUNSET REVIEW The pre-1979 disciplinary system was much different than it is today. Local grievance committees in each bar district investigated and prosecuted disciplinary complaints on a non-compensated basis. These local committees had full autonomy in the hearing and disposition of grievances. The bar’s administrative staff was involved only upon request by a district grievance committee. At that time, there was no regular reporting of data concerning the committee’s disposition of cases in order to ensure statewide uniformity. The 1978 sunset staff recommended that the disciplinary functions of the local grievance committees be transferred to a central committee appointed by the Supreme Court, with necessary support staff being supplied by the administrative unit responsible for the regulatory function of enforcement.5 The 1979 Legislature did vest certain disciplinary powers in the general counsel of the State Bar, but the local committees retained much of their autonomy. At the same time, the Legislature established a grievance oversight committee with broad authority to monitor the activities of the local committees.6 1990-1991 SUNSET REVIEW The sunset review in 1990-1991, which resulted in significant revisions to the State Bar’s structure, separated the bar’s disciplinary functions from its professional association functions and established the Commission for Lawyer Discipline to oversee the disciplinary system, instead of a grievance oversight committee. It also required the State Bar to develop minimum standards and procedures for the grievance system and increase client awareness of the grievance process. Finally, it required the State Bar to develop a voluntary mediation and dispute resolution procedure to address attorney-client problems outside the scope of the grievance process.7 As a result of the 1991 legislative session, all attorneys licensed in Texas were subject to the new rules of disciplinary procedure and ethics. As a result, the 12-person Commission for Lawyer Discipline was established in statute8 and the CAAP program was implemented in 1999, patterned after a similar program in Mississippi.9 2002-2003 SUNSET REVIEW The next sunset review came 12 years later. In the meantime, the disciplinary system had expanded to meet the needs of a rapidly growing lawyer population. The Office of the Chief Disciplinary Counsel had increased the number of investigators, paralegals, and lawyers who worked for the bar. The CDC operated full-fledged law offices in Austin, San Antonio, Houston, and Dallas-Fort Worth. Additional field offices were maintained in several smaller cities. Technology for communication between offices had become an expensive challenge. The Commission for Lawyer Discipline was involved with the CDC, meeting monthly to review cases, personnel, and budget matters. However, the March 2002 sunset staff report found the bar’s disciplinary system to be “unnecessarily complex and time consuming” and identified “opportunities for simplifying it while also making it more responsive to both aggrieved clients and lawyers.”10 After the bar worked closely with the 78th Legislature, House Bill 599 was signed by Gov. Rick Perry on June 18, 2003, and mandated that the Supreme Court adopt new procedural rules for administrating Texas lawyer discipline by early 2004.11 The new Texas Rules of Disciplinary Procedure were drafted during the fall of 2003, with input from lawyers in the CDC, members of the Commission for Lawyer Discipline, and members of the State Bar Board of Directors Disciplinary and Client-Attorney Assistance Program Subcommittee. Two of these committees included nonlawyer members. The rules were submitted to the Texas Supreme Court, which promulgated these rules as effective Jan. 1, 2004, and made no changes to the submission. 12 These are the procedural rules currently in use. 2004 RULES OF PROCEDURE A fairly detailed description of the current procedure for processing grievances is found on page 1063 of this issue. Generally speaking, the rules provide that once a grievance is filed against a lawyer, the CDC either classifies the grievance as a complaint (one that alleges professional misconduct) or dismisses the grievance as an inquiry (if it does not). If the grievance is classified as a complaint, the respondent has 30 days to deliver a response. After that, the CDC investigates the complaint by reviewing the response, gathering documents, and interviewing witnesses. If the CDC believes that professional misconduct has occurred and that a sanction is required, it will find just cause to proceed and the grievance will be handled at the election of the respondent, either before an evidentiary panel of a local grievance committee, or in district court with or without a jury. If the CDC does not find just cause, it cannot just dismiss the grievance itself. It must seek the approval of a summary disposition panel, which is a panel of the local grievance committee. Trial of a grievance—whether before a local committee, district court judge, or jury—involves two stages. First, the trier of fact must find whether there has been a violation of a disciplinary rule. Second, the local grievance committee or trial judge determines the appropriate sanction to be imposed. Settlement or attempted settlement by mediation is available to the parties at any time. Just as in civil litigation, mediation conferences are often ordered by the district judge. Local grievance committee judgments may be appealed to the Board of Disciplinary Appeals and then to the Supreme Court of Texas. Judgment of district courts may be appealed to the Court of Appeals and ultimately to the Supreme Court of Texas. The rules provide that the following sanctions are available to either a local grievance committee or to the district court:13 • Disbarment; • Resignation in lieu of discipline; • Indefinite disability suspension; • Suspension for