Other Disciplinary Proceedings
If an attorney has been convicted of or pleaded nolo contendere to, or has been put on probation, with or without an adjudication of guilt, for a serious or intentional crime (as those terms are defined in the TRDP), the CDC will seek compulsory discipline.
Crimes that subject a lawyer to compulsory discipline include barratry; any felony involving moral turpitude; any misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or property; any crime involving misapplication of money or other property held as a fiduciary; and any attempted conspiracy or solicitation of another to commit any of these crimes.
These proceedings are filed with the Board of Disciplinary Appeals. The criminal judgment or order of deferred adjudication is conclusive evidence of the attorney’s guilt of the commission of the crime. If the criminal conviction of a serious or intentional crime is on appeal, the lawyer’s license shall be suspended during the pendency of the appeal. Where the sentence includes any period of incarceration other than as a condition of probation, the lawyer shall be disbarred. Where the criminal sentence is fully probated, BODA has the discretion to either suspend for the period of criminal probation or disbar the attorney. Appeals from compulsory discipline decisions are to the Supreme Court of Texas.
Any interested person, including the CDC or a client, may petition the district court in the county of the attorney’s residence to assume jurisdiction of the attorney’s law practice under certain circumstances. A district court can be petitioned to appoint a custodian for an attorney’s files in the event that the attorney has died; disappeared; resigned; become inactive; been disbarred or suspended; or become physically, emotionally, or mentally disabled and cannot, as a result, provide legal services necessary to protect the interests of clients.
Upon the filing of a verified petition, the court issues a show cause order to the attorney or his or her personal representative or, if none, the person having custody of the lawyer’s files, directing him or her to show cause why the court should not assume jurisdiction of the attorney’s law practice. Upon establishment of grounds for the assumption, the court enters an order appointing one or more lawyers as custodians and ordering what must be done with respect to the files.
If the Chief Disciplinary Counsel determines during the course of investigating a Complaint that one or more grounds exist to support seeking an interim suspension of the respondent’s law license, the CDC can seek authority from the Commission to pursue an interim suspension.
If such authority is given, a petition is filed in a district court of proper venue, service is obtained on the respondent, and the court is to set a hearing within 10 days. The court may suspend the attorney pending final disposition of the disciplinary action if the court finds by a preponderance of the evidence that the respondent poses a substantial threat of irreparable harm to clients or prospective clients. Any of the following elements conclusively establishes such a substantial threat of irreparable harm:
Conduct that includes all elements of a serious crime (as that term is defined in the disciplinary rules); or
Three or more acts of professional misconduct as defined in the rules, whether or not there is harm; or
Any other conduct that, if continued, will probably cause harm to clients or prospective clients.
If an attorney is disciplined in another jurisdiction where the attorney is licensed to practice law, the CDC may seek the identical or “reciprocal” discipline. These proceedings are filed with the Board of Disciplinary Appeals. The CDC files a petition for reciprocal discipline, which includes a certified copy of the order of discipline from the other jurisdiction and requests that the lawyer be disciplined in Texas. BODA notifies the attorney, who has 30 days to show why imposition of the identical discipline in Texas would be unwarranted. Defenses available to the attorney include the following:
The procedure in the other jurisdiction was so lacking in notice or opportunity to be heard that the attorney was deprived of due process.
There was such an infirmity of proof in the other jurisdiction that the conclusion that was reached should not be accepted as final.
Imposition of identical discipline would result in grave injustice.
That the misconduct established in the other jurisdiction warrants a substantially different discipline in this state.
That the misconduct for which the attorney was disciplined in the other jurisdiction does not constitute professional misconduct in this state.
Absent establishment of a defense, BODA shall impose discipline identical, to the extent practicable, with that imposed by the other jurisdiction. Appeals from decisions in reciprocal discipline cases are to the Supreme Court of Texas.
A disability is any physical, mental, or emotional condition that results in an attorney’s inability to practice law or to carry out his or her professional responsibilities. No substantive rule violation is required to find that an attorney has a disability.
If the CDC during a Just Cause investigation, or an evidentiary panel during the course of an evidentiary proceeding, believes that an attorney is suffering from a disability, the matter is forwarded to BODA for appointment of a district disability committee. The district disability committee determines whether the respondent is, in fact, suffering from a disability and, if so, indicates such to BODA, which then enters an order suspending the attorney for an indefinite period.
The disability process tolls the four-year statute of limitations for disciplinary matters.
Violation of any term of the probated portion of a suspension may subject a respondent lawyer to a “revocation” of the probation resulting in an active suspension from the practice of law. When a judgment is entered by an evidentiary panel of the grievance committee, the revocation proceeding is filed before BODA. When a judgment is entered by a district court, the revocation proceeding is filed with the district court. If the CDC proves a violation of probation by a preponderance of the evidence, the probation is revoked and the respondent attorney is suspended from the practice of law without credit for any probationary period served. An order revoking a probated suspension cannot be superseded or stayed pending an appeal.