Even if you’ve never had a grievance filed against you, you probably know someone who has or who one day will have. There are a few recent changes to the process to be aware of. As part of the sunset legislation that continued the State Bar for another 12 years, the legislature mandated changes to the Texas Rules of Disciplinary Procedure.1 The Texas Supreme Court has now published the new rules, filling in the specifics.2
There are three principle changes. First, the State Bar’s administrator of the grievance system—the office of the Chief Disciplinary Counsel (CDC)—is now authorized to set cases for a hearing and subpoena records at the investigation stage.3 Second, the rules formally recognize a pretrial diversion program (Grievance Referral Program) and set criteria for eligibility.4 Third, the rules establish sanction guidelines (not unlike the federal sentencing guidelines) correlating appropriate sanctions to specific rule violations and providing aggravating and mitigating factors.5
To put these changes in context, a quick overview of the process and history is helpful. (The flowchart below provides an at-a-glance view of it.) Grievances are first screened to see if they allege a violation of the Rules of Professional Conduct. If not, the grievance is called an “inquiry” and is dismissed. But if it does allege a violation, a grievance is classified as a “complaint” and the accused attorney is notified and asked to respond. An investigation ensues to determine if there is “just cause” to believe misconduct occurred. “Just cause” is cause that would “induce a reasonably intelligent and prudent person to believe” professional misconduct requiring sanction occurred.6 If there is no “just cause,” the complaint is set for a quicker (sometimes telephone) resolution by a local grievance committee (a process now called “summary disposition”). If just cause exists, there are two ways to proceed:
1) an evidentiary hearing is set before a local grievance committee to adjudicate whether misconduct occurred and impose a sanction, or
2) the attorney can opt for a trial in district court.
Originally, the grievance committees performed all these tasks—screening, investigating, determining just cause, and adjudication.7 It was a decentralized system—but it was also inconsistent. A committee in one part of the state might dismiss a case early in the process while another might have someone with specialized knowledge investigate it. With each sunset review, however, the process has become more centralized and standardized, often with the CDC carrying out more duties. The latest changes, set to go into effect June 1, continue this trend.
Return of the investigatory hearing and subpoena power
One of the new changes (shown in purple in the chart below) gives the CDC the option to set an investigatory hearing before the local grievance committee or subpoena documents and witnesses at the investigatory phase.8 This new procedure is actually a return to an old idea. Before January 2004, there was an investigatory hearing stage between the complaint and the “just cause” stages,9 but it was eliminated because it was thought too cumbersome.10 At that time, there was no way to dismiss a complaint. So even when there was no evidence of a violation, a grievance committee still had to conduct an investigatory hearing. The 2003 amendments eliminated the investigatory hearing, added the summary disposition setting, and moved the subpoena rules into the rules for evidentiary hearings.11
There must have been some nostalgia for the pre-2004 days and their investigative tools because the latest rule changes restore the CDC’s ability to subpoena bank records and client files (and other documents) and examine witnesses at an investigatory hearing—all before the “just-cause” determination.12 The goal is to resolve some cases earlier in the process, before the more adversarial, evidentiary hearing phase.13 Adding another stage to the process will inevitably lengthen the resolution time for some grievances (and perhaps permit prosecution of cases that might otherwise have been dismissed). Before these amendments, the CDC had 60 days to investigate a complaint and determine if there was just cause. Now, if there is an investigative hearing or subpoena issued, the CDC’s 60 days will not begin to run until the hearing is over or the subpoena complied with.
The amendment does not restore the attorney’s ability to subpoena records or witnesses at the investigation stage, an ability the old rules once afforded him or her. The attorney can still argue to the grievance committee chair that records that the CDC subpoenas are not “material” to resolving the complaint, but there is no requirement that the CDC notify the attorney of subpoenas sent to third parties, so the opportunity to object will not always exist.
Grievance Referral Program
The new rules also set out eligibility requirements for a diversion program—called the Grievance Referral Program—for minor misconduct cases. Minor misconduct would generally exclude misappropriation of funds, breach of fiduciary duties, dishonesty, fraud, or cases involving substantial harm or prejudice to a client. The attorney also must not have been disciplined at all within the last three years or within the last five years for similar misconduct. Attorneys admitted into the program at various stages of the process can have their cases dismissed in exchange for successfully completing conditions such as substance abuse treatment or law practice management.14
New sanction guidelines replace the prior discretionary system15 and promote punishment consistency among the local grievance committees and between those grievance committees and district courts.16 The guidelines list the kind of conduct that would generally warrant disbarment, suspension, public reprimand, or private reprimand. The guidelines also list aggravating factors (such as prior disciplinary history and misconduct during disciplinary proceedings) and mitigating factors (such as inexperience, paying restitution, and remorse) but provide no formula to apply these factors, only that they “may be considered.”17 Disbarment is generally reserved for specified intentional or knowing mental states and serious or potentially serious injury to another. Prosecutors will be accustomed to these mental states as the definitions of “intent” and “knowledge” are similar to the Penal Code definitions. An appendix to the rules specifies which guideline applies to each Rule of Professional Conduct.
