Laws In Texas

In the Pandemic Pandemonium, Texas Supreme Court’s BODA Overturns it’s Own Precedent and Effectively Repeals Disciplinary Rules.

BODA has just repealed Tex. Disciplinary Rules of Prof’l Conduct R. 8.03 (a) and overturned Texas Supreme Courts own precedent in Comm’n v Cantu (2019).

LIT COMMENTARY

Repugnant Austin Attorney Mark Daniel Hopkins admitted he lied in court and tried to have the elder Burkes flung into jail and the Magistrate Judge on his side. The latter he achieved.

It should be recorded, when Bray left his post as a public defender to become a Judge, he had slapped Hopkins down at the first conference hearing – in a packed courtroom – and where he nonchalantly said to Hopkins;

“I hear you don’t like magistrate judges…Well, we’ll deal with that later.”

This was referring to Hopkins prior actions in a related case. Hopkins had demanded in motions to the 5th Circuit, while on appeal, that he wanted former honest Magistrate Judge Stephen Wm. Smith “reassigned”. By the time the appeal was over, Smith was no longer on the bench.

In the intervening period between the first scheduling conference and the debacle below, Sr Judge David Hittner must have had a word in Bray’s ear about Hopkins needing to win to keep the post financial crisis, manufactured Texas ‘precedents’ intact re foreclosure cases.

Bray obliged, and did a complete 360 as discussed below.

Magistrate Judge Peter Bray said in his courtroom that if Hopkins [criminal and false] allegations about the Burkes statements were true, they were way more serious than any counterclaim (by Hopkins).

That is a damning statement.

At LIT, we’ve published news stories about many litigants removed from S.D. Tex. courtrooms to jail for less.

“Wanting ‘certain judges to be shot” would most certainly land the Burkes in shackles and chains and facing a substantial time in jail.

However, after stammering and stuttering on the legal wordsmithing of their delayed rejection letter – and despite Hopkins abhorrent actions against an 80+ year old couple – BODA is now feebly trying to support its outrageous claims that disciplinary action against horrid Texas lawyer Hopkins is not actionable.  It’s truly beyond farcical.

BODA has just repealed Tex. Disciplinary Rules of Prof’l Conduct R. 8.03 (a) (at a minimum) and also overturned Texas Supreme Courts’ own precedent in Comm’n for Lawer Discipline v. Mark Cantu (2019).

We’re convinced the letter dated 25th June which the Burkes received on July 2nd by email was sent in error.

The Burkes have asked that question in their detailed response below. We’ll see what they have to say at BODA shortly, unless they go back to the silent treatment, which would be a grave mistake.

Defund the Underhand Bars – Here’s the Top 4 in 2020

July 3, 2020

Board of Disciplinary Appeals
Attn: Jenny Hodgkins
Executive Director / GC
PO Box 12426, Austin, TX, 78711

Via Email: appeal@txboda.org

Dear Ms. Hodgkins

COMPLAINT RE: MARK DANIEL HOPKINS

We refer to your delayed letter dated 25 June, 2020, received via email on July 2, 2020, wherein you write;

“After reviewing your grievance as you originally filed it and no other information, the Board has determined that the conduct you described in the grievance does not violate the Texas Disciplinary Rules of Professional Conduct or is otherwise not actionable under the Texas Rules of Disciplinary Procedure.”

We specifically asked Ms Claire Reynolds, Public Affairs Counsel, Office of the Chief Disciplinary Counsel in a lengthy and detailed email thread prior to submitting our appeal to BODA that she was going to furnish BODA the email thread as part of the ‘appeal file’. On May 4th, 2020, in her email responses she wrote;

“I am happy to answer any other questions you have”.

We also confirmed this in our email/complaint to BODA.

Relying upon Ms. Reynolds statement as standard practice, we seek your earliest clarification of BODA’s decision included reviewing the “other information”.

This other information is critical as it revolved around a sole issue which is disputed. Mr Hsu, the Classification Attorney, rejected the Burkes case(s) against Hopkins as Ms Reynolds states in the email thread;

“When we say “these allegations have been previously dismissed by BODA” we are just stating that the allegations in this grievance were presented in your prior dismissed grievance, and that BODA upheld that dismissal. In other words, the classification attorney believed that you had presented basically the same set of facts.”

This Error Can be Resolved Quickly.

Hopkins lied when he stated aggressively and dishonestly to the court – not once – but twice – that the Burkes wanted “certain judges to be shot”.

This has never ever been stated before in prior facts presented to Mr. Hsu or in a prior grievance filed by the Burkes against Hopkins.

If you read the complaint and the “other information”, it clearly disposes of the statement by Classification Attorney, Mr. Hsu, as factually erroneous.

Surely BODA is not condoning this abhorrent, felonious and premeditated evil conduct as ‘zealous advocacy’ and acceptable practice by a Bar registered attorney in Texas?

Returning to that horrific day,  included in the detailed complaint documentation BODA ‘has reviewed’, is this snippet from the transcript of the conference before Judge Bray, wherein he states;

 

 

There is only one way his words can be ‘textually’ interpreted, which we will discuss herein. (Note: there are many typographical errors and omissions from the transcript. The error in the above snippet; “why” should be replaced with “way”).

 

After reading your resume on the BODA website Ms Hodgkins, we are confident you know most judges and lawyers in the circuit and can recite Texas rules and laws better than most.

That said, Peter Bray was a public defender who was struggling to make a living, supplemented his job with a part-time retail position and could not subscribe to the pension plan as he could not afford it.

Clearly, he has achieved financial freedom when he upgraded to a Magistrate Judge and we assume he will no longer find it necessary to work a second job and can catch up with those missing pension payments to secure his retirement.

That said, considering the unnerving events which took place in rapid succession in 2018, an  honest and outstanding predecessor left the bench to be replaced by Bray.

We remember our first meeting with Judge Bray, where he went from telling Hopkins in a packed courtroom at the initial scheduling conference something along the lines of; “I hear you don’t like magistrate judges…Well, we’ll deal with that later.” – to his complete reversal at the September 2019 conference discussed herein.

Quite frankly, the optics would indicate to us and as former Texas Supreme Court Justice Tom Phillips stated on 60 Minutes 33 years ago (accurately named “Justice for Sale in Texas”)  and again in a 2019 Texas Chapter of the Federalist Society, “I took him at his word, but it didn’t look good…”.

Unfortunately, Judge Bray’s [in]action from the bench[1], his prejudgment [believing Hopkins lies at face value instead of controlling the courtroom and a rogue attorney] and pervasive bias from the bench including his resulting M&R in the Burkes case has only increased the constitutional “injury-in-fact” and further delayed justice.

Judge Bray’s history as a public defender is very relevant and extremely important in our case(s) before you and the circuit. We’ve ferreted out the relevant sections as Judge Bray likes to refer to;

Count I

If BODA were to maintain the current untenable position by affirming Mr. Hsu’s erroneous statement, you would be overturning recent Texas Supreme Court precedent in Comm’n for Lawyer Discipline v. Mark Cantu (2019).

Count II

If BODA were to maintain the current untenable position by affirming Mr. Hsu’s erroneous statement, you would, in effect, be repealing Disciplinary Rule(s) per Comm’n for Lawyer Discipline v. Mark Cantu (2019);

“The obligation to report attorney misconduct applied doubly to Judge Isgur, who is not only a judge but a licensed Texas attorney.”

Under Texas Disciplinary Rule of Professional Conduct 8.03(a).[2]

Count III

Peter Bray was the Public Defender in the case; United States v. Yarbrough (4:14-cr-00526), District Court, S.D. Texas which is where Yarbrough threatened federal Judge David Hittner and was sentenced to 21 months in prison and 3 years supervised release for that threat. As such, Judge Bray was fully aware of the seriousness and criminal implications of Hopkins false statements on that fateful day. The above snippet from the transcript along with the Burkes affidavits confirm that when he shouted at John Burke “Are YOU a CRIMINAL?”.[3]

Count IV

The complaint included Judge Bray’s M&R which includes;

“Even if the Burkes had shown that Defendants are “debt collectors,” they have not alleged sufficient facts to show that Defendants engaged in prohibited conduct under either statute. Both statutes prohibit debt collection methods that threaten, harass, abuse, or deceive a debtor. Examples of prohibited methods include: sending a letter to a debtor that looks like it is from a government agency, using obscene or profane language when contacting a debtor, and threatening a debtor with violence or illegal action. See 15 U.S.C. §§ 1692d-1692j; Tex. Fin. Code Ann.§§ 392.301-392.307 (West).

Hopkins ‘live’ actions in Judge Bray’s courtroom that day alone is actionable per the above and shows the court the very “low bar” of this illegal debt collector, who is willing break the law and risk his State Bar license to win the case at any and all cost.

Count V

At the top of the Burkes Objection to M&R;

THE BURKES’ ATTACHING AFFIDAVITS: The Burkes attach individual affidavits pointing out the MJ shouted at John Burke the following question;

“Are you a CRIMINAL?”

John Burke, calmly replied;

“Do I look like a CRIMINAL, your honor?”.

