A Primer on the Texa ...

A Primer on the Texas Bar Disciplinary System | Seana Willing

January 6, 2022 | by D. Todd Smith

The Texas Bar is a self-regulating entity—it handles attorney discipline through a unique procedural process. Although most attorneys steer clear of professional discipline, it’s important for practitioners to know about the disciplinary system and how it works. This week, Todd Smith and Jody Sanders sit down with an expert on this topic, Seana Willing, Chief Disciplinary Counsel for the State Bar of Texas. Seana provides a helpful primer on the attorney disciplinary system and the number and types of complaints the State Bar sees. Join us for a conversation important to all Texas lawyers.

Listen to the podcast here:

A Primer on the Texas Bar Disciplinary System | Seana Willing

Our guest is Seana Willing, the Chief Disciplinary Counsel for the State Bar of Texas. Seana, thank you so much for being with us.

Thank you for having me. I appreciate it.

As we usually do with our guests, tell us a little bit about yourself and how you got to be Chief Disciplinary Counsel for the State Bar.

Going way back, I’m a Boston native. I grew up in that area and went to Holy Cross College for an undergraduate economics degree. It never entered my mind that I would ever be a lawyer, which I’m sure a lot of people can relate to that. You can pick your friends, but you can’t pick your family. I had a family member that got into a lot of legal trouble. I found myself in criminal court as an observer and sometimes as a character witness.

It clicked. The light bulb went off and I thought, “This is awesome. This is what I want to do,” so I applied to law school. I didn’t want my parents to pay for it, so I had to find a school where I could do it all with loans, grants and things like that. I found myself in San Antonio, Texas, which was a fish out of water story for me coming from Boston. The only thing I knew about Texas was football, J.R. Ewing and The Alamo, of all things.

There’d been a few stories about spring breakers getting kidnapped in Matamoros, but that was the extent of what I knew about Texas. It was quite an interesting couple of years as a law student at St. Mary’s. Ironically, my first Thanksgiving in Texas was with a classmate who is now an appellate judge. She introduced me to Texas traditional Thanksgiving in Houston. I didn’t understand that you don’t stuff your turkeys in Texas. It’s on the side. I didn’t get to have any stuffing because they asked me if I wanted dressing and I didn’t know what that was, so I passed.

After law school, I decided to stay in Texas. Boston has about the same number of law schools in the city proper as the entire state of Texas. I figured that the odds of getting a job in Boston were slim to none, considering that several friends who went to law school were selling shoes in downtown Boston. I got a job working for a small firm, a wonderful attorney who’s still practicing named Tom Hallstead, who introduced me to all different areas of the law.

I got to do a lot of litigation. He threw me in to litigate cases right away all over the state. I also took some court appointments so that I could get some criminal law experience. Eventually, I got married and had my first child and wanted a less traditional private type of practice. I wanted the 8:00 to 5:00 and work for the state. The State Bar had a position in the San Antonio Office as an attorney prosecuting attorney misconduct.

I started my career at the State Bar back in 1998. I ended up coming to Austin when the regional counsel in that office became the executive director for the commission on judicial conduct. I came up and served as a general counsel. There was a little bit of a shakeup shortly after that. They asked me to be the interim director back in 2003, which turned into a full-time executive director of that agency. I was there until 2017. I was at the agency for eighteen years doing judicial misconduct investigations and trials.

That was a great job. I enjoyed that. It wasn’t as fun as working for the State Bar, though. When I was a prosecutor in San Antonio, I couldn’t believe the job and the cases we got to trial over the Southern part of the state. It was a fun position. I was recruited away from judicial conduct to be the Ethics Commission’s executive director, which is a misnomer. It’s campaign finance and election laws.

Another fish out of water story is that I had to try to forget everything I had learned about judicial misconduct and all the canons and laws that relate to that because I had to figure out election law. It was a great, interesting challenge. I had worked with him before, but that’s how I got a chance to work with [professional id=”11535″] and [professional id=”11533″]. We worked on some cases for the Ethics Commission and that was fun to get a chance to work with them.

My predecessor, Linda Acevedo, had been here before I was a baby attorney at the State Bar. She was the appellate attorney at the State Bar and then became the chief disciplinary counsel. We’d been friends for all that time. She announced that she was retiring. She and the attorney I’d worked with within the San Antonio office had asked if I was interested in applying for the chief disciplinary counsel’s position. It seemed like perfect timing and opportunity if I could get that job to come back and do the work that I enjoyed doing. How I got this job was a process. Were you a director in 2019?

No, I took office in 2020.