a term certain; • Probation of suspension, which probation may be concurrent with the period of suspension, upon such reasonable terms as are appropriate under the circumstances; • Interim suspension; • Public reprimand; and • Private reprimand (not available in district court). The local grievance committee or trial court may also order restitution, either to a client or to the Client Security Fund, and reasonable attorneys’ fees and expenses incurred by the CDC. The new rules addressed the efficiency, responsiveness, and uniformity of the disciplinary system. The most significant change was the transfer of major responsibilities from the hands of local grievance committee volunteers into the hands of the CDC lawyers and investigators. The finding of just cause was now to be performed by the CDC lawyers. Similarly, investigations were to be performed by the CDC instead of investigatory hearings held by local grievance committees. Importantly, the new rules created a summary disposition procedure whereby grievances are more closely scrutinized at the outset and subject to dismissal early in the process for those cases where no just cause was found. The idea—embraced by the bar, the court, and the Legislature—was to streamline the process both in terms of time and expense, and to provide more uniformity throughout the state in finding cause to proceed with the grievance. Another significant improvement was the establishment of certain deadlines for the CDC to classify grievances, notify respondents of allegations, and set cases for trial. Finally, the rules preserved a lawyer’s right to elect a trial by a local grievance committee or a trial in district court (with a jury as an option). As these rules were implemented, the Commission for Lawyer Discipline worked to achieve the goals of sunset by several measures. The CDC’s anticipated budget was reduced at the request of the Commission for Lawyer Discipline by more than $1 million. In 2004, the CDC’s physical facilities were consolidated into four regional offices in Austin, Dallas, San Antonio, and Houston. This eliminated the field offices in Fort Worth, Arlington, Tyler, Midland, and El Paso, resulting in substantial savings in lease and travel expenses while not curtailing any of the services provided by the bar. Paperless technology was also enhanced and training of the CDC lawyers was emphasized. Critics of the 2004 rules maintain that there is much less involvement by local grievance committees, that the parties’ appeal rights within the procedure are more limited, and that a complainant may have his or her grievance dismissed without having been able to personally appear before a panel or a committee. One of the ironies of the sunset process of 2002-2003 is that the bar recommended preserving trial by jury for respondents, yet lawyers rarely elect that option, and very few jury trials in disciplinary actions have been held. RECENT IMPROVEMENTS Mindful that the 2002-2003 sunset process concluded that the State Bar disciplinary system should remain fiscally efficient, responsive to lawyers, and protective of the public, the State Bar has continued to implement new initiatives, including the following: • TLAP works closely with the disciplinary system to draft judgments and conditions of probations that address the needs of lawyers with mental health issues. In doing so, confidences are preserved.14 • The attorney Grievance Referral Program has been implemented. This program diverts minor cases out of the grievance system. Lawyers eligible for the GRP must fall within strict criteria to ensure that serious misconduct—involving dishonesty, fraud, misrepresentation, or misconduct resulting in substantial harm to a client—is not eligible for the program.15 • The first step of the grievance processing system was centralized in the Austin office, which results in increased statewide consistency in the initial classification decision. • The bar worked with the Supreme Court to enact a 2008 rule requiring all attorneys to keep their contact information current with the State Bar of Texas, to prevent grievance cases from languishing on the docket due to lack of service, and to help expedite the process.16 • The bar implemented an easier-to-navigate website in 2010, which gives the public more information about the disciplinary process and information about an attorney’s disciplinary history. • The bar made it a priority to reach out to prosecutors’ offices around the state to better coordinate and communicate lawyers’ convictions. State Bar programs in the areas of CLE, law office management, mandatory ethics CLE, and mandatory first-year CLE have contributed to the total number of sanctions on an annual basis remaining relatively constant, even as the lawyer population has increased. STATISTICALLY SPEAKING At the beginning of the 2002-2003 sunset review, the active lawyer population of Texas was approximately 75,000, and the State Bar budget for lawyer discipline was approximately $6.5 million. A few short years later in 2009, the active lawyer population was approximately 86,000, and the State Bar disciplinary budget was $7.4 million. However, the total number of final sanctions against lawyers during that time remained constant. Technology and personnel management were responsible for the CDC performing at a high level, while at the same time, not drastically increasing the budget. A majority of the grievances filed do not allege a violation of a disciplinary rule. Rather, these grievances are generalized complaints by clients (often the opposing party in litigation or a person convicted of a crime) about the outcome of a particular matter. Even so, these grievances must be processed by the CDC with careful attention. The result is that more than 50 percent of the grievances filed are dismissed as inquiries.17 Because this determination can be appealed to BODA, one can track the relative