No Bar or Court of Law can defend Hopkins nor say Judge Bray didn’t take the false allegations seriously. It’s slander in civil language, its criminal in law. And disciplinary proceedings are quasi-criminal. The Burkes complaint(s) against Hopkins are valid.

Count VI

In our email thread with Ms. Reynolds we explained our argument and citing;

“Our inquiry relates to the classification of the crime, not the tribunal’s subjective judgment of character of the particular lawyer convicted. In short, we classify the crime, not the lawyer.” Thacker, Matter of, 881 S.W.2d 307, 309 (Tex. 1994).[4]

Relying holistically on our response herein, we are convinced beyond a reasonable doubt, Mr. Hsu’s rejection is error.

The Rules

See footnotes.[5] Note: Nowhere could we find a local rule that says a rogue lawyer can falsely accuse opposing counsel (pro se’s) of wanting certain judges to be shot as being acceptable conduct becoming of the bar. Furthermore, we’ve included S.D. Tex LR, TRDPC and ABA Model Rules of Professional Conduct based on In re Dresser Industries, Inc., 972 F.2d 540 (5th Cir. 1992)

Summary

The Burkes truly believe this delayed letter must have been issued by mistake.

Comm’n for Lawyer Discipline v Daniel Rizzo (May 2020) is an example of Texas perhaps trying to correct grave error and a travesty of justice in the Alfred Dewayne Brown case.

Fortunately, via this timely intervention, the Burkes case can be quickly rectified. BODA should correct this error and injustice by returning the Burkes complaint(s) to the Commission as a formal complaint.

We look forward to your earliest expedited response. Thanking you in advance for your continued assistance.

Stay safe. Happy Independence weekend to you and yours.

Respectfully

s/ Joanna & John Burke

“We’re blessed with the opportunity to stand for something—for liberty and freedom and fairness. And these are things worth fighting for, worth devoting our lives to.” – Ronald Reagan

CITATIONS / FOOTNOTES

[1] See;  former Goodwin Procter, LLP, lawyer, now law professor, Associate Professor Luke M. Scheuer who previously held adjunct positions at Boston College Law School, the University of Massachusetts School of Law, and Boston University School of Law and his paper; “Duty to Disclose Lawyer Misconduct” (2010), Available at: https://works.bepress.com/luke_scheuer/2/, wherein he discusses cases like In Re Himmel.

[2] As we reminded the Virginia State Bar earlier this week, they are lawyers themselves and have a duty to report misconduct. See their own presentation – and now based on our answer herein – the same standard must apply in Texas;

 

For example, we assume pro se, as own counsel, are under “other lawyers” or perhaps “concerned citizens”. Either way, it is clear parties or non-parties can file a complaint at any time – see https://iclr.net/wp-content/uploads/2016/04/VirginiaDisciplinaryOverview.pdf , in part;

 

WHO FILES BAR COMPLAINTS

The BAR: in the course of investigating misconduct, the BAR investigator or Assistant Bar Counsel may discover conduct by the lawyer or some other lawyer that violates the Rules of Professional Conduct.

Note: We have not included the full list, which you will see in the PDF referenced above. In short order, if you are a lawyer and you spot misconduct, you have a duty to report and/or investigate.

 

[3] See Judge confirming it is normal practice for the federal court to apply States Rules in federal court cases re attorney misconduct charges, in this case, Michigan:

 

“Ethical rules involving attorneys practicing in the federal courts are ultimately questions of federal law. The federal courts, however, are entitled to look to the state rules of professional conduct for guidance.

 

In re Snyder,472 U.S. 634, 645 n. 6 (1985); see National Union Fire Ins. Co. v. Pittsburgh, Pa. v. Alticor, Inc.,466 F.3d 456, 457-58 (6th Cir. 2006), vacated in part on other grounds,472 F.3d 436 (6th Cir. 2007) (applying Michigan Rules of Professional Conduct). The district judges of this court have determined that the ethical obligations of attorneys practicing before it will generally be governed by Michigan Rules of Professional Responsibility. See W.D. MICH. LCIVR 83.1(j); City of Kalamazoo v. Michigan Disposal Serv. Corp.,125 F. Supp. 2d 219, 231 (W.D. Mich. 2000).”

 

El Camino Resources, Ltd. v. Huntington National Bank, 623 F. Supp. 2d 863, 876 (W.D. Mich. 2007)

[4] Looking outwith Texas for comparison, the Burkes cite;

A proceeding for the discipline of an attorney instituted by the Practice of Law Committee of the Minnesota State Bar Association is considered in a different light from an ordinary action; it is a proceeding “sui generis

[a Latin phrase that means “of its/his/her/their own kind, in a class by itself”, therefore “unique” – Wikipedia].

It is not the trial of an action or suit between adverse parties but an investigation or inquiry by the court into the conduct of one of its officers. – In this complaint, it unequivocally presents NEW [MIS]CONDUCT by HOPKINS – again rebuffing Mr. Hsu.

The question before the court is the fitness of the attorney to continue as a member of the legal profession, and the test is whether the conduct of the attorney comes up to the standards set by the canons of ethics. 

Held, under the record here, the findings of the referee justify a disbarment of the respondent.

In re Application for Discipline of Peterson, 260 Minn. 339 (Minn. 1961)

 

[5] See Appendix A

Appendix A

In order to assist, the Burkes now provide their own [pro se level of evidence/rules/citations/supporting documents] for your perusal and consideration:

Hopkins has already admitted to his lies on that day and there were several witnesses who can confirm this, including Magistrate Judge Peter Bray.

We are more than confident when Hopkins is questioned, he would also confirm that the Burkes and/or Hopkins never made the same statement in the ‘prior grievance’ which Mr. Hsu relied upon to dismiss the complaint(s) as an inquiry.

The above facts are the substance of the Burkes complaint(s) against Hopkins and clearly show bad faith[1], actual malice and reckless disregard as to the truth or falsity of his statements.[1]

The Texas Disciplinary Rules of Professional Conduct

BODA should not need any assistance here. Hopkins has breached several Rules. The Burkes would point to the following categories, wherein there are Rule violations, namely; Client-Lawyer Relationship, Advocate, Non-Client Relationships, Law Firm and Associations and Maintaining the Integrity of the Profession.

The ABA Standards

5.1 FAILURE TO MAINTAIN PERSONAL INTEGRITY

Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, or in cases with conduct involving dishonesty, fraud, deceit, or misrepresentation:

5.11 Disbarment is generally appropriate when:

(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or

(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.

LOCAL RULES OF THE United States District Court FOR THE SOUTHERN DISTRICT OF TEXAS

S.D. Tex. Local Rules, Appendix C, N. “Avoid disparaging remarks and acrimony toward counsel, and discourage ill will between the litigants. Counsel must abstain from unnecessary references to opposing counsel, especially peculiarities.”

S.D. Tex. Local Rules, Appendix D, Guidelines for Professional Conduct, A-K.

Extract from Cantu Opinion by Texas Supreme Court;

TEX. CODE JUD. CONDUCT Canon 3(D)(2).

The obligation to report attorney misconduct applied doubly to Judge Isgur, who is not only a judge but a licensed Texas attorney.

Under Texas Disciplinary Rule of Professional Conduct 8.03(a),

“a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.”

TEX. DISCIPLINARY RULES OF PROF’L CONDUCT R. 8.03(a).

Judge Isgur correctly testified that he sent his Opinion to the State Bar because, as an attorney, “[he] was mandated to do it by the State Bar of Texas.”

May 14, 2020

Good morning Ms. Reynolds,

Could you please confirm that our email thread regarding our complaint against Mark Daniel Hopkins will be part of the “file” which Mr Hsu and the Texas Bar forward to BODA when they request our appeal file.

Your earliest response is anticipated.

Stay safe and p.s. is BODA’s email ok to send notices to after the Texas Supreme Court ransomware attack?

Thank you.

May 14, 2020

Yes, the information will be provided to BODA. I assume that BODA’s email is safe, but they are a different entity than us, so you may want to check with them separately.

Claire Reynolds
Public Affairs Counsel
Office of the Chief Disciplinary Counsel
State Bar of Texas
P.O. Box 12487
Austin, TX 78711
(512) 427-1354
creynolds@texasbar.com

May 15, 2020

202002159 – John Burke – Mark Daniel Hopkins
Bar No. – 00793975 / Dismissal Date: 04/7/2020

202002158 – Joanna Burke – Mark Daniel Hopkins
Bar No. – 00793975 / Dismissal Date: 04/7/2020

We now attach 2 appeal forms after discussion with Ms Claire Reynolds.

As you will note, the DATE is wrong for dismissal on these forms. It was received by EMAIL on Friday 17th of April, 2020, so our appeal is timely.

Our conversation with Ms. Reynolds includes a detailed email thread which will be part of the inquiry file you receive in relation to our complaint. Please confirm receipt of our email and forms. Thank you.

June 25, 2020

EXECUTIVE DIRECTOR & GENERAL COUNSEL JENNY HODGKINS
EXECUTIVE ASSISTANT
JACKIE TRUITT

RE: Disposition of Appeal Notice

Joanna Burke v. Mark Daniel Hopkins 202002158; BODA Case No. 64426

Dear Ms. Burke:

On June 25, 2020, the Board of Disciplinary Appeals appointed by the Supreme Court of Texas considered your appeal from the dismissal of your grievance.