You missed the chance to vote for my position. The Commission for Lawyer Discipline is my boss. They’re my client. They get to select who’s the chief disciplinary counsel. There were several interviews. They made the offer and then it had to be ratified by the board of directors. That happened at their January 2019 meeting. I started in March of 2019. I had a whole year before COVID sent us home. It’s been an interesting few years in this position because half of it has been remote.

That’s quite a path you took talking about hitting some of the major agencies that are related to the State Bar but not the same thing. I chuckled a little bit when you said you had to forget everything you knew about judicial conduct regulation to go back to applying it to lawyers. It’s interesting to hear your path to that office. How many regional offices does your office have?

The main headquarters is here in Austin, but we have an office in San Antonio, Dallas and Houston. Back when I was at the Bar in 1998, ’99, we had offices in Fort Worth, Dallas, Tyler, Houston, Corpus, Harlingen and El Paso. We had quite a few field offices. After I left, they were consolidated as part of the sunset process that took place. In 2003, to save money, they reduced it to four offices.

Tell us a little about how the office is set up and staffed. How has the office been organized?

I have four regional counsels and then two of them, Tonya Harlan in Dallas is our deputy director for litigation and Royce Lemoine here in Austin is also the deputy director for administration. That was a job change that came in while Linda was chief disciplinary counsel. In Houston, Bill Moore is the regional counsel. In San Antonio, Paul Homburg is the regional counsel. Paul came on board right after I left. He’s been there for quite a while.

Each office has staff attorneys. We have investigative attorneys that take more of an administrative role. They’ll be the ones that will present cases in a summary disposition hearing, which is mostly a telephonic or Zoom meeting with panel members. We recommend it should be dismissed because there’s no evidence of misconduct and those get resolved fairly quickly and summarily.

They may present some cases to investigatory hearings and the board of disciplinary appeals. We also have trial attorneys. Altogether, we have 36 attorneys at the Chief Disciplinary Counsel’s Office. We have three attorneys that are classification attorneys. All they do is the intake of grievances to determine whether or not there’s a violation of the disciplinary rules of professional conduct on the face of the filing.

They’re busy all the time. We get anywhere from 7,500 to 8,000 grievances a year and those are open. We had an appellate counsel. Linda was an appellate counsel for years and years. We had somebody in between her and Matt Greer. Greer was our appellate counsel right before the pandemic. When there were some changes in retirements in the Board of Disciplinary Appeals, he moved into the deputy position with the Board of Disciplinary Appeals.

What we did, which is somewhat unique, is we went and hired an outside appellate attorney to be our appellate counsel. We have a contract with Doug Lang, who was on the Fifth Court of Appeals for 12 or 16 years. I worked with him at the Judicial Conduct Commission. He was on our board and became chair while I was still there. I had a great relationship with him. He lost his election, went into private practice and reached out to see if we’d be interested in having him. He liked the work that we did. He has a very strong principled ethic concerning attorney conduct and civility.

He’s written a lot about civility and professional conduct. He wanted to mentor some of the younger, newer attorneys at his firm and give them a chance to see this side of the disciplinary process. It’s been an interesting experience, especially because he used to grade my papers before they got filed. It’s interesting. I’ve enjoyed the chance to keep working with him. Our trial attorneys love it. Part of being a good effective trial attorney is to be aware of what might happen on appeal, to be able to plan your case and know what area you need to preserve. It’s helped them be more effective litigants in the trial stage of our cases. It’s been great.

two people sitting at a table across from each other holding their hands shut
Texas Bar Disciplinary System: Texas disciplinary rules of procedure are unique because they cover how the cases come in, how they’re screened, and then processed.

I had no idea that you had that many people.

We have 97 staff. We have investigators in each office, support staff, legal assistance and secretaries.

When you think about the number of grievances you get a year, it makes sense that you would, though.

This is the cost of self-regulation. The State Bar Act lays out the framework for how all this is supposed to work. You mentioned the Sunset Review. We have this privilege of regulating ourselves subject to the legislature’s approval and periodic review. It’s something that we as lawyers and the State Bar, in particular, have to take very seriously.

If we don’t, we run the risk of losing the privilege. Being subjected to the regulation of yet another state agency that may or may not align with our values and things we think ought to happen in terms of managing and regulating lawyers. The situation would be more like the doctors dealing with the Texas Medical Review Board.

I haven’t heard people compare the State Bar disciplinary process to going through the Texas Medical Review Board process. I’d venture to say with lawyers being involved at every step of the way and a bar from personal experience wants to help its lawyers succeed, we’re better off as a profession being self-regulated.

