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TBJ DECEMBER 2022

Protecting the Public

The State Bar of Texas chief disciplinary counsel discusses the purpose of the Texas attorney discipline system.

Interview by Patricia Busa McConnico

 
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Seana Willing


Seana Willing, who has been chief disciplinary counsel for the State Bar of Texas for almost four years, was originally from the greater Boston area, where she spent the early years of her practice focused on ethics, professional responsibility, and the regulation of the attorney and judicial professions. Licensed in Texas for nearly 30 years, her legal career has been influenced by her leadership roles at the State Commission on Judicial Conduct and the Texas Ethics Commission along with her involvement in national judicial and attorney discipline organizations and service as a pro bono legal consultant in Poland, the Republic of Georgia, and Kyrgyzstan. Willing spoke with the Texas Bar Journal about the importance of the Office of Chief Disciplinary Counsel, the types of possible disciplines, what happens if an attorney doesn’t respond to a grievance, and ways to avoid the grievance process.

What is the purpose of the Office of Chief Disciplinary Counsel and why is it important?
The CDC is responsible for operating the Texas attorney discipline system through investigations and prosecutions of alleged professional misconduct. The core purpose of regulating any profession is always public protection. In Texas, where attorneys enjoy the dual privileges of self-regulation and a license that allows them to make a living delivering legal services to the public, the mission of the CDC must be to protect the public from the unethical practice of law while providing a fair and efficient process for lawyers to defend themselves against allegations of professional misconduct.

How is the office organized and staffed?
The CDC employs about 95 staff members, including 36 attorneys, across the state. There are four regional offices located in Austin, San Antonio, Houston, and Dallas. Each office is managed by a regional counsel and employs trial attorneys, investigators, an office manager, as well as professional support staff. The Austin office also employs four classification attorneys, two ethics helpline attorneys, the CDC’s public affairs counsel, the CDRR rules attorney, as well as an IT director and support staff.

Walk us through the process. What happens when a grievance is filed?
Explaining the entire process from start to finish is going to take some time, so I’ll start by directing readers to explanations of the process on the State Bar of Texas website, in this edition and last month’s edition of the Texas Bar Journal, and by searching TexasBarCLE for free webinars and recorded CLE presentations. It’s not a complicated process, but there are strict deadlines and specific procedures that the CDC must follow under the Texas Rules of Disciplinary Procedure. Basically, in a nutshell, written grievances are screened; complaints that allege a violation of the Texas Disciplinary Rules of Professional Conduct are investigated; at the conclusion of the investigation, cases that are not dismissed are either resolved with an agreed sanction or go into litigation; at the end of the entire process, each year, an average of 400 sanctions will be issued, resolving an average of 525 cases.

What are the different types of possible disciplines? Do they all involve fines?
As far as sanctions, those would include: private reprimand, public reprimand, suspension for a term certain (including compliance terms and conditions before reinstatement), interim suspension, indefinite disability suspension, disbarment, and resignation in lieu of discipline. Any of these judgments may also include mental health or drug and alcohol rehabilitation terms or a referral to the Texas Lawyers’ Assistance Program if the respondent is thought to have an impairment issue. Texas does not allow for fines to be imposed in attorney discipline cases. It does allow for the assessment of the CDC’s reasonable attorney’s fees and costs, as well as the recovery of restitution from the respondent if they misappropriated client funds.


What happens if an attorney doesn’t respond to the grievance?

First and foremost, failure to timely respond to a grievance is a violation of the Texas Disciplinary Rules of Professional Conduct on its own, which means that a respondent faces the prospect of discipline for that violation even if the allegations raised in the underlying complaint have no merit. That’s a frustrating, but entirely preventable, outcome. Although default disciplinary judgments, including disbarment, do result when respondents fail to answer or fail to participate in the process, this outcome is not common. This is mainly a result of the efforts by CDC staff to locate and contact respondents and get them to participate in the process.