The Board is a separate body from the State Bar of Texas Chief Disciplinary Counsel who screened your grievance when you filed it.

After reviewing your grievance as you originally filed it and no other information, the Board has determined that the conduct you described in the grievance does not violate the Texas Disciplinary Rules of Professional Conduct or is otherwise not actionable under the Texas Rules of Disciplinary Procedure.

Therefore, the Board affirms the dismissal of your grievance.

This decision concludes your appeal, and the Board has closed its file.

The Board’s decision is final.

Information concerning the disciplinary system, the Texas Disciplinary Rules of Professional Conduct, and the Texas Rules of Disciplinary Procedure are available at www.texasbar.com. The Board’s Internal Procedural Rules are available at www.txboda.org .

Very truly yours,

Jenny Hodgkins

Executive Director & General Counsel

Staff (TXBoda.Org)

Jenny Hodgkins, Executive Director and General Counsel.  

With over twenty years in public and private practice, Jenny brings a wealth of specialized legal and administrative experience to the BODA staff.

She served the Supreme Court of Texas for over fifteen years as Staff Attorney to Justice Paul W. Green, where she advised the Court and managed a team that helped write opinions on cutting edge legal issues.

Before that, she served as Staff Attorney for Original Proceedings, handling mandamus and other emergency matters.

In her time at the Supreme Court, she worked with twenty-two justices, supervised the drafting of over 185 published opinions, and managed countless appeals—including BODA appeals.

She practiced administrative and environmental law in private practice for several years before entering public service.

A native Texan, Jenny graduated summa cum laude from Texas Tech School of Law, where she was Editor in Chief of the Texas Tech Law Review and Order of the Coif.  She received a B.A. in Anthropology from the University of Texas.

Jackie Truitt, Executive Assistant

Jackie Truitt joined the BODA staff in 2000 and assists with all aspects of office management, including docket control, meeting arrangements and telephone inquiries.

She also has primary responsibility for classification appeals from intake through disposition.

SUPREME COURT OF TEXAS

Supreme Court Building, P O Box 12248, Austin 78711-2248 201 West 14th Street, Rm 104, Austin 78701

Phone: (512) 463-1312; Fax: (512) 463-1365 (fax filings not accepted) http://www.supreme.courts.state.tx.us

 

Nathan L. Hecht . . . . . . . . . . . . . . . . . . . Chief Justice……………………………………… 463-1348

 

Kathy Miller . . . . . . . . . . . . . . . . . . . . . . . .

Martha Newton . . . . . . . . . . . . . . . . . . . . . .

Executive Assistant………………………. 463-1348

Staff Attorney………………………………. 463-1348

 

Paul W. Green . . . . . . . . . . . . . . . . . . . . . Justice………………………………………………. 463-1328

Linda Smith . . . . . . . . . . . . . . . . . . . . . . . . . Executive Assistant………………………. 463-1328

Jenny Hodgkins . . . . . . . . . . . . . . . . . . . . . . Staff Attorney……………………………….. 463-1328

Eva M. Guzman . . . . . . . . . . . . . . . . . . . . Justice……………………………………………….. 463-1340

Erik Avots . . . . . . . . . . . . . . . . . . . . . . . . . . Executive Assistant………………………. 463-1340

Julie Buchanan . . . . . . . . . . . . . . . . . . . . . . . Staff Attorney………………………………. 463-1340

Debra H. Lehrmann . . . . . . . . . . . . . . . .  Justice………………………………………………. 463-1320

Sara Hash . . . . . . . . . . . . . . . . . . . . . . . . . . . Executive Assistant………………………. 463-1320

Michel Walter . . . . . . . . . . . . . . . . . . . . . . .  Staff Attorney………………………………. 463-1320

Jeffrey S. Boyd . . . . . . . . . . . . . . . . . . . . . Justice………………………………………………. 463-1332

Amoriss Mallett . . . . . . . . . . . . . . . . . . . . . . Executive Assistant………………………. 463-1332

Kelly Canavan . . . . . . . . . . . . . . . . . . . . . . . Staff Attorney………………………………. 463-1332

John P. Devine . . . . . . . . . . . . . . . . . . . . . Justice……………………………………………….. 463-1316

Suzie Sweetland . . . . . . . . . . . . . . . . . . . . . . Executive Assistant………………………. 463-1316

Chuck Lord . . . . . . . . . . . . . . . . . . . . . . . . .  Staff Attorney………………………………. 463-1316

James (Jimmy) D. Blacklock . . . . . . . . .  Justice………………………………………………. 463-1344

 

Cindy Carrillo . . . . . . . . . . . . . . . . . . . . . . .

Robert Brailas . . . . . . . . . . . . . . . . . . . . . . .

Executive Assistant………………………. 463-1344

Staff Attorney………………………………. 463-1344

Brett Busby . . . . . . . . . . . . . …………. Justice……………………………………… 462-1336

Georgie Gonzales . . . . . . . . . . . . . . . . . . . .  Executive Assistant………………………. 463-1336

Heather Holmes . . . . . . . . . . . . . . . . . . . . . . Staff Attorney………………………………. 463-1336

Jane Nenninger Bland . . . . . . . . . . . . . .   Justice………………………………………………. 463-3494

Darla Sadler . . . . . . . . . . . . . . . . . . . . . . . . . Executive Assistant………………………. 463-3494

Austin Kinghorn . . . . . . . . . . . . . . . . . . . . .  Staff Attorney………………………………. 463-3494

Nina Hess Hsu . . . . . . . . . . . . . . . . . . . . . General Counsel………………………………… 475-0938

Nadine Schneider . . . . . . . . . . . . . . . . . . . Administrative Assistant…………………….. 463-1317

Jaclyn Daumerie . . . . . . . . . . . . . . . . . . .  Rules Attorney…………………………………… 463-1353

Peter McGuire . . . . . . . . . . . . . . . . . . . . . Mandamus Attorney…………………………… 463-6645

Osler McCarthy . . . . . . . . . . . . . . . . . . . . Public Information Officer………………….. 463-1441

Blake A. Hawthorne . . . . . . . . . . . . . . . .  Clerk…………………………………………………… 463-1312

Claudia Jenks . . . . . . . . . . . . . . . . . . . . . . Chief Deputy Clerk…………………………….. 463-1312

3/24/2020

Federal cuts hit public defenders hard

Federal public defender says budget cuts actually ‘increasing spending’

Originally Published; July 21, 2020

The automatic federal budget cuts known as sequester, while painful to some, have a clear purpose: reduce the budget deficit and save money.

But try telling that to Marjorie Meyers, who helms Houston’s Federal Public Defender Office. Meyers throws her hands up when she talks about the budget cuts gutting her office because of the sequester.

“When the court can’t appoint us, they appoint private counsel, who cost more than we do,” Meyers said. “So it’s increasing spending instead of saving it.”

Much has been written about a variety of programs affected by the sequester such as federal aviation and the defense department. But little attention has been focused on the Federal Public Defender Office, the last line of defense for those charged with crimes by the U.S. government.

When indigent defendants wind up in federal court, taxpayers foot the bill for their attorneys, whether they are private lawyers who have been appointed or work in the public defender’s office.

The difference, Meyers said, is that it costs more to appoint lawyers, called “panel attorneys” because they are on a list mandated by the Criminal Justice Act.

On average, public defender offices can handle a case for about 71 percent of what panel attorneys are paid, according to the Defender Services, the division of the judicial branch that oversees more than 90 public defender offices across the country. Those offices have been dealt serious cuts and are facing more.

For Meyers’ office in Houston, the sequester cuts so far have meant the 108 staffers, which include 57 attorneys, are getting a 10 percent pay cut in the form of an unpaid furlough day every two weeks.

Conflict of interest

The cuts have some employees borrowing from their retirements to pay their bills or taking second jobs. Because of conflict-of-interest issues, the attorneys cannot work in a law-related field, so they moonlight with jobs that are generally less lucrative.

“One of my colleagues now has a part-time job in retail,” said Peter Bray, an assistant public defender.

Bray, who had a career as an engineer before following his passion to become a public defender, has stopped contributing to his retirement fund. He said other co-workers including investigators, paralegals and support staff are struggling more than he is.

“It doesn’t sound like a lot, but if you’re living with just 5 percent extra and you lose 10 percent, it’s pretty rough,” Bray said. “I know there’s people here that a 10 percent pay cut is just devastating. They just don’t have it.”

He also said some of the attorneys and staffers spend furlough days working without pay.

“The part of it that makes the least sense is that the hardship is being cast upon a lot of dedicated people and not one penny is being saved,” Bray said. “This is not the program to cut.”

But the cases continue coming in, many of which stem from arrests along the Mexico border. The local office, which has the highest caseload in the country, has satellite offices from Houston to Brownsville.

In the courtroom, their counterparts in the U.S. Attorney’s Office have yet to be furloughed or go through layoffs.

The prosecutors are part of the U.S. Department of Justice while the public defenders are funded through the judicial branch of the federal government.

The budget crunch hit both divisions, but the Justice Department has not cut salaries for the U.S. Attorney’s Offices across the country.