accuracy of the CDC’s determination in this regard. Historically, the reversal rate at BODA is only 8 percent. Of the grievances classified as complaints, more than two-thirds are dismissed, as the local grievance committee often agrees with the CDC as to no finding of just cause.18 It is important to note that the determination of just cause is a two-part test: First, there must be a reasonable belief that professional misconduct has occurred; and second, the misconduct must be of the type that requires that a sanction be imposed.19 For many years now, the average annual number of final disciplines imposed is 300 to 400.20 These statistics reveal the simple fact that a great deal of the CDC’s time and expense is spent investigating and resolving complaints against lawyers that do not relate to a specific ethics rule or identifiable harm to a member of the public. The resources expended in this regard should assure the public that all complaints are scrutinized and no complaint is taken lightly. TOP 10 THINGS YOU SHOULD KNOW ABOUT THE CURRENT DISCIPLINARY SYSTEM 1. There are two sets of rules: the Texas Disciplinary Rules of Professional Conduct, also known as the rules of conduct or ethics rules, were promulgated in 1991 with slight revisions in 2005 (addressing referral fees and advertising).21 Efforts to make a wholesale revision of the rules failed in 2011.22 The other set, the Texas Rules of Disciplinary Procedure, also known as the procedural rules, were promulgated in 200423 with slight revisions in 2009 (addressing confidentiality of proceedings).24 2. A grievance can be filed by anyone, not just the client, and can be filed online at texasbar.com. 3. Failure to respond to the grievance is itself a violation of the ethics rules, and a sanction can be imposed for such failure.25 4. The decision about choosing trial by a local committee or district court is important. A private reprimand is not available in district court. 5. A lawyer cannot just give up his license in order to avoid discipline. Resignation in lieu of discipline is treated as disbarment. A disbarred lawyer may, under certain circumstances, seek to be reinstated after five years.26 6. The Attorney Ethics Helpline, a free service to members of the bar, provides non-binding ethics advice. The telephone number is (800) 532-3947. 7. CAAP and the GRP are utilized extensively to address lawyer conduct situations when formal grievances or sanctions are not necessary. 8. The public protection budget of the State Bar of Texas includes much more than lawyer discipline. This budget, approved by the State Bar of Texas Board of Directors and the Supreme Court of Texas, is about $11 million. 9. Some professional liability insurance policies contain coverage for grievance defense. 10. Just as the State Bar Board of Directors relies heavily on input from its public members, so does the Commission for Lawyer Discipline and the local grievance committees. CONCLUSION The premise of a mandatory or integrated bar is that the State Bar can address lawyer discipline more efficiently and directly than some other agency created for that purpose. As it has done in many other areas, bar leadership should begin preparing now for the future of lawyer discipline. This will need to include the increased use of technology to enhance the disciplinary system, updating the ethics rules, and coordinating with the ethics rules of other states as the practice of law becomes more global. Importantly, the bar will need input from lawyers of all practices and from citizens of all walks of life. NOTES 1. Tex. Rules Disciplinary P. preamble. 2. Tex. Gov’t Code § 81.012(3). 3. Id. § 81.003. 4. S.B. 652, 82nd Leg., R.S. (2011). 5. Sunset Comm’n Staff Report on State Bar of Texas, 41 Tex B.J. 819, 868 (1978). 6. S.J. of Tex., 66th Leg., R.S. 1088-89 (1979). 7. Tex. Gov’t Code § 81.072(e). 8. Id. §81.076. 9. Interview with Constance J. Miller, former Program Director, Client-Attorney Assistance Program (Sept. 5, 2013). 10. Sunset Advisory Commission Staff Report, Page 1, Mar. 2002. 11. H.B. 599, 78th Leg., Ch. 227, Sec. 6, eff. Sept. 1, 2003. 12. Report of the CFLD—2003–2005, page 4. 13. Tex. Rules Disciplinary P. R. 1.06(Y). 14. See Tex. Health & Safety Code Ann. § 467 (addressing confidentiality provided by the Texas Lawyers’ Assistance Program). 15. Comm’n for Lawyer Discipline, Annual Report, State Bar of Texas (June 1, 2006–May 31, 2007). 16. Tex. State Bar R. art. I § 7. 17. See generally Comm’n for Lawyer Discipline, Annual Report, State Bar of Texas (June 1, 2011–May 31, 2012); Comm’n for Lawyer Discipline, Annual Report, State Bar of Texas (June 1, 2010–May 31, 2011); Comm’n for Lawyer Discipline, Annual Report, State Bar of Texas (June 1, 2009–May 31, 2010); Comm’n for Lawyer Discipline, Annual Report, State Bar of Texas (June 1, 2008–May 31, 2009). 18. Id. 19. Comm’n for Lawyer Discipline, Annual Report, State Bar of Texas, 8 (June 1, 2011–May 31, 2012). 20. See generally Comm’n for Lawyer Discipline, Annual Report, State Bar of Texas (June 1, 2011–May 31, 2012); Comm’n for Lawyer Discipline, Annual Report, State Bar of Texas (June 1, 2010–May 31, 2011); Comm’n for Lawyer Discipline, Annual Report, State Bar of Texas (June 1, 2009–May 31, 2010); Comm’n for Lawyer Discipline, Annual Report, State Bar of Texas (June 1, 2008–May 31, 2009). 21. Tex. Rules Disciplinary P. 22. Press Release, State Bar of Texas, State Bar of Texas Announces Results of Referendum on Proposed Amendments to the Texas Disciplinary Rules of Professional Conduct, (Feb. 17, 2011) (on file with www.texasbar.com). 23. Tex. Rules Disciplinary P. 24. See Texas Supreme Court Order entered in Misc. Docket No. 09-9191, Dec. 7, 2009. 25. Tex. Rules Disciplinary P. R. 8.04(a)(8). 26. Id. R. 11.01. MARK D. WHITE is a trial lawyer and ethics consultant with Sprouse Shrader Smith in Amarillo.
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