The alternative would be for the legislature to take on more of a role. A lot of those folks aren’t lawyers and don’t care if you’ve watched any of the hearings when they do start looking at the State Bar Act. I don’t think we would fare as well as lawyers in a disciplinary system run either by the legislature or Attorney General’s Office. That’s threatened from time to time as well.

When you’re at the whims of politics, keeping it under the Supreme Court, which has the authority over everyone’s law license, makes sense. We’re a necessary evil for the profession, but we’re also attorneys and all part of that profession. We have the same end goal to protect the public but also to make the profession better.

We’re not out to collect scalps. We like the investigatory hearing process that came back after the last Sunset Review in 2018. The intent was to try to resolve these cases by agreement and get some of these cases resolved early on so that it’s not stressful on an attorney. They can continue to practice and not spend tens of thousands of dollars in litigation.

We’ve got attorneys on the panels that understand what it is like to practice law, especially 40% of the bar membership is solo and small firm attorneys. For us to understand what it’s like to be on your own as a new attorney, leave government practice or big firm, hang your shingle out and not have the resources available in the big firms.

If you work for the government, try to figure it out, stay afloat financially, deal with the personal stresses and try not to let those interfere with your practice. You have a pandemic. It’s always been hard for professionals and lawyer professionals. I know you had Chris Ritter on not too long ago. The rate of depression, anxiety and suicide rate is so high for attorneys. The pandemic added another stressor mostly on the solo and small firm practitioners.

Consider also the sheer number of lawyers in the state. We’re up to over 110,000 or thereabout.

It’s 107,000, probably more. We got Bar results.

That means we’re more than 40,000 small firm practitioners out there. The Bar is great about providing resources to those folks who may not have resources available to them in the same way that the people in larger firms do. Those 7,000 to 8,000 grievances a year starts to make sense when you think about the sheer number of lawyers in our state.

I did want to go back and talk in general terms about the disciplinary process for the benefit of our readers. Some of our readers may have been subjected to grievances as lawyers, but many may not. It’d be beneficial to overview the process. What happens when a grievance comes in? How it’s treated from there? Will you take us through that process?

Before we even get to that, you have your own special set of rules that govern. That’s one thing I bet people don’t realize.

We do. The Supreme Court has promulgated Texas disciplinary rules of procedure. They are unique because they do cover how the cases come in. They’re screened and then processed. I’ll get into the different stages. It’s outlined pretty specifically in the rules. People would like for it to be more detailed, but even the rules of civil procedure are outlined and guided, but they’re not going to go step by step through every single part of the process.

There’s the State Bar Act. The rules are informed by that. The Disciplinary Rules of Professional Conduct are the rules that all the attorneys are bound by and try to follow. That’s what we use as our basis for determining whether or not a violation has occurred. The process starts with writing. Anybody can file a grievance. We have a form and do require people to use the form itself because a lot of the cases that come in are from clients or former clients.

What they need to do for us to investigate is waive their attorney-client privilege with the attorney, which then helps that attorney be able to respond fully and candidly to the grievance. We also have an online portal. Somebody could complete the form and submit it online, which is a lot easier, but not everybody has access to that. It’s been about 50/50 since I’ve been here as far as the number of cases that come in electronically and those that come in writing.

Inmates are going to send their grievances in writing. They don’t have access to the internet. Our classification attorneys screen those to determine whether or not they state an allegation that if true would be a violation. If they don’t, they are dismissed as an inquiry. The complainant has the right to appeal that to the Board of Disciplinary Appeals. The Board of Disciplinary Appeals will get the entire record at that point to decide whether or not we were correct in determining it should be dismissed.

They overturn us maybe about 8% of the time. They’re not a rubber stamp by any means. They spend the time going through everything and being thoughtful about whether or not we should investigate something or not. The complainant has the opportunity to refile after that. That’s not the final say. They can use that as an opportunity to figure out maybe what was missing in the original filing and refile or supplement it. There’s a lot of opportunities for the complainant to get their grievance investigated.

If we classify it as a complaint or upgrade it, we’re going to ask the respondent to respond to that. The respondent knows whether somebody has filed against them, regardless of whether it’s dismissed as an inquiry or upgraded to a complaint. They always get notice of it. They will have, for the upgrades, 30 days to respond. We are very flexible in terms of giving them as much time as they need if they need additional time or if they want to hire an attorney. We are bound by deadlines and some of these are jurisdictional deadlines.