Morale-sapping

“The Department of Justice, the Attorney General, with the help of Congress, found enough money so that no employees had to be furloughed this year,” said Ken Magidson, the U.S. Attorney for the Southern District of Texas.

As Meyers prepares for additional cuts when the next fiscal year begins Oct. 1, she railed against the furloughs and layoffs hitting public defender offices as short-sighted, counter-intuitive and morale-sapping.

“Next year will be absolutely devastating if Congress or the judiciary doesn’t do something,” she said. “We’re looking at another 14 percent cut, which will mean 25 to 33 percent of our staff will have to go.”

According to the Defender Services, the 23 percent cut across the division expected in October will mean offices across the country will be closing and those that stay open will lay off between a third and half of their staff.

The agency is predicting a $100 million shortfall, about 10 percent of its total budget for public defenders, panel attorneys and administrative expenses.

While cuts to the public defenders office may mean more appointments for the attorneys on the panel, they are not a boon for private attorneys.

Vivian King, a defense attorney who is on the panel, said the courts sometimes do not pay the bills she submits, but the work is helpful for picking up clients.

“It’s like a hybrid of pro-bono and community service; it’s for building business,” King said.

More efficient

Nicole Deborde, another panel attorney with a successful private practice, said the public defender office is more efficient and cost-effective than panel attorneys because they have many lawyers working together in the courts everyday.

Like King, Deborde said the pay for panel attorneys is too low to build a practice.

“It’s the right thing to do from time to time, but it’s at a reduced rate,” Deborde said. “At some point, you just can’t run a law office and do, essentially, pro-bono work for the government.”

“The night before Carter was to testify against Graves, Carter told Sebesta that he had committed the murders alone. This statement necessarily excluded Graves as a participant in the murders. Sebesta never disclosed this information to the defense. This failure to disclose violated Disciplinary Rule 3.09(d).”

V. Conclusion
“The judgment of disbarment is affirmed.”

BEFORE THE BOARD OF DISCIPLINARY APPEALS APPOINTED BY THE SUPREME COURT OF TEXAS, No. 56406, CHARLES J. SEBESTA, JR. V. COMMISSION FOR LAWYER DISCIPLINE OF THE STATE BAR OF TEXAS, On Appeal from the Evidentiary Panel for the State Bar of Texas District 08-2 SBOT Case No. 201400539

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Below you will find references to areas of the Texas Government Code and Texas Rules that govern judicial and attorney conduct (LIT has excluded the judicial codes and rules here as this article is about attorney misconduct in Texas).

Texas Government Code, Chapter 81, Subchapter E

Texas Government Code, Chapter 82, Subchapter C

Chief Disciplinary Counsel’s Office (CDC)

Sec. 81.076. COMMISSION FOR LAWYER DISCIPLINE.

(a) The Commission for Lawyer Discipline shall review the structure, function, and effectiveness of the disciplinary and disability procedures implemented pursuant to this chapter and supreme court rules.

(b) The commission is a standing committee of the state bar. The commission is composed of 12 persons. Six members must be attorneys, and six members must not be attorneys. The president of the state bar appoints the attorney members. The supreme court appoints the public members. The public members may not have, other than as consumers, an interest, direct or indirect, in the practice of law or the profession of law. The supreme court may remove any member for good cause.

(c) Members serve staggered three-year terms with one-third of the members’ terms expiring each year.

(d) The president of the state bar shall designate an attorney member as chairperson of the commission who serves for one year.

(e) The commission shall report its findings annually to the supreme court and the board of directors and include any recommendations concerning needed changes in disciplinary or disability procedures or structures.

(f) All necessary and actual expenses of the commission shall be provided for and paid out of the budget of the state bar.

(g) The commission, with the advice and consent of the board of directors, shall select a chief disciplinary counsel to serve as administrator of the state bar’s grievance procedure as provided by the Texas Rules of Disciplinary Procedure. On request of an unauthorized practice of law committee or a grievance committee, the chief disciplinary counsel may investigate and prosecute suits to enjoin members, nonlicensees, and nonmembers of the state bar from the practice of law.

(h) The commission shall report to the board of directors, the supreme court, and the legislature, at least annually, concerning the state of the attorney discipline system and make recommendations concerning the refinement and improvement of the system. The commission’s report must provide data by race and gender and include:

(1) the number and final disposition of grievances filed, dismissed, and investigated under and the disciplinary decisions issued under the Texas Disciplinary Rules of Professional Conduct relating to barratry, including the improper solicitation of clients;

(2) the chief disciplinary counsel’s cooperation with local, state, or federal agencies in the investigation or prosecution of civil actions or criminal offenses related to barratry, including the number of grievances the chief disciplinary counsel referred to or received from a law enforcement agency;

(3) barriers to the investigation and prosecution of barratry-related criminal offenses or civil actions under existing criminal and civil laws or to enforcement under the Texas Disciplinary Rules of Professional Conduct; and

(4) recommendations for improving the attorney discipline system, the Texas Disciplinary Rules of Professional Conduct, or other state laws relating to barratry or improper solicitation of clients.

(i) The commission shall prepare a summary of the information included in the report under Subsection (h) and make information available to the public regarding barratry-related grievances, including the final disposition of the grievances, to the extent allowable under, and consistent with, confidentiality laws and rules.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 795, Sec. 21, eff. Sept. 1, 1991.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 8, eff. September 1, 2017.

SUBCHAPTER E. DISCIPLINE

Sec. 81.071. DISCIPLINARY JURISDICTION.

Each attorney admitted to practice in this state and each attorney specially admitted by a court of this state for a particular proceeding is subject to the disciplinary and disability jurisdiction of the supreme court and the Commission for Lawyer Discipline, a committee of the state bar.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 795, Sec. 19, eff. Sept. 1, 1991.

Sec. 81.072. GENERAL DISCIPLINARY AND DISABILITY PROCEDURES.

(a) In furtherance of the supreme court’s powers to supervise the conduct of attorneys, the court shall establish disciplinary and disability procedures in addition to the procedures provided by this subchapter.

(b) The supreme court shall establish minimum standards and procedures for the attorney disciplinary and disability system. The standards and procedures for processing grievances against attorneys must provide for:

(1) classification of all grievances and investigation of all complaints;

(2) a full explanation to each complainant on dismissal of an inquiry or a complaint;

(3) periodic preparation of abstracts of inquiries and complaints filed that, even if true, do or do not constitute misconduct;

(4) an information file for each grievance filed;

(5) a grievance tracking system to monitor processing of grievances by category, method of resolution, and length of time required for resolution;

(6) notice by the state bar to the parties of a written grievance filed with the state bar that the state bar has the authority to resolve of the status of the grievance, at least quarterly and until final disposition, unless the notice would jeopardize an undercover investigation;

(7) an option for a trial in a district court on a complaint and an administrative system for attorney disciplinary and disability findings in lieu of trials in district court, including an appeal procedure to the Board of Disciplinary Appeals and the supreme court under the substantial evidence rule;

(8) an administrative system for reciprocal and compulsory discipline;

(9) interim suspension of an attorney posing a threat of immediate irreparable harm to a client;

(10) authorizing all parties to an attorney disciplinary hearing, including the complainant, to be present at all hearings at which testimony is taken and requiring notice of those hearings to be given to the complainant not later than the seventh day before the date of the hearing;

(11) the commission adopting rules that govern the use of private reprimands by grievance committees and that prohibit a committee:

(A) giving an attorney more than one private reprimand within a five-year period for a violation of the same disciplinary rule; or

(B) giving a private reprimand for a violation:

(i) that involves a failure to return an unearned fee, a theft, or a misapplication of fiduciary property; or

(ii) of a disciplinary rule that requires a prosecutor to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, including Rule 3.09(d), Texas Disciplinary Rules of Professional Conduct; and

(12) distribution of a voluntary survey to all complainants urging views on grievance system experiences.

(b-1) In establishing minimum standards and procedures for the attorney disciplinary and disability system under Subsection (b), the supreme court must ensure that the statute of limitations applicable to a grievance filed against a prosecutor that alleges a violation of the disclosure rule does not begin to run until the date on which a wrongfully imprisoned person is released from a penal institution.

(b-2) For purposes of Subsection (b-1):

(1) “Disclosure rule” means the disciplinary rule that requires a prosecutor to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, including Rule 3.09(d), Texas Disciplinary Rules of Professional Conduct.

(2) “Penal institution” has the meaning assigned by Article 62.001, Code of Criminal Procedure.

(3) “Wrongfully imprisoned person” has the meaning assigned by Section 501.101.

(b-3) In establishing minimum standards and procedures for the attorney disciplinary and disability system under Subsection (b), the supreme court must ensure that an attorney has an opportunity to respond to all allegations of alleged misconduct.

(c) In addition to the minimum standards and procedures provided by this chapter, the supreme court, under Section 81.024 shall prepare, propose, and adopt rules it considers necessary for disciplining, suspending, disbarring, and accepting resignations of attorneys.

(d) Each attorney is subject to the Texas Rules of Disciplinary Procedure and the Texas Disciplinary Rules of Professional Conduct.

