Texas Attorney Discipline System Update
Changes for earlier resolution, increased consistency, improved access, and greater accountability.
By Linda A. Acevedo
Effective September 1, 2017, the Texas Legislature revised the State Bar Act as a result of the Sunset Review1 process following months of intensive assessment, Sunset staff recommendations, collaboration with bar leadership and staff, and public hearings. The changes are aimed at improving the attorney discipline system and to enhance public protection through increased access and oversight in order to foster confidence in the system and to provide a more effective and efficient regulatory structure. The primary changes, which the Texas Supreme Court is expected to adopt2 through amendments to the Texas Rules of Disciplinary Procedure effective June 1, 2018, include:
Referral of grievances to the Client-Attorney Assistance Program, the State Bar’s voluntary mediation and dispute resolution division, for earlier resolution of disputes;
Increased use of the Grievance Referral Program, a diversionary program within the discipline system designed to identify and assist lawyers who have impairment or performance issues;
Disciplinary sanction guidelines for grievance committees and district courts; and
Investigatory hearings to resolve grievances short of formal proceedings.
Further directives geared toward improved access, transparency, and accountability include:
An ombudsman who reports directly to the Texas Supreme Court;
Detailed reporting on sanctions and barratry investigations; and
Mandatory reporting of certain criminal convictions and disciplinary judgments imposed in other jurisdictions.
Earlier Resolution and Increased
Referral of Grievances to the
Client-Attorney Assistance Program
The Client-Attorney Assistance Program, or CAAP, is a voluntary, confidential dispute resolution service of the State Bar of Texas. Its objective is to facilitate communication and productive dialogue to help Texas lawyers and their clients resolve minor concerns, disputes, or misunderstandings impacting the attorney-client relationship. Current grievance forms encourage individuals who are contemplating filing a grievance to contact CAAP first if their concerns regarding their lawyer have to do with progress of their case, communication, or the need to retrieve documents from their former lawyer. CAAP has been successful in re-establishing communication between clients and their lawyers, including the return of documents, thereby eliminating the need for the filing of a grievance.
When a grievance is filed with the Chief Disciplinary Counsel, or CDC, it undergoes an initial screening referred to as classification. A grievance is classified as an inquiry if it does not allege professional misconduct and as a complaint if professional misconduct is alleged. The new rules add a further classification of discretionary referral, which allows CDC, during this initial screening process, to refer minor grievances to CAAP for possible early resolution and for the sharing of confidential information between CAAP and CDC for these referrals.3
the Grievance Referral Program
The CDC’s Grievance Referral Program, or GRP, is a diversionary program within the discipline system designed to help identify and assist respondent lawyers who have impairment or performance issues and who enter the disciplinary system as a result of minor misconduct. GRP allows the lawyer to complete a remedial or rehabilitative program individually tailored to the lawyer’s needs in exchange for a dismissal of the underlying complaint. The criteria, eligibility, procedure, and reporting for the program have existed in the State Bar Board of Directors Policy Manual since 2009, and the program has been an available option for matters that have reached the formal litigation stage.4 These parameters are now codified in the disciplinary procedural rules and allow GRP to be utilized before litigation ensues.5
New Disciplinary Sanction Guidelines
The former disciplinary procedural rules provided general factors to be considered by evidentiary panels of the grievance committee and district courts when considering the imposition of an appropriate disciplinary sanction and included some restrictions on the imposition of certain sanctions.6 As a means of promoting more consistency across the state and providing more transparency, the Legislature mandated the adoption of more specific sanction guidelines.7 These new sanction guidelines follow the basic structure of the American Bar Association Standards for Imposing Sanctions, which are utilized to varying degrees by a majority of disciplinary jurisdictions: 1) ethical duty violated; 2) respondent’s level of culpability; 3) potential or actual injury caused by respondent’s misconduct; and 4) existence of aggravating or mitigating factors.8 In addition, a cross-reference table is included to provide further guidance regarding specific rule violations.9
The new sanction guidelines are designed for use by evidentiary panels of the grievance committee and district courts once a finding of professional misconduct has been made, but nothing in the guidelines limits the authority of a grievance committee or district court.10 The guidelines replace the more general factors and restrictions and include limitations on the use of private reprimands currently provided in statute.11
Investigation of Complaints
When a grievance is classified as a complaint, CDC conducts an investigation to determine just cause and if just cause is found, the matter proceeds into litigation. Under the new structure, CDC can issue subpoenas during the investigation phase, set a matter for an investigatory hearing, and enter into a negotiated sanction with the respondent lawyer before the matter reaches litigation.12 Subpoenas are approved by the chair of the grievance committee or chair of the investigatory panel of the grievance committee, the respondent lawyer can contest the materiality of the production or testimony sought, and any negotiated sanction will result in a judgment entered by the investigatory panel of the grievance committee.13 Notably, any investigatory hearings held are non-adversarial in nature and cannot result in any sanction being entered against a respondent lawyer without his or her consent.