Those 30 days to classify, we have to make that determination. It’s fictional. There’s a just cause deadline 60 days after the respondent, either the response is due or filed their response. That’s another jurisdictional deadline where we have to decide at that point, based on the response, whether we need to subpoena records to determine any issues that we couldn’t resolve with the response. That’s assuming we get a response when we talk about the fact that attorneys don’t always respond.

We need to either set it for a hearing before a summary disposition panel of Grievance Committee members or set it for an investigatory hearing before grievance panel members. In some cases, if it’s not appropriate for an investigatory hearing, we’ll send an election notice to the respondent. They have a choice at that point to go to either the District Court or the administrative evidentiary process.

two men sitting and having a discussion
Texas Bar Disciplinary System: The respondent knows whether somebody has filed against them. Regardless of whether it’s dismissed as an inquiry or if it’s upgraded to a complaint, they always get notice of it.

I was going to ask a couple of follow-ups about the initial grievance. Does the form, whether it’s online through the portal or in a written format, guide the complainant about possible grounds for a grievance at all? Does it help to prompt them to state an actual valid ground for agreements? Is it like Festivus and they get the air all their grievances right there on the form?

It is more like Festivus. We have instructions on the State Bar website that should guide most people in terms of what is or what isn’t misconduct. We’re not telling them how to write their complaint, but it would be helpful if I were to file a grievance to know what isn’t misconduct. I’m not going to waste everyone’s time or my time filing something if it’s not going to go anywhere.

Our website, especially our CDC part of the website, is a little bit difficult to navigate and find. If someone asks, I can get them there very quickly, but if I were a client or consumer of legal services, wanted to file a grievance and decided to look at the State Bar website, it would take me a while to find some of the information.

Most people file it, throw the kitchen sink up there and hope something sticks. Very often, they will send us volumes of papers that they think will support the grievance. It might be the transcript from the trial, discovery responses or any number of things. Quite frequently, that doesn’t help at all. We still have to read through it and sort it all out. We don’t help complainants write the grievances. We take it as it comes in, meet them where they are and figure out from the totality what might be a violation, if anything.

If you know, what percentage of grievances make it past the initial dismissal stage?

It’s only about 30%. Seventy percent of the cases get weeded out at the classification stage and the rest are going to be investigated. If it’s time to decide whether it’s going to be an investigatory hearing or election, 90% of the cases have been resolved at that point with a dismissal. It does funnel down into about 10% of the cases each year of what we’re focusing on where there’s evidence of attorney misconduct.

The dismissal generally happens early. Is this where the summary disposition panel comes in or before that?

There’s the dismissal at classification. That’s about 70% of the cases. After the investigation where we’ve received the response from the respondent attorney, most of those will end up with a dismissal, which is why we encourage attorneys to respond. Your odds are very good that the case is going to be dismissed based on your response, but that doesn’t always happen.

If a matter proceeds to an investigative hearing, it had gone away for a while but is back. Do you want to tell us a little bit about what went down there? Talk a little about how the investigative hearing process works.

We had this in place when I was at the San Antonio office back in the ’90s. The investigatory hearing process went away in 2003 or ’04. One of the differences, when they brought it back, is that we have discretion. Early in the ’90s, every single case had to go to an investigatory hearing. There was no discretion. There are a lot of cases that don’t need to be heard by a panel. There are cases where the attorney doesn’t respond but shows up for the hearing, pleads their case and it’s all resolved.

Some are so serious that there’s no way that we could settle that case. It’s such an egregious set of facts that the offer would be for disbarment and that’s not going to happen. It was good when they brought it back in 2018 that they gave us that discretion to anticipate what cases would be appropriate for early settlement and which ones need to go onto litigation.

During that period, when we didn’t have the investigatory hearing process, it was either dismissed or went to litigation. The same process either goes to District Court to the evidentiary hearing route. The cost, time and resources that went into any type of litigation, I don’t think anyone anticipated that was a solution to any problem that might’ve been the reason for doing away with that investigatory hearing in the process. All of our attorneys during that 2004 to 2018 period of time were trying cases in court. It was a lot.

They did consolidate the field offices into four main offices to save some money. That saved money, but it also hurt different legal communities by not having a CDC presence in that community, particularly El Paso. It was a disservice to El Paso not to have a CDC presence there. All of this got resolved with the pandemic strangely because everything went remote. All of our hearings and trials were done remotely.

We didn’t have the expense of traveling and bringing witnesses to El Paso. The panel members can stop whatever they’re doing, sit in on a hearing on Zoom and then go back to what they’re doing. Suddenly we didn’t have problems with quorums and having to continue cases. It’s like a mixed blessing. Nobody wanted the pandemic, but there were some lessons learned and advantages from technology that we all realized as a result of it.