(e) The state bar shall establish a voluntary mediation and dispute resolution procedure to:

(1) attempt to resolve each minor grievance referred to the voluntary mediation and dispute resolution procedure by the chief disciplinary counsel; and

(2) facilitate coordination with other programs administered by the state bar to address and attempt to resolve inquiries and complaints referred to the voluntary mediation and dispute resolution procedure.

(e-1) All types of information, proceedings, hearing transcripts, and statements presented during the voluntary mediation and dispute resolution procedure established under Subsection (e) are confidential to the same extent the information, proceedings, transcripts, or statements would be confidential if presented to a panel of a district grievance committee.

(f) Responses to the survey provided for in Subsection (b)(12) may not identify either the complainant or attorney and shall be open to the public. The topics must include:

(1) treatment by the grievance system staff and volunteers;

(2) the fairness of grievance procedures;

(3) the length of time for grievance processing;

(4) disposition of the grievance; and

(5) suggestions for improvement of the grievance system.

(g) A person may not maintain an action against a complainant or witness in a disciplinary proceeding based on a communication made by the complainant or witness to the commission, a grievance committee, or the chief disciplinary counsel. The immunity granted by this subsection is absolute and unqualified.

(h) The state bar or a court may not require an attorney against whom a disciplinary action has been brought to disclose information protected by the attorney-client privilege if the client did not initiate the grievance that is the subject of the action.

(i) A panel of a district grievance committee of the state bar that votes on a grievance matter shall disclose to the complainant and the respondent in the matter the number of members of the panel:

(1) voting for a finding of just cause;

(2) voting against a finding of just cause; and

(3) abstaining from voting on the matter.

(j) A quorum of a panel of a district grievance committee of the state bar must include one public member for each two attorney members.

(k) A member of a panel of a district grievance committee of the state bar may vote on a grievance matter to which the panel was assigned only if the member is present at the hearing at which the vote takes place.

(l) A person may be appointed to serve on a panel of a district grievance committee of the state bar only if the person is a member of the district grievance committee from which the panel was assigned and the person was appointed to serve on the committee in strict accordance with the Texas Rules of Disciplinary Procedure.

(m) A panel of a district grievance committee of the state bar may not be changed in size for the purpose of obtaining a quorum on the panel without the approval of the complainant and the respondent in the grievance matter to which the panel was assigned.

(n) A member of a panel of a district grievance committee of the state bar may not be substituted with another member of the district grievance committee on the day of the hearing for which the panel was assigned without the approval of the complainant and the respondent in the grievance matter.

(o) Whenever a grievance is either dismissed as an inquiry or dismissed as a complaint in accordance with the Texas Rules of Disciplinary Procedure and that dismissal has become final, the respondent attorney may thereafter deny that a grievance was pursued and may file a motion with the tribunal seeking expunction of all records on the matter, other than statistical or identifying information maintained by the chief disciplinary counsel pertaining to the grievance.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 795, Sec. 20, eff. Sept. 1, 1991; Acts 2001, 77th Leg., ch. 1436, Sec. 1, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 227, Sec. 15, 16, eff. Sept. 1, 2003.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 450 (S.B. 825), Sec. 1, eff. September 1, 2013.

Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 7, eff. September 1, 2017.

Sec. 81.073. CLASSIFICATION OF GRIEVANCES.

(a) The chief disciplinary counsel’s office shall classify each grievance on receipt as:

(1) a complaint, if the grievance alleges conduct that, if true, constitutes professional misconduct or disability cognizable under the Texas Disciplinary Rules of Professional Conduct; or

(2) an inquiry, if:

(A) the grievance alleges conduct that, even if true, does not constitute professional misconduct or disability cognizable under the Texas Disciplinary Rules of Professional Conduct; or

(B) the respondent attorney is deceased, has relinquished the attorney’s license to practice law in this state to avoid disciplinary action, or is not licensed to practice law in this state.

(b) A complainant may appeal the classification of a grievance as an inquiry to the Board of Disciplinary Appeals, or the complainant may amend and resubmit the grievance. An attorney against whom a grievance is filed may not appeal the classification of the grievance.

Added by Acts 2003, 78th Leg., ch. 227, Sec. 17, eff. Sept. 1, 2003.

Sec. 81.074. DISPOSITION OF INQUIRIES.

The chief disciplinary counsel shall:

(1) dismiss a grievance classified as an inquiry; and

(2) refer each inquiry classified under Section 81.073(a)(2)(A) and dismissed under this section to the voluntary mediation and dispute resolution procedure established under Section 81.072(e).

Added by Acts 2003, 78th Leg., ch. 227, Sec. 17, eff. Sept. 1, 2003.

Sec. 81.075. DISPOSITION OF COMPLAINTS.

(a) The chief disciplinary counsel shall review and investigate each grievance classified as a complaint to determine whether there is just cause, as defined by the Texas Rules of Disciplinary Procedure.

(b) After the chief disciplinary counsel reviews and investigates a complaint:

(1) if the counsel finds there is no just cause, the counsel shall place the complaint on a dismissal docket; or

(2) if the counsel finds just cause:

(A) the respondent attorney may request a trial in a district court on the complaint in accordance with the procedures adopted by the supreme court; or

(B) the counsel shall place the complaint on a hearing docket if the respondent attorney does not request a trial in a district court.

(c) A panel of a district grievance committee shall consider each complaint placed on the dismissal docket at a closed hearing without the complainant or the respondent attorney present. The panel may:

(1) approve the dismissal of the complaint and refer the complaint to the voluntary mediation and dispute resolution procedure established under Section 81.072(e); or

(2) deny the dismissal of the complaint and place the complaint on a hearing docket.

(d) A panel of a district grievance committee shall conduct a hearing on each complaint placed on the hearing docket. The commission and the respondent attorney are parties to the hearing, and the chief disciplinary counsel presents the complainant’s case at the hearing. Each party may seek and the panel may issue a subpoena to compel attendance and production of records before the panel. Each party may conduct limited discovery in general accordance with the Texas Rules of Civil Procedure as prescribed by rules of the supreme court.

(e) After conducting a hearing under Subsection (d), the panel of the district grievance committee may:

(1) dismiss the complaint and refer it to the voluntary mediation and dispute resolution procedure established under Section 81.072(e);

(2) find that the respondent attorney suffers from a disability and forward that finding to the Board of Disciplinary Appeals for referral to a district disability committee; or

(3) find that professional misconduct occurred and impose sanctions.

Added by Acts 2003, 78th Leg., ch. 227, Sec. 17, eff. Sept. 1, 2003.

Sec. 81.0751. APPEALS.

(a) The commission or a respondent attorney may appeal:

(1) a finding of a panel of a district grievance committee under Section 81.075(e) only to the Board of Disciplinary Appeals;

(2) a finding of the Board of Disciplinary Appeals to the supreme court; and

(3) a judgment of a district court as in civil cases generally.

(b) In an appeal of a finding of a panel of a district grievance committee made to the Board of Disciplinary Appeals, the board may:

(1) affirm in whole or part the panel’s finding;

(2) modify the panel’s finding and affirm the finding as modified;

(3) reverse in whole or part the panel’s finding and enter a finding the board determines the panel should have entered; or

(4) reverse the panel’s finding and remand the complaint for a rehearing to be conducted by:

(A) the panel that entered the finding; or

(B) a statewide grievance committee panel composed of members selected from the state bar districts other than the district from which the appeal was taken.

Added by Acts 2003, 78th Leg., ch. 227, Sec. 17, eff. Sept. 1, 2003.

Sec. 81.0752. CONFIDENTIALITY.

(a) All types of information, proceedings, hearing transcripts, and statements presented to a panel of a district grievance committee are confidential and may not be disclosed to any person other than the chief disciplinary counsel unless:

(1) disclosure is ordered by a court; or

(2) the panel finds that professional misconduct occurred and a sanction other than a private reprimand is imposed against the respondent attorney.

(b) If the requirements of Subsection (a)(2) are met, the panel of the district grievance committee shall, on request, make the information, proceedings, hearing transcripts, or statements available to the public.

Added by Acts 2003, 78th Leg., ch. 227, Sec. 17, eff. Sept. 1, 2003.

Sec. 81.0753. RULES REGARDING GRIEVANCES.

The supreme court shall promulgate rules regarding the classification and disposition of grievances, including rules specifying time limits for each stage of the grievance resolution process.

Added by Acts 2003, 78th Leg., ch. 227, Sec. 17, eff. Sept. 1, 2003.

Sec. 81.076. COMMISSION FOR LAWYER DISCIPLINE.

(a) The Commission for Lawyer Discipline shall review the structure, function, and effectiveness of the disciplinary and disability procedures implemented pursuant to this chapter and supreme court rules.

(b) The commission is a standing committee of the state bar. The commission is composed of 12 persons. Six members must be attorneys, and six members must not be attorneys. The president of the state bar appoints the attorney members. The supreme court appoints the public members. The public members may not have, other than as consumers, an interest, direct or indirect, in the practice of law or the profession of law. The supreme court may remove any member for good cause.

(c) Members serve staggered three-year terms with one-third of the members’ terms expiring each year.

(d) The president of the state bar shall designate an attorney member as chairperson of the commission who serves for one year.