While CDC has always had subpoena authority during the formal litigation stage of the process, the Sunset Advisory Commission concluded that the lack of subpoena power at the investigation stage was a serious impediment to thorough investigations that could lead to the dismissal of valid complaints, or the pursuit of complaints that ultimately proved baseless once in litigation.14 The report also noted CDC previously had the ability to issue subpoenas during the investigative phase, but extensive changes to the rules made after passage of the 2003 Sunset bill inadvertently eliminated this power.15 The ability to obtain records during the investigation stage and hold investigatory hearings will result in the earlier resolution of disciplinary matters, including results in favor of the respondent lawyer.
Finally, as an additional measure of oversight into the use of this subpoena authority during investigation, CDC will report to the Sunset bill sponsors on the use of this authority. The reports will include the number of times the authority has been used, the types of records sought, and the status of corresponding investigations.
Improved Access and More Accountability
Ombudsman for the Attorney Discipline
Although the Office of Chief Disciplinary Counsel is currently subject to oversight and accountability,16 the Legislature established the position of ombudsman for the attorney discipline system as an additional measure.17 This is an attorney position that reports directly to the Texas Supreme Court and is independent of the State Bar Board of Directors, the Commission for Lawyer Discipline, and CDC.
The ombudsman’s primary responsibilities are twofold. The first is to answer questions from the public on the system’s operations, accessing the system, the filing of grievances, and the availability of other State Bar programs.18 The second is to receive complaints about the system, review grievances to determine whether CDC followed the proper grievance procedures, and investigate complaints on violations of the system’s procedural rules.19 Importantly, the ombudsman may not draft a complaint or act as an advocate for a member of the public.20 Nor may the ombudsman intervene in any disciplinary matter or reverse or modify a finding or judgment in any disciplinary proceeding.21 The ombudsman is also tasked with making recommendations to the Texas Supreme Court and State Bar Board of Directors for improvements to the attorney discipline system, including ways to improve access to the system and changes to the grievance form.22
Given the nature of the position, the ombudsman will provide an additional means to receive information and support regarding the attorney discipline system and an independent avenue to verify compliance with the grievance process. As such, the ombudsman can be relied upon to foster further confidence in the attorney discipline system.
The Commission for Lawyer Discipline submits an annual report concerning the state of the attorney discipline system to the Texas Supreme Court, the State Bar Board of Directors, and the Legislature and posts the report on the State Bar’s website.23 The report contains myriad statistics and data related to the system, including number of grievances filed, grievances dismissed and upgraded, just cause investigations, elections and defaults into litigation, total complaints resolved, and total disciplinary sanctions entered. The report also includes information regarding sanctions by areas of law and areas of misconduct, attorneys’ fees collected, CDC’s ethics helpline, Client Security Fund grants, judgment compliance efforts, and a diversity survey of grievance committee membership compared with State Bar membership.
Under the new legislation, the commission and CDC will include information associating rule violations with the sanction imposed, whether the sanction aligns with the new sanction guidelines, specifying the grievance committee panel or district court which entered the sanction, figures regarding race and gender, and other sufficient information to evaluate and track disciplinary trends over time.24 In addition, data relating to the number and final disposition of grievances filed, dismissed, investigated, and disciplinary decisions issued relating to barratry-related grievances will be reported, as well as CDC’s cooperation with local, state, and federal agencies in barratry investigations and prosecutions of civil or criminal offenses related to barratry.25
Self-Reporting Rule and Additional Monitoring
In the attorney discipline system, lawyers are subject to discipline when they have been convicted of certain types of crimes and when they have been disciplined in another disciplinary jurisdiction. These types of actions are referred to as compulsory and reciprocal discipline, respectively.26
As a result of the new legislation, Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct, “Reporting Professional Misconduct,” was amended and requires lawyers to self-report convictions for certain criminal offenses and discipline imposed against them by another disciplinary authority. More specifically, the amended rule requires a lawyer to notify CDC when the lawyer has been convicted or placed on probation with or without an adjudication of guilt by any court for barratry, any felony, or for a misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property, including a conviction or sentence of probation for attempt, conspiracy, or solicitation. It also requires a lawyer to notify CDC when the lawyer has been disciplined by the attorney-regulatory agency of another jurisdiction. The notice must be made within 30 days of entry of an order or judgment and must include a copy of the order or judgment.27
This self-reporting rule is aimed at ensuring effective regulation of both potential compulsory and reciprocal disciplinary proceedings. In this same vein, CDC is required to regularly search the National Lawyer Regulatory Data Bank maintained by the ABA to identify lawyers who have been disciplined in another state.28 In addition, CDC is allowed to access fingerprint-based criminal history information, which the Texas Board of Law Examiners maintains in connection with applicants for Texas licensure, for individuals who apply for admission after September 1, 2017, and are subsequently admitted.29 Finally, all of a lawyer’s public disciplinary history is available on the State Bar’s website (eliminating any 10-year limit) as well as online access to public disciplinary judgments.30
If you have any questions concerning these changes, please contact the Office of Chief Disciplinary Counsel. TBJ
has served as the chief disciplinary counsel for the State Bar of Texas since January 2009. Previously Acevedo served in the Office of Chief Disciplinary Counsel as first assistant, statewide appellate counsel, trial lawyer, and corporate counsel. She is certified in civil appellate law by the Texas Board of Legal Specialization and earned her B.A. and J.D. from the University of Texas at Austin.