Going back to the process in 2018, the idea that the legislature wanted us to start doing was to resolve cases early. Most cases that turned out to be true can be resolved. The investigation is ongoing until the panel decides whether there was a violation and the appropriate discipline. We’re settling 67% of disciplinary cases by an agreement, which is remarkable. That’s good for the lawyers, for sure.

That’s been an advantage doing it this way. It’s allowed the panels to be more involved in the process than they were before. Without the investigatory hearings, all they had were evidentiary trials. Some areas of the state would be few and far between. If an attorney elected to go to District Court, those panels would have nothing to do. That may be a mixed blessing for some of them because they complained they didn’t have anything to do and now complain they have too much on their dockets. It’s great for respondents to have the panels investigating the cases early on and offer them an opportunity to resolve them early on. They can get on with their practice.

We have a cool program. It’s a diversion program that the panels are taking good advantage of. In certain situations, if an attorney has a minor grievance filed against them, has not been in the disciplinary system before and has not been accused of stealing money or something egregious, they can go into what’s called a Grievance Referral Program. It’s tailored to the issues that they might have.

Let’s say a solo practitioner didn’t have sufficiently trained staff to make sure that things are calendared correctly, maybe missing some deadlines, neglecting to return calls, having some neglect and communication problems with their clients. We can set up a program with our administrator to give them some additional CLE training and resources through law office management.

If there might be an impairment issue, we can get them set up either through TLAP or some local lawyers caring for lawyers and maybe get them into a program or some resources. If they complete the program, their grievance will be dismissed. That would give them a chance if somebody were to ask if they had a grievance filed against them to say no because it was dismissed. Under our rules, those records are destroyed after six months. Sooner than that, they can ask for an expungement and have it completely expunged from their records. They only get a few chances at that, though.

We’re going to come back in a minute to what happens after the election and go through that process if it winds up in District Court. Before we do that, I want to ask about the range of possible disciplines. Disbarment has already been mentioned as the end of the line sanction. Every month in the Texas Bar Journal, I see a list of private reprimands, which is funny because they’re private and the person was not identified. We know that somebody got reprimanded for failing to promptly return their client’s phone calls or something minor like that. I see public reprimands. Do we get into the succession of the severity of the sanction based on history? Would it also be based on the severity of the action that was being disciplined? How does that go?

There are a variety of factors. There was always the notion of recidivism in terms of what’s the appropriate sanctions. If an attorney had a private reprimand within a certain time, in particular, if he or she had another grievance where there was a finding of misconduct and it was the same type of misconduct within a certain time, then there was no discretion that they would have to get a public reprimand in that case.

After a couple of public reprimands, it would have to be a suspension. That’s always been there, but in the 2018 rule changes as a result of the Sunset Review, the Supreme Court came out with sanction guidelines. We train our panels to follow those because it does help provide some uniformity to the extent that we can across the state. I can’t say that a panel in Dallas is going to decide the same case the same way as a panel in San Antonio, but they have guidelines.

Not only is recidivism still part of that, but if the misconduct is a certain type of misconduct, then some rules say, “You can’t give someone a private reprimand if they stole money. That’s not an option for you.” Things can ratchet up as far as the aggravating or mitigating factors that come in at the sanction phase. We do bifurcate our trials. We have first to decide whether there is misconduct. That’s the first part of the trial. This is the case if it’s in district court or before an evidentiary panel. Texas is the only state that allows jury trials in their attorney conduct cases.

two people having a discussion over a piece of paper with charts on it
Texas Bar Disciplinary System: The investigation is ongoing until the panel decides whether there was a violation and then what the appropriate discipline should be.

A case in a District Court could be decided by a jury or judge. They will have to look at those sanction guidelines to decide whether or not this is an appropriate action. My client at the litigation stage after the election is the Commission for Lawyer Discipline. This is when they come into the system. My client and all of my staff will present the case to either the evidentiary panel or to the court with a range of sanctions that are appropriate when we go to trial.

We use that in an attempt to settle the case as well, but we get our authority from the commission and the commission is a twelve-member committee. Six of the members are attorneys and appointed by the State Bar president. We have six public members who the Supreme Court appoints. We meet every month except for July and December and present all the pending cases in litigation to try to get authority to settle or tell the judge or panel because we’re advocating at that point. It is an adversary proceeding asking for this discipline as a result of the evidence that came in during that case.

Is that a different group and a different issue than the Unauthorized Practice of Law Committee?