(e) The commission shall report its findings annually to the supreme court and the board of directors and include any recommendations concerning needed changes in disciplinary or disability procedures or structures.

(f) All necessary and actual expenses of the commission shall be provided for and paid out of the budget of the state bar.

(g) The commission, with the advice and consent of the board of directors, shall select a chief disciplinary counsel to serve as administrator of the state bar’s grievance procedure as provided by the Texas Rules of Disciplinary Procedure. On request of an unauthorized practice of law committee or a grievance committee, the chief disciplinary counsel may investigate and prosecute suits to enjoin members, nonlicensees, and nonmembers of the state bar from the practice of law.

(h) The commission shall report to the board of directors, the supreme court, and the legislature, at least annually, concerning the state of the attorney discipline system and make recommendations concerning the refinement and improvement of the system. The commission’s report must provide data by race and gender and include:

(1) the number and final disposition of grievances filed, dismissed, and investigated under and the disciplinary decisions issued under the Texas Disciplinary Rules of Professional Conduct relating to barratry, including the improper solicitation of clients;

(2) the chief disciplinary counsel’s cooperation with local, state, or federal agencies in the investigation or prosecution of civil actions or criminal offenses related to barratry, including the number of grievances the chief disciplinary counsel referred to or received from a law enforcement agency;

(3) barriers to the investigation and prosecution of barratry-related criminal offenses or civil actions under existing criminal and civil laws or to enforcement under the Texas Disciplinary Rules of Professional Conduct; and

(4) recommendations for improving the attorney discipline system, the Texas Disciplinary Rules of Professional Conduct, or other state laws relating to barratry or improper solicitation of clients.

(i) The commission shall prepare a summary of the information included in the report under Subsection (h) and make information available to the public regarding barratry-related grievances, including the final disposition of the grievances, to the extent allowable under, and consistent with, confidentiality laws and rules.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 795, Sec. 21, eff. Sept. 1, 1991.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 8, eff. September 1, 2017.

Sec. 81.077. DISBARMENT PROCEEDINGS.

(a) The supreme court may not adopt or promulgate any rule abrogating the right of trial by jury of an accused attorney in a disbarment action in the county of the residence of the accused attorney.

(b) A disbarment proceeding against a resident attorney shall be instituted in a district court in the county of the attorney’s residence, but the accused attorney may apply for change of venue under Rule 257, Texas Rules of Civil Procedure.

(c) This chapter does not prohibit a grievance committee from investigating a complaint of professional misconduct alleged to have occurred in the geographical area served by the committee, but any action must be filed in the county of the attorney’s residence.

(d) Venue in a disbarment proceeding against a nonresident member of the state bar is in a district court either in Travis County or in any county where the alleged misconduct occurred.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 795, Sec. 22, eff. Sept. 1, 1991.

Sec. 81.078. DISCIPLINARY PROCEEDINGS.

(a) Except as provided by Subsection (b), until an attorney has been convicted of the charges for disbarment pending against the attorney in a court of competent jurisdiction, the attorney may be suspended from the practice of law only if the attorney concurs in an order of suspension entered by the grievance committee.

(b) On proof of an attorney’s conviction in a trial court of competent jurisdiction of any felony involving moral turpitude or of any misdemeanor involving the theft, embezzlement, or fraudulent misappropriation of money or other property, the district court of the county of the residence of the convicted attorney shall enter an order suspending the attorney from the practice of law during the pendency of any appeals from the conviction. An attorney who has been given probation after the conviction, whether adjudicated or unadjudicated, shall be suspended from the practice of law during the probation.

(c) On proof of final conviction of any felony involving moral turpitude or any misdemeanor involving theft, embezzlement, or fraudulent misappropriation of money or other property, the district court of the county of the residence of the convicted attorney shall enter an order disbarring the attorney.

(d) In an action to disbar any attorney for acts made the basis of a conviction for a felony involving moral turpitude or a misdemeanor involving theft, embezzlement, or fraudulent misappropriation of money or other property, the record of conviction is conclusive evidence of the guilt of the attorney for the crime of which he was convicted.

(e) Either the grievance committee for the bar district or the general counsel may seek enforcement of this section.

(f) This chapter does not prevent prosecution of an attorney in a disciplinary action after conviction for a criminal act based either on the weight of the conviction or on conduct by the attorney that led to the attorney’s conviction.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987.

Sec. 81.079. PUBLIC NOTIFICATION AND INFORMATION.

(a) To provide information to the public relating to the attorney grievance process, the state bar shall:

(1) develop a brochure written in Spanish and English describing the bar’s grievance process;

(2) establish a toll-free “800” telephone number for public access to the chief disciplinary counsel’s office in Austin and list the number in telephone directories statewide;

(3) describe the bar’s grievance process in the bar’s telephone directory listings statewide; and

(4) make grievance forms written in Spanish and English available in each county courthouse.

(b) Each attorney practicing law in this state shall provide notice to each of the attorney’s clients of the existence of a grievance process by:

(1) making grievance brochures prepared by the state bar available at the attorney’s place of business;

(2) posting a sign prominently displayed in the attorney’s place of business describing the process;

(3) including the information on a written contract for services with the client; or

(4) providing the information in a bill for services to the client.

Added by Acts 1991, 72nd Leg., ch. 795, Sec. 23, eff. Sept. 1, 1991. Amended by Acts 2003, 78th Leg., ch. 227, Sec. 18, eff. Sept. 1, 2003.

Sec. 81.080. ISSUANCE OF SUBPOENA; OBJECTION.

(a) On approval of the presiding officer of the appropriate district grievance committee, the chief disciplinary counsel may, during an investigation of a grievance, issue a subpoena that relates directly to a specific allegation of attorney misconduct.

(b) The chief disciplinary counsel shall provide a process for a respondent to object to a subpoena issued under this section.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 9, eff. September 1, 2017.

Sec. 81.081. ATTORNEY SELF-REPORTING.

The chief disciplinary counsel shall develop guidelines and a procedure for an attorney to self-report:

(1) any criminal offense committed by the attorney; and

(2) any disciplinary action taken by another state’s bar against the attorney.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 9, eff. September 1, 2017.

Sec. 81.082. PROCESS TO IDENTIFY COMPLAINTS SUITABLE FOR SETTLEMENT OR INVESTIGATORY HEARING.

(a) The chief disciplinary counsel shall develop a process to identify a complaint that is appropriate for a settlement attempt or an investigatory hearing before a trial is requested or the complaint is placed on a hearing docket.

(b) The chief disciplinary counsel may authorize a settlement at any time during the disciplinary process.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 9, eff. September 1, 2017.

Sec. 81.083. SANCTION GUIDELINES.

(a) The chief disciplinary counsel shall propose and the supreme court shall adopt by rule sanction guidelines to:

(1) associate a specific rule violation or ethical misconduct with a range of appropriate sanctions;

(2) provide aggravating and mitigating factors that justify deviating from the established sanctions; and

(3) provide consistency between complaints heard by a district grievance committee and complaints heard by a district court.

(b) The chief disciplinary counsel shall ensure that interested parties are provided an opportunity to comment on the proposed sanction guidelines.

(c) The sanction guidelines adopted under this section do not limit the authority of a district grievance committee or of a district judge to make a finding or issue a decision.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 9, eff. September 1, 2017.

Sec. 81.084. GRIEVANCE TRACKING SYSTEM.

(a) The chief disciplinary counsel shall create and maintain a grievance tracking system for grievances filed and disciplinary decisions issued under this subchapter.

(b) The grievance tracking system must:

(1) associate each rule violation or instance of ethical misconduct with the sanction imposed or final action taken for the violation or misconduct in a diversionary procedure adopted under state bar rules;

(2) address whether a sanction decision aligns with the sanction guidelines adopted under Section 81.083;

(3) specify the district grievance committee or district judge that imposed the sanction to evaluate sanction patterns within the disciplinary districts and facilitate training for district grievance committee members; and

(4) include sufficient information to evaluate and track disciplinary trends over time.

(c) The chief disciplinary counsel shall:

(1) periodically evaluate and report information gathered in the grievance tracking system to the commission and district grievance committee members; and

(2) post the information reported under Subdivision (1) on the state bar’s Internet website.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 9, eff. September 1, 2017.

Sec. 81.085. REGULAR SEARCH OF NATIONAL LAWYER REGULATORY DATA BANK.

The chief disciplinary counsel shall establish a process to regularly search the National Lawyer Regulatory Data Bank maintained by the American Bar Association to identify a member of the state bar who is disciplined in another state.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 9, eff. September 1, 2017.

Sec. 81.086. TELECONFERENCE.

The chief disciplinary counsel may hold investigatory and disciplinary hearings by teleconference.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 9, eff. September 1, 2017.

SUBCHAPTER E-1. COMMITTEE ON DISCIPLINARY RULES AND REFERENDA; DISCIPLINARY RULE PROPOSAL PROCESS

Sec. 81.0871. DEFINITION.

In this subchapter, “committee” means the Committee on Disciplinary Rules and Referenda.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

Sec. 81.0872. ESTABLISHMENT OF COMMITTEE.