As examples, consider the following ethics rules violations:
• prosecuting a case that the prosecutor knows lacks probable cause (Rule 3.09)
• failing to disclose all known information tending to exculpate the defendant or mitigate the offense (Rule 3.09)
• telling a newspaper reporter that the defendant in an upcoming trial has confessed (Rule 3.07).
These violations fall under the guidelines category for Violations of Duties Owed to the Legal System. Violations of Rule of Professional Responsibility 3.09 can also be categorized as a Duty Owed to the Public, which applies to misuse of an official or governmental position or when a person in an official or governmental position fails to follow applicable procedures with injury to the integrity of the legal process. Disbarment is generally appropriate for these violations when a prosecutor “knowingly engages in an abuse of the legal process with the intent to obtain a benefit for the [attorney] or another … and causes serious or potentially serious inference with a legal proceeding.”18 Suspension is generally appropriate when the prosecutor acts knowingly but without intent to benefit himself, herself, or another and where there is only interference, rather than serious interference, with a legal proceeding. Any reprimand for a violation of our ethical duty to disclose exculpatory and mitigating information, which would generally be appropriate when a prosecutor acted negligently, must be public.19
All of us as prosecutors should have a working knowledge of how the bar regulates our profession. After reading this article, you’ll be more up-to-date on the process. You also may be just the sort of person your local grievance committee needs to help implement a just and fair grievance system. Consider expressing interest to your district’s state bar director. Their contact information is on the state bar’s website.20
1 SB 302, 85th Leg., R.S., Ch. 531 (2017). Senate Bill 302 mandated a change to Tex. Disciplinary R. of Professional Conduct 8.03, requiring attorneys to provide the State Bar with documentation (within 30 days) of a conviction or deferred for certain criminal offenses or out-of-state disciplinary action. Also, disciplinary judgments will now be posted to attorneys’ online State Bar profiles (Tex. Gov’t Code §81.115(b)), and a new committee will review and oversee amendments to the disciplinary rules and procedures (Tex. Gov’t Code §81.0871, et seq.). See THIS LINK for more on this committee.
2 Tex. S. Ct., Misc. Docket No. 18-9031, “Order Adopting Amendments to the Texas Rules of Disciplinary Procedure,” Mar. 1, 2018 (Disciplinary Rule 2.12) (available online at http://www.txcourts.gov/supreme/administrative-orders/2018/).
3 Id. (at new Tex. R. Disciplinary P. 2.12); Tex. Gov’t Code §§81.080 & 81.082.
4 Tex. S. Ct., Misc. Docket No. 18-9031 (2018) (at new Tex. R. Disciplinary P. 16.01-16.04); Tex. S.B. 302, 85th Leg., R.S., ch. 531, §15 (2017).
5 Id. (at new Tex. R. Disciplinary P. 15.01, et seq.); Tex. Gov’t Code §81.083.
6 Tex. S. Ct., Misc. Docket No. 18-9031 (2018) (at new Tex. R. Disciplinary P. 1.06.Z).
7 See State Bar of Texas, “Staff Report to the Sunset Advisory Commission,” July 1990, at p. 35-37 (available online at https://www.sunset.texas.gov/reviews-and-reports/agencies/state-bar-texas).
8 Tex. S. Ct., Misc. Docket No. 18-9031 (2018) (at new Tex. R. Disciplinary P. 2.12).
9 Tex. S. Ct., Misc. Docket No. 03-9209, “Amendments to the Texas Rules of Disciplinary Procedure,” Dec. 29, 2003 (Disciplinary Rule 2.12) (available online at http://www.txcourts.gov/supreme/administrative-orders/2003/).
10 See interview with former Chief Disciplinary Counsel Dawn Miller, Robert P. Schuwerk, 48A Tex. Prac., Handbook of Tex. Lawyer & Jud. Ethics §17:2 (2018 ed.).
11 Tex. S. Ct., Misc. Docket No. 03-9209 (2003) (current Tex. R. Disciplinary P. 2.17.H), reprinted in Tex. Gov’t Code, tit. 2, subtit. G, Appendix A-1.
12 New Tex. R. Disciplinary P. 2.12.B & C.
13 State Bar Self-Evaluation Report to the Sunset Advisory Commission, at p. 282 (Sept. 1, 2015) (available online at https://www.sunset.texas.gov/reviews-and-reports/agencies/state-bar-texas).
15 Under the former rule, evidentiary panels were required to consider various factors in setting an appropriate sanction, including the nature and degree of misconduct, surrounding circumstances, loss or damage to the client and the profession, specific and general deterrence, and maintaining the respect of the legal profession. See Tex. S. Ct. Misc. Docket No. 03-9209 (2003) (former Tex. R. Disciplinary P. 2.18).
16 New Tex. R. Disciplinary P. 15.01.B.
17 New Tex. R. Disciplinary P. 15.09.A.
18 New Tex. R. Disciplinary P. 15.05.B.1.
19 Tex. Gov’t Code §81.072(b)(11)(B)(ii); New Tex. R. Disciplinary P. 15.08.5(c).
20 Each elected State Bar director nominates members to the committees within his or her district, who must be appointed by the State Bar President. Tex. R. Disciplinary P. 2.02. (A map of State Bar districts and director contact information is available at https://www.texasbar.com/Content/NavigationMenu/NewsandPublications/VolunteerandStaffGuide/BoardofDirectors.pdf).