Yes. That’s another Supreme Court committee. We work with them, but they’re looking at cases where a non-lawyer is engaging in the practice of law or the notary public is beyond what a notary public is. That happens quite frequently, especially in South Texas, because they can do legal work in Mexico. They’re not the same. They’re not notarios. There is some confusion. They do take advantage of the consumers with the name. They still call themselves notarios. There’s some fraud or identity theft that goes on. There’s a lot of interesting things that the Unauthorized Practice of Law Committee does as well.

Through the process of those answers, you’ve pretty much answered my question about what happens after the election. The lawyer gets to elect between the administrative resolution of the grievance and the administrative resolution of agreements, going into district court and potentially having a jury trial. The jury in that situation is asked whether there was misconduct. If so, they are asked to assess the discipline as well.

I often think we’ll go to the judge with that, but we haven’t had a jury for so long. It’s not rare to go the District Court route. It’s a little bit rare to go the jury trial route, but it does happen. It depends on the type of respondent and their counsel. Some of them like their chances in front of a jury. It’s going to be in the county where they practice or live. Here’s the disadvantage of going the District Court route.

Once we file our petition, it’s public. Even if you say private reprimand, if you want to appeal that and you decide you want to go the district court route or if you’ve got something harsher and you’re hoping for private sanction, you’re not going to get that. You’ve lost that option. If you go the evidentiary route, everything is confidential until the evidentiary panel rules. If they rule that it’s a reprimand, suspension or disbarment, that’s public, but if they rule that it was dismissed or a private reprimand, everything stays confidential. You’ve gone through the whole process and been able to maintain that confidentiality to the degree that you can. The complainant and witnesses know what’s happening.

It sounds a little like some of the rationale you see in arbitration versus litigation. You can keep it under wraps if it’s arbitration. All your dirty laundry is aired if it’s out in litigation. One quick follow-up though, if you go the administrative route, is that where it ends or is there the possibility of review? Can you go start over in District Court at that point? Do you have to choose either administrative or the court process?

Once you’ve elected the evidentiary or administrative process, you don’t have an option to go the District Court route, especially if you don’t like the result. In a way, it ends there, but there is an appellate review. You can go to the Board of Disciplinary Appeals, which is a twelve-member body all appointed by the Supreme Court and they’re all attorneys. An intermediate appellate court will review on substantial evidence standard. The oral arguments are almost guaranteed before the Board of Disciplinary Appeals, which is not going to be the case if you go the appellate route after a district court case, they may ask you to submit briefs and decide the whole case on submission. The Board of Disciplinary Appeals will entertain oral arguments in almost all the cases.

Those are interesting hearings. They’re all on their website and recorded on Zoom. Before the pandemic, those were at the Supreme Court courtroom. Those are cool to get to see smart people on the Board of Disciplinary Appeals and any one of them in a different time could have been the respondent’s counsel. They’re looking at it neutrally, but they have different filters sometimes.

We’re not trying to collect scalps. We’re trying to be neutral. We know what the board wants. They want to know the facts, evidence and what was in the record. They will pepper a respondent with questions. As a practice tip, if you’re a respondent, you’ve never gotten an attorney to represent you before, get an attorney to represent you on appeal, especially if you go before the Board of Disciplinary Appeals. They’ll ask you what you were thinking. If you’re on the spot and you don’t have counsel there to say, “You’re supposed to look at the record and not get into that,” you may start divulging what you were thinking and it can go south quickly.

Texas is the only state that provides for a jury trial in this situation. I can only assume that it has to do with one’s law license viewed from a property perspective. Before you’re going to be alienated from the right that you acquired after three years of law school and passing the bar exam. If you want to have a jury decide your fate on that, then go for it. Is there anything more to that or is that pretty much on target?

That’s partly it. It’s also one of those things and almost an inviolable right like the right to elect judges. As much as they would like for that to change, it’s never going to go away. Once you have a right to do something, try to take that away. I’m sure it has a lot to do with that. There are some jurisprudences to that level of property rights. We talk about the burden of proof in our cases and have the preponderance of evidence or burden of proof.

Some attorneys would like for it to be higher, clear and convincing. One Bar director thought that beyond a reasonable doubt would be a good standard. It’s that feeling that you’re taking away someone’s livelihood. I understand the tension between the two positions. We look at it, too, that it’s a privilege to have a law license. The Texas Supreme Court and federal courts that have decided it are satisfied with a preponderance of the evidence as to the standard.

At the end of a jury trial, one party or the other has the option to appeal. However, once it hits the District Court, it becomes an ordinary civil case as a practical matter.