(a) The committee consists of nine members, including:

(1) three attorneys appointed by the president of the state bar;

(2) one nonattorney public member appointed by the president of the state bar;

(3) four attorneys appointed by the supreme court; and

(4) one nonattorney public member appointed by the supreme court.

(b) The president of the state bar and the chief justice of the supreme court shall alternate designating an attorney member of the committee to serve as the presiding officer of the committee for a term of one year.

(c) Committee members serve staggered three-year terms, with one-third of the members’ terms expiring each year.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

Sec. 81.0873. COMMITTEE DUTIES.

The committee shall:

(1) regularly review the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure;

(2) at least annually issue to the supreme court and the board of directors a report on the adequacy of the rules reviewed under Subdivision (1); and

(3) oversee the initial process for proposing a disciplinary rule under Section 81.0875.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

Sec. 81.0874. STAFF ATTORNEY.

The state bar may hire a staff attorney to assist the committee.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

Sec. 81.0875. INITIATION OF RULE PROPOSAL PROCESS.

(a) The committee may initiate the process for proposing a disciplinary rule for the state bar as the committee considers necessary or in conjunction with the review of the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure under Section 81.0873(1).

(b) Not later than the 60th day after the date the committee receives a request to initiate the process for proposing a disciplinary rule, the committee shall:

(1) initiate the process; or

(2) issue a written decision declining to initiate the process and the reasons for declining.

(c) A request to initiate the process for proposing a disciplinary rule under Subsection (b) may be made by:

(1) a resolution of the board of directors;

(2) a request of the supreme court;

(3) a request of the commission;

(4) a petition signed by at least 10 percent of the registered members of the state bar;

(5) a concurrent resolution of the legislature; or

(6) a petition signed by at least 20,000 people, of which at least 51 percent, or 10,200 or more, must be residents of this state.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

Sec. 81.0876. RULE PROPOSAL.

(a) On initiation of the process for proposing a disciplinary rule, the committee shall:

(1) study the issue to be addressed by the proposed rule;

(2) hold a public hearing on the issue;

(3) draft the proposed rule, which may not address more than one subject; and

(4) make all reasonable efforts to solicit comments from different geographic regions in this state, nonattorney members of the public, and members of the state bar.

(b) A proposed disciplinary rule is withdrawn six months after the date the rule proposal process is initiated under Section 81.0875(b)(1) if the proposed disciplinary rule is not published on or before that date in:

(1) the Texas Register; and

(2) the Texas Bar Journal.

(c) The committee shall give interested parties at least 30 days from the date the proposed disciplinary rule is published as required under Subsection (b) to submit comments on the rule to the committee.

(d) The committee shall hold a public hearing on the proposed disciplinary rule if, during the comment period described by Subsection (c), the hearing is requested by:

(1) at least 25 people;

(2) a state agency or political subdivision of this state; or

(3) an association with at least 25 members.

(e) On conclusion of the comment period described by Subsection (c), the committee may amend the proposed disciplinary rule in response to the comments.

(f) The committee shall vote on whether to recommend a proposed disciplinary rule to the board of directors not later than the 60th day after the final day of the comment period described by Subsection (c). The committee may not recommend a proposed disciplinary rule unless at least five members of the committee favor recommendation.

(g) The committee shall submit a proposed disciplinary rule that is recommended by the committee to the board of directors for review and consideration.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

Sec. 81.0877. APPROVAL OF PROPOSED DISCIPLINARY RULE BY BOARD OF DIRECTORS.

(a) The board of directors shall vote on each proposed disciplinary rule recommended by the committee not later than the 120th day after the date the rule is received from the committee. The board shall vote for or against the rule or return the rule to the committee for additional consideration.

(b) If a proposed disciplinary rule is approved by a majority of the directors, the board of directors shall petition the supreme court to order a referendum as provided by Section 81.0878 on the rule by the members of the state bar.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

Sec. 81.0878. REFERENDUM VOTE BY STATE BAR MEMBERS.

(a) On receipt of a petition filed by the board of directors under Section 81.0877(b), the supreme court shall:

(1) distribute a copy of the rule in ballot form to each member of the state bar and order a vote on the rule; and

(2) publish the rule in:

(A) the Texas Register; and

(B) the Texas Bar Journal.

(b) The supreme court shall give state bar members:

(1) at least 30 days to consider a proposed disciplinary rule before voting begins; and

(2) 30 days to vote on the proposed disciplinary rule following the period for considering the proposed rule under Subdivision (1).

(c) The state bar shall provide proponents and opponents of a proposed disciplinary rule an equal opportunity to present their views at any bar-sponsored forum at which the rule referendum is discussed.

(d) One or more proposed disciplinary rules may appear on a single referendum ballot. State bar members shall vote for or against each rule. If a majority of the members who vote on the proposed rule vote in favor of the rule, the rule is approved by the members of the state bar.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

Sec. 81.0879. SUPREME COURT APPROVAL OR REJECTION.

The supreme court by majority vote may approve or reject a proposed disciplinary rule in its entirety, but may not approve or reject only part of the rule. If the supreme court does not vote on the rule on or before the 120th day after the date the rule is approved by bar members under Section 81.0878, the rule is considered approved by the supreme court.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

Sec. 81.08791. RULE DELIBERATIONS.

(a) The committee, the board of directors, or the supreme court shall provide notice of any deliberation on a proposed disciplinary rule, and the deliberation must be open to the public.

(b) The board of directors and the supreme court shall record and make public each vote for or against a proposed disciplinary rule.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

Sec. 81.08792. PROPOSED DISCIPLINARY RULE APPROVAL REQUIRED BEFORE ADOPTION.

A proposed disciplinary rule may not be adopted by the supreme court unless the rule is approved by:

(1) the committee;

(2) the board of directors;

(3) the members of the state bar; and

(4) the supreme court.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

Sec. 81.08793. USE OF TECHNOLOGY.

The supreme court, the committee, and the state bar shall use technological solutions throughout the disciplinary rule proposal process to promote:

(1) financial efficiency; and

(2) comments from interested persons.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

Sec. 81.08794. EXPIRED TIME AND DEFEATED RULE PROPOSAL.

(a) If a time limit provided by this subchapter expires or a disciplinary rule proposal is otherwise defeated, the process for initiating the proposed disciplinary rule may again be initiated in accordance with this subchapter.

(b) For good cause shown, the supreme court may grant a petition to extend any time limit provided by this subchapter until a date that is not later than the 90th day after the original deadline.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

SUBCHAPTER E-2. OMBUDSMAN FOR ATTORNEY DISCIPLINE SYSTEM

Sec. 81.0881. DEFINITIONS.

In this subchapter:

(1) “Ombudsman” means the ombudsman for the attorney discipline system of the state bar.

(2) “System” means the attorney discipline system of the state bar.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

Sec. 81.0882. OMBUDSMAN FOR ATTORNEY DISCIPLINE SYSTEM.

(a) The state bar shall fund one full-time equivalent position of ombudsman for the attorney discipline system.

(b) The ombudsman is selected by the members of the supreme court and is independent of the state bar, the board of directors, the commission, and the chief disciplinary counsel.

(c) The ombudsman shall report directly to the supreme court.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

Sec. 81.0883. POWERS AND DUTIES OF OMBUDSMAN.

(a) The ombudsman shall:

(1) review grievances to determine whether the state bar followed the proper grievance procedures;

(2) receive complaints about the system;

(3) receive and investigate complaints on violations of the system’s procedural rules;

(4) answer questions from the public on the system’s operation, accessing the system, and the availability of other state bar programs;

(5) assist members of the public wishing to submit a lawyer grievance by explaining the information required and the methods for submitting the information; and

(6) at least annually, make recommendations to the board of directors and the supreme court for improvements to the system, including ways to improve access to the system and changes to the grievance form.

(b) The ombudsman may not:

(1) draft a complaint for a member of the public;

(2) act as an advocate for a member of the public;

(3) reverse or modify a finding or judgment in any disciplinary proceeding; or

(4) intervene in any disciplinary matter.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

Sec. 81.0884. ACCESS TO INFORMATION.

The chief disciplinary counsel, a district grievance committee, the board of directors, the commission, and state bar members shall share with the ombudsman requested information that is necessary to:

(1) determine whether the state bar followed procedural rules related to a particular grievance; or

(2) evaluate the system’s efficacy and adequacy.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

Sec. 81.0885. CONFIDENTIAL INFORMATION; PRIVILEGED COMMUNICATIONS.

(a) All types of information, proceedings, hearing transcripts, and statements presented to the ombudsman are confidential and may not be disclosed to any person other than the chief disciplinary counsel unless disclosure is ordered by a court.

(b) The ombudsman may not access privileged communications and information shared between the chief disciplinary counsel and the commission.

Added by Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 10, eff. September 1, 2017.

SUBCHAPTER F. COMMITTEE ON PROFESSIONAL ETHICS

Sec. 81.091. COMMITTEE ON PROFESSIONAL ETHICS.

(a) The professional ethics committee consists of nine members of the state bar appointed by the supreme court.

(b) Members serve three-year terms with the terms of three members expiring each year.

(c) The supreme court shall designate a chairperson of the committee who serves for one year.

(d) This chapter does not prohibit the supreme court from appointing members of the judicial department to the committee.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987.