Do you have any tips for lawyers on staying out of the grievance process or avoiding grievances altogether?
Absolutely (this list is not exhaustive by any means).

Tip 1: Communicate with your client

Tip 2: Don’t neglect the case

Failure to communicate and neglect, often found together, are consistently the top allegations of professional misconduct that result in discipline. Most clients become unhappy with the representation because the attorney never properly managed their expectations up front. A good percentage of the cases that the Client-Attorney Assistance Program tries to resolve, so that the attorney can avoid having to go through the grievance process, involve poor management of the client’s expectations of what constitutes a reasonable level of communication. Establishing those parameters and expectations at the initial consultation and in the engagement letter could address a lot of these issues. Another preventable complication occurs when the attorney has dropped the ball (i.e., missed a deadline, failed to calendar a hearing; or wasn’t as diligent as they should have been in handling the client’s matter), maybe by mistake, or through inexperience, or because of a personal hardship. If the attorney stops communicating with the client out of fear, shame, or embarrassment, their failure to have a hard conversation with the client will only compound the problem once a grievance is filed. The fallout from this situation could be mitigated, if not prevented, if attorneys were better at delivering bad news to clients. Doing so with honesty and humility might not just prevent a grievance, it could also preserve the attorney-client relationship.

Tip 3: Know when and how to decline or terminate representation

This is another problematic area for attorneys that frequently results in discipline. Most of the time, the attorney believed they were not representing the client or that the representation had ended, but the client claims they did not know this. If the attorney has no written evidence to support their position, or if there are texts, emails, or other indications that the client could reasonably rely on to support their position, a grievance panel would be hard pressed to give the benefit of the doubt to the respondent. If you have met with a prospective client and have declined to accept the case, communicate that clearly, in writing, with that person immediately. If you need to get out of a case, for whatever reason, communicate that clearly, in writing, with the client, give the client their file, an accounting of work done and fees earned, refund any unearned fee, and notify them of upcoming hearings and deadlines. Understand that in some instances, the attorney won’t be able to ethically withdraw from a case.

Tip 4: Trust accounts and those “non-refundable” retainers

There is still so much misinformation out there about the need for trust accounts, the use of non-refundable retainers, and the duty to return unearned fees. In most of the cases we see, attorneys are improperly handling what they call “non-refundable” retainers. There are a lot of credible resources available to attorneys on the State Bar website, including articles in the Texas Bar Journal, papers, webinars, recorded CLE programs, and online classes on TexasBarCLE to guide attorneys in how to open a trust account, how to draft a contingency fee agreement, common billing practice mistakes, and avoiding other trust account errors. There’s no need to learn about those mistakes through the grievance process.

Tip 5: Be scrupulously honest in your dealings with clients, the court, and others

All attorneys take an oath that they will honestly demean themselves in the practice of law and conduct themselves with integrity in dealing and communicating with the court and all parties. Many of the ethical rules we are required to follow include concepts of honesty and integrity. Despite this, lack of integrity consistently falls within the top five rule violations that result in discipline. I’m pretty sure attorneys don’t need me to provide this tip but if it serves as a reminder or an incentive to avoid a grievance, I’m willing to put it on this list.

Is there anything you would like to add?
I would encourage attorneys to start working on succession planning. Evaluate and update your contingency plans, including who you would designate to help wind down your practice in the event of an emergency. There’s a lot of helpful information, forms, checklists, and other guidance available on the State Bar website at texasbar.com/succession.

Also, attorneys as a profession have a significant number of members who suffer from a drinking problem, depression, anxiety, and suicidal thoughts. The stigma of mental illness remains a significant obstacle to getting attorneys the help they need to survive and thrive. I highly recommend that attorneys take advantage of the services offered by the Texas Lawyers’ Assistance Program, which provides confidential support 24/7. It is a fact that TLAP saves lives. Check out how they can help at tlaphelps.org.TBJ

 

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