Either way, they can all ultimately go to the Supreme Court for the final decision.

You’ve got trial attorneys in your office that are handling those cases in ordinary times, not pandemic times, trying cases and I assume handling the appeals as well. Justice Lang was doing that.

All of our trial attorneys are trying the cases and wear a different hat when they’re in front of an investigatory panel because at that stage, we’re not prosecuting the case. We’re more fact finders taking a more neutral stance to try to resolve the matter. That was a bit of a learning curve for some of our attorneys. We have some great litigators and advocates. Sometimes, it was tough to transition into a place where they were fact finders and not trying to be adversaries with that respondent.

They’re taking full advantage of Justice Lang’s expertise, calling on him to help them when they prepare for trial so that they’re making sure that they don’t leave anything on the floor and not preserve error. They’re planning every case for the potential of having to appeal or defend an appeal. It’s making us all better attorneys.

Years ago, maybe toward the beginning of my career, I had heard that disciplinary appeals might present pro bono opportunities to lawyers. It sounds like with the engagement of Justice Lang, though, that might not be the case so much anymore. Are there any pro bono opportunities that you’re aware of either working on behalf of your office, assisting your office or perhaps representing the respondent?

We’ve had attorneys volunteer in certain cases, especially certain high-profile cases, bringing out the philanthropic side of attorneys. We wouldn’t turn down the opportunity for pro bono assistance. We all know that there’s a big access to justice gap. Even attorneys can’t afford counsel. I don’t imagine many attorneys are willing to represent respondents pro bono, but there’s an opportunity there. When I was at the Judicial Conduct Commission, all of our outside counsel in litigation was pro bono, which was great for us. We got to work with great attorneys across the state like Mike Magana and Rusty Hardin. It was phenomenal to have those opportunities brought to us by so many.

We covered the waterfront as far as private reprimands, public reprimands and disbarment. Sometimes there are fines included as part of the penalty.

We don’t have the authority to fine. We can either by agreement or have it ordered that they pay restitution to the client. Those are going to be cases where they either took a fee and didn’t return any unearned portion or flat out stole the check from the insurance company. They didn’t earn the fee. In those types of cases, the client will get restitution awarded. Our attorney fees and costs can be assessed. For example, if you received a referral to the Grievance Referral Program, those fees have to be paid before you enter the program. That’s a condition to participating. You have to pay that upfront.

two people sitting at computers discussing a piece of paper
Texas Bar Disciplinary System: Once you’ve elected the evidentiary or administrative process, you don’t have an option to go the district court route, especially if you don’t like the result.

It’s the same thing for any type of suspension order. You’re not going to be able to return to active practice if you haven’t paid restitution, the attorney fees and costs. If you are disbarred or resigned in place of discipline, any restitution, attorney costs and fees have to be paid in full before you can seek reinstatement.

How does the process work for reinstatement? I’m sure your office has a big hand in that when an attorney has gone through the disciplinary process, has waited a requisite amount of time and applies to be reinstated.

Texas is one of only a few states where there’s no such thing as permanent disbarment. You can be disbarred or resign in place of discipline and then seek reinstatement after five years. If you’ve been disbarred as a result of a criminal conviction, you will have had to have served your entire term of that penalty before you can apply for reinstatement. Those five years start after you’re done with your criminal incarceration or the term of your judgment.

You’ll go to District Court. It’s like the character and fitness part of applying to be licensed in the state. You have to plead and prove certain things to show that you would not be a risk to clients or the public. You’ve lived an exemplary life up until you’ve reapplied. You put on character witnesses in those cases. The court will decide whether or not you can be reinstated. We could appeal those determinations, but we typically don’t. The attorney seeking reinstatement still has to take the Bar exam. There’s an impediment to becoming fully licensed again.

One little detail I wanted to come back to before we start wrapping up is that some lawyers don’t respond to grievances. Tell us about that. Why would a lawyer not respond to a grievance? What do you see typically in that?

We hear concerns about lawyers not responding and maybe they’re impaired or struggling. We ought to do more to reach out to them and get them to participate in the process. That makes sense on a certain level because 90% of these cases get resolved before a hearing based on the response of the attorney and our investigation. The odds are if you respond and cooperate, it’s going to go well for you.

I narrowed it down to maybe three general categories of respondents that don’t respond. There’s a group that doesn’t respond and it’s entirely strategic. I don’t know why, who’s giving them advice that it’s a good litigation strategy, but they will wait until the day before the hearing. They will show up either at the hearing or right before, dump all kinds of records on us and hope they’ll get something good. The problem with that is there is a violation for failure to cooperate.

