Punishment for Professional Misconduct
The term “sanction” refers to the level of discipline imposed against a respondent attorney. In determining the appropriate sanction to be imposed, an evidentiary panel or district court considers the following:
- Nature and degree of the professional misconduct
- Seriousness of and circumstances surrounding the professional misconduct
- Loss or damage to clients
- Damage to the profession
- Assurance that those who seek legal services in the future will be insulated from the type of professional misconduct
- Profit to the attorney
- Avoidance of repetition
- Deterrent effect
- Maintenance of respect for the legal profession
- Conduct of the respondent during the course of the disciplinary proceeding
- Respondent’s disciplinary history
The different types of sanctions, or levels of discipline, include the following:
A private reprimand is available only if the case is tried before an evidentiary panel of the grievance committee. This sanction is not available in a case heard before a district court. A private reprimand is the least level of discipline that can be given. It is not public and this information is not published in connection with the specific lawyer and is not released upon inquiries from the public. However, this sanction remains a part of the lawyer’s disciplinary history and may be considered in any subsequent disciplinary proceeding. The Texas Legislature and Commission for Lawyer Discipline have established limitations on the use of private reprimands. A private reprimand is not available if:
- A private reprimand has been imposed upon the respondent lawyer within the preceding five-year period for a violation of the same disciplinary rule; or
- The respondent lawyer has previously received two or more private reprimands, whether or not for violations of the same disciplinary rule, within the preceding 10 years; or
- The misconduct includes theft, misapplication of fiduciary property, or the failure to return, after demand, a clearly unearned fee; or
- The misconduct has resulted in a substantial injury to the client,
the public, the legal system, or the profession; or
- There is a likelihood of future misconduct by the respondent
- The misconduct was an intentional violation of the ethics rules.
This type of discipline is public and is published together with the name of the respondent lawyer. A public reprimand is not available if:
- A public reprimand has been imposed upon the respondent lawyer within the preceding five-year period for a violation of the same disciplinary rule; or
- The respondent lawyer has previously received two or more public reprimands, whether or not for violations of the same disciplinary rule, within the preceding five-year period.
Suspension for a Term Certain
Commonly referred to as an “active suspension,” this public discipline means that the respondent lawyer is prohibited from practicing law for the length of the suspension. If the lawyer practices law during an active term of suspension, the conduct is a separate basis for further discipline and/or for contempt of the judgment. Upon the conclusion of an active suspension, the lawyer is eligible to practice law, provided that all other requirements for eligibility such as payment of bar dues and compliance with continuing legal education are current.
Fully Probated Suspension
This type of discipline is public and is for a term certain; however, the suspension is “probated,” which means that the respondent lawyer may practice law during the period of suspension, but the lawyer must comply with specific “terms of probation” throughout the probated suspension period.
Terms of probation typically require that the respondent lawyer refrain from engaging in further misconduct; not violate any state or federal criminal statutes; keep the State Bar notified of current mailing, residential, and business addresses; comply with continuing legal education requirements; comply with the rules for maintaining trust accounts; and respond to any requests for information by the Chief Disciplinary Counsel in connection with an investigation of allegations of misconduct.
Probation terms may also include, depending upon the facts of a particular case, that the respondent lawyer take additional continuing legal education, submit to a psychological evaluation, attend substance abuse counseling, practice law under the supervision of a designated monitor, or pay restitution and attorney’s fees by a certain date. A fully probated suspension is not available if:
- A public reprimand or fully probated suspension has been imposed upon the respondent lawyer within the preceding five-year period for a violation of the same disciplinary rule; or
- The respondent lawyer has previously received two or more fully probated suspensions whether or not for violations of the same disciplinary rule within the preceding five-year period; or
- The respondent lawyer has previously received two or more sanctions of public reprimand or greater imposed for conflict of interest, theft, misapplication of fiduciary property, or the failure to return, after demand, a clearly unearned fee.
In the event a fully probated suspension is not available, any sanction imposed must be for no less than 30 days of active suspension.
Partially Probated Suspension
This type of discipline is a combination of an active suspension followed by a period of probated suspension and is public.
This is the most severe discipline resulting in a complete loss of a respondent lawyer’s license to practice law. Once disbarred, the lawyer’s name is removed from the membership rolls of the Supreme Court and the lawyer is required to remit his or her law license and bar card.
After five years, a disbarred lawyer may petition a district court to be reinstated to the practice of law. The disbarred lawyer must prove that reinstatement is in the best interest of the public and the profession, as well as the ends of justice. If such an application is granted, the disbarred lawyer is not automatically granted a law license. The disbarred lawyer must still pass the Bar Exam administered by the Texas Board of Law Examiners.
During the 2011-12 Bar year, 8 disbarred lawyers filed petitions for reinstatement. Of those, 1 was dismissed by the respondent attorney, 1 was denied, and 6 remain pending.
Finally, the term “sanction” may include as an ancillary requirement: 1) restitution (which may include repayment to the Client Security Fund of the State Bar of any payments made by reason of the respondent lawyer’s misconduct); and 2) payment of reasonable attorney’s fees and all direct expenses associated with the disciplinary proceedings.