They could escape any consequences under the allegations from the complaint and get pretty severe sanctions for failure to cooperate or respond. That seems like a risky route to take, but there’s that. Maybe it’s a way to delay things. We do see some frequent flyers who’ve been through the system enough to know that, “I’ll drag this out and go as far as I can without letting them know anything about my defense.”

We’ll get into litigation. I’ll file a TCPA motion, even though those no longer apply to disciplinary cases. That’ll get denied, but I’ll appeal it. We’ll go all the way, ask for en banc or a petition for review and we’ll be strung along for years. There’s a pandemic that keeps everything stuck. Deadlines are all told. The courts are overly generous to everybody for continuances. We’ll have these nonsense appeals that take three years to resolve before we can even have a trial on the merits. There’s that group.

There’s the group that failed to update their profile in membership. That’s very frustrating. One because it’s required and two, that’s where we get the information as to where to serve folks. All we have to do is show the court that their membership profile says it’s their last known address. We attempted and we couldn’t. We can get an alternate service and default. It’s hard to get default in that situation, but it’s not impossible.

We do a lot to reach out to the attorneys that don’t respond. We have a second notice letter that goes out. One of the advantages of the pandemic and doing everything electronically is we can send things to their email as well as by mail. They are getting it in different ways. We call them. We’ve had panels ask our attorney to go down the street to the lawyer’s office, see if they’re there and would come to the hearing. It’s very rare for us to get a default judgment. We certainly can’t get it without serving them.

Eventually, we find out that they moved, switched firms, and everything was going to the old address, either returned to us or thrown out. They didn’t know they had to respond, which is frustrating, but it gets resolved. That’s all fine and good. There’s a smaller group of attorneys that are impaired. Our grievance and disciplinary process is the least of their troubles at that point.

We go out of our way to reach out, try to communicate and get them to cooperate. They’re the ones that are the most likely to avoid us. They will actively avoid communicating with us, hide and evade service, things like that. Those cases will go as far as we can, but if we don’t have good service, there’s not much that can be done.

I want to point out for anyone reading that you can’t and don’t get any from people who reach out to TLAP.

It’s so strict. Their confidentiality is 100% guaranteed and it’s a vault. We don’t ask. There’s not even a point in us asking, we’re not going to get it. We will refer people to TLAP helpline, which gets a lot of calls from attorneys in crisis. The first thing they’ll do is try to get them in touch with TLAP. We will reach out to TLAP and ask them to reach out to an attorney. They are very good at doing that. They can only ask that person to participate, but they can’t force them. As part of our suspension orders requirements, we have attorneys participate in either TLAP or some mental health evaluation program and then follow through. We can’t find out any specifics through TLAP as far as compliance beyond they complied or didn’t comply.

Do you have any tips for lawyers on staying out of the grievance process or avoiding grievances altogether?

Based on the number of grievances and sanctions we issue on simple things like communication, we have a whole section of the State Bar that’s dedicated to trying to resolve some of those complaints that come in before their grievances that deal with a lawyer failing to communicate with a client, return the file or funds. They boil down to fee disputes, but there’s a balance if they cooperate with the CAP Program, the Client Attorney Assistance Program.

We all know that there are clients with expectations way up here as far as what they expect the attorney to communicate and do for them. That would be the second thing. Communicate and manage expectations much better. If you tell the client at the front, if it’s clear in your engagement letter that this is how frequently I’m going to communicate with you, that’s going to resolve a lot of these conflicts. Many of these complaints boil down to a failure to communicate, neglect, either charging an unconscionable fee, not having an engagement letter or having an engagement letter that doesn’t clearly define the scope of representation or the costs and fees earned.

There’s still so much confusion over flat fee representation. Attorneys are always so shocked when they get a grievance. We investigate and ask them why they didn’t return an unearned fee. They’re like, “It was a nonrefundable retainer.” They show us their engagement letter and it’s not in there. They’re no Rusty Hardin. Make a case that, “I took this client, so in this case, I wasn’t able to take this other case.” Those seem to be the biggest things. You can’t teach somebody or train an attorney not to lie or steal. Those are character flaws. I can talk all around the state to new attorneys, law students, solo and small firm practitioners. I’m not going to be able to change that path for them.

Seana, we appreciate you coming on. This has been extremely interesting and educational. Hopefully, other people reading will learn a lot from it too.

I hope so. It was fun. I enjoyed it.

Thank you so much, Seana. We appreciate it.

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