Sec. 81.092. COMMITTEE OPINIONS.

(a) The committee shall, either on its own initiative or when requested to do so by a member of the state bar, express its opinion on the propriety of professional conduct other than on a question pending before a court of this state.

(b) Except as provided by Section 81.093, an opinion requires the concurrence of a quorum of the committee members.

(c) Committee opinions are not binding on the supreme court.

(d) As far as possible, the committee must disclose the rationale for its opinion and shall indicate whether it is based on ethical consideration or on disciplinary rules.

(e) The committee shall adopt rules it considers appropriate relating to the procedures to be used in expressing opinions. Rules adopted under this subsection take effect when approved by the supreme court.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987.

Sec. 81.093. PANELS.

The committee may meet in three-member panels to express its opinion on behalf of the whole committee, but an inquirer who is dissatisfied with the panel’s opinion may appeal it to the full committee for review.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987.

Sec. 81.094. CERTAIN COMMITTEE DUTIES.

The committee shall:

(1) periodically publish its issued opinions to the legal profession in summary or complete form;

(2) on request provide copies of its issued opinions to members of the state bar or the public;

(3) on request advise or otherwise assist state bar committees or local bar associations relating to the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure; and

(4) recommend appropriate amendments or clarifications of the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure that it considers advisable.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 795, Sec. 24, eff. Sept. 1, 1991.

Sec. 81.095. EXPENSES.

The state bar shall pay all necessary and actual expenses of the committee out of the state bar budget.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987.

SUBCHAPTER G. UNAUTHORIZED PRACTICE OF LAW

Sec. 81.101. DEFINITION.

(a) In this chapter the “practice of law” means the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.

(b) The definition in this section is not exclusive and does not deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law.

(c) In this chapter, the “practice of law” does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney. This subsection does not authorize the use of the products or similar media in violation of Chapter 83 and does not affect the applicability or enforceability of that chapter.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987. Amended by Acts 1999, 76th Leg., ch. 799, Sec. 1, eff. June 18, 1999.

Sec. 81.1011. EXCEPTION FOR CERTAIN LEGAL ASSISTANCE.

(a) Notwithstanding Section 81.101(a), the “practice of law” does not include technical advice, consultation, and document completion assistance provided by an employee or volunteer of an area agency on aging affiliated with the Health and Human Services Commission who meets the requirements of Subsection (b) if that advice, consultation, and assistance relates to:

(1) a medical power of attorney or other advance directive under Chapter 166, Health and Safety Code; or

(2) a designation of guardian before need arises under Section 1104.202, Estates Code.

(b) An employee or volunteer described by Subsection (a) must:

(1) provide benefits counseling through an area agency on aging system of access and assistance to agency clients;

(2) comply with rules adopted by the Texas Department on Aging regarding qualifications, training requirements, and other requirements for providing benefits counseling services, including legal assistance and legal awareness services;

(3) have received specific training in providing the technical advice, consultation, and assistance described by Subsection (a); and

(4) be certified by the Texas Department on Aging as having met the requirements of this subsection.

(c) The Texas Department on Aging by rule shall develop certification procedures by which the department certifies that an employee or volunteer described by Subsection (a) has met the requirements of Subsections (b)(1), (2), and (3).

Added by Acts 2001, 77th Leg., ch. 845, Sec. 1, eff. Sept. 1, 2001.

Amended by:

Acts 2019, 86th Leg., R.S., Ch. 846 (H.B. 2780), Sec. 6, eff. September 1, 2019.

Sec. 81.102. STATE BAR MEMBERSHIP REQUIRED.

(a) Except as provided by Subsection (b), a person may not practice law in this state unless the person is a member of the state bar.

(b) The supreme court may promulgate rules prescribing the procedure for limited practice of law by:

(1) attorneys licensed in another jurisdiction;

(2) bona fide law students; and

(3) unlicensed graduate students who are attending or have attended a law school approved by the supreme court.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987.

Sec. 81.103. UNAUTHORIZED PRACTICE OF LAW COMMITTEE.

(a) The unauthorized practice of law committee is composed of nine persons appointed by the supreme court.

(b) At least three of the committee members must be nonattorneys.

(c) Committee members serve for staggered terms of three years with three members’ terms expiring each year.

(d) A committee member may be reappointed.

(e) Each year the supreme court shall designate a committee member to serve as chairperson.

(f) All necessary and actual expenses of the committee should be provided for and paid out of the budget of the state bar.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 795, Sec. 25, eff. Sept. 1, 1991.

Sec. 81.104. DUTIES OF UNAUTHORIZED PRACTICE OF LAW COMMITTEE.

The unauthorized practice of law committee shall:

(1) keep the supreme court and the state bar informed with respect to:

(A) the unauthorized practice of law by lay persons and lay agencies and the participation of attorneys in that unauthorized practice of law; and

(B) methods for the prevention of the unauthorized practice of law; and

(2) seek the elimination of the unauthorized practice of law by appropriate actions and methods, including the filing of suits in the name of the committee.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987.

Sec. 81.105. LOCAL COMMITTEES.

This chapter does not prohibit the establishment of local unauthorized practice of law committees to assist the unauthorized practice of law committee in carrying out its purposes.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987.

Sec. 81.106. IMMUNITY.

(a) The unauthorized practice of law committee, any member of the committee, or any person to whom the committee has delegated authority and who is assisting the committee is not liable for any damages for an act or omission in the course of the official duties of the committee.

(b) A complainant or a witness in a proceeding before the committee or before a person to whom the committee has delegated authority and who is assisting the committee has the same immunity that a complainant or witness has in a judicial proceeding.

Added by Acts 1991, 72nd Leg., ch. 795, Sec. 26, eff. Sept. 1, 1991.

SUBCHAPTER H. MISCELLANEOUS PROVISIONS

Sec. 81.112. FEE DISPUTE RESOLUTION PROCEDURE.

The state bar shall establish a standard fee dispute resolution procedure that may be used by a bar committee or other organization as a model for a fee dispute resolution program.

Added by Acts 1991, 72nd Leg., ch. 795, Sec. 28, eff. Sept. 1, 1991.

Sec. 81.113. CONTINUING LEGAL EDUCATION.

(a) Except as provided by Subsection (b), the state bar shall credit an attorney licensed in this state with meeting the minimum continuing legal education requirements of the state bar for a reporting year if during the reporting year the attorney is employed full-time as an attorney by:

(1) the senate;

(2) the house of representatives;

(3) a committee, division, department, or office of the senate or house;

(4) the Texas Legislative Council;

(5) the Legislative Budget Board;

(6) the Legislative Reference Library;

(7) the office of the state auditor; or

(8) the Sunset Advisory Commission.

(b) An attorney credited for continuing legal education under Subsection (a) must meet the continuing legal education requirements of the state bar in legal ethics or professional responsibility.

(c) The state bar shall recognize, prepare, or administer continuing education programs for members of the state bar. A member of the state bar must participate in the programs to the extent required by the supreme court to maintain the person’s state bar membership.

Added by Acts 1991, 72nd Leg., ch. 795, Sec. 29, eff. Sept. 1, 1991. Amended by Acts 2003, 78th Leg., ch. 227, Sec. 19, eff. Sept. 1, 2003.

Amended by:

Acts 2011, 82nd Leg., 1st C.S., Ch. 4 (S.B. 1), Sec. 24.01, eff. September 28, 2011.

Sec. 81.114. ATTORNEY INSTRUCTION RELATED TO GUARDIANSHIP ISSUES.

(a) The state bar shall provide a course of instruction for attorneys who represent parties in guardianship cases or who serve as court-appointed guardians.

(b) The state bar shall adopt the rules necessary to accomplish the purposes of this section.

(c) The instruction must include information about:

(1) statutory and case law relating to guardianships;

(2) the aging process and the nature of disabilities;

(3) the requirements of the Americans with Disabilities Act (42 U.S.C. Section 12101 et seq.) and related case and statutory law, rules, and compliance methods;

(4) the principles of equal access and accommodation;

(5) the use of community resources for the disabled; and

(6) avoidance of stereotypes through a focus on people’s individual abilities, support needs, and inherent individual value.

(d) The instruction may include information about:

(1) substantive areas of law concerning the needs of elderly persons and persons with disabilities;

(2) barriers to physical access and methods to overcome those barriers;

(3) communication needs of elderly persons and persons with disabilities and the technology available to provide access to communication;

(4) duties and responsibilities of guardians, guardians ad litem, attorneys, and court personnel in guardianship proceedings;

(5) standard definitions and procedures for determining incapacity;

(6) standards for surrogate decision making;

(7) the doctrine of the least-restrictive alternative;

(8) the dispute resolution process, especially its application to elderly persons and persons with disabilities; and

(9) successful programs and funding efforts for addressing the court-related needs of elderly persons and persons with disabilities.

Added by Acts 1993, 73rd Leg., ch. 905, Sec. 3, eff. Sept. 1, 1993.

Sec. 81.115. ONLINE ATTORNEY PROFILES.

(a) The state bar shall create a profile of each attorney licensed by the state bar. The profile must:

(1) include the information required by Subsection (b);

(2) include the information described by Subsection (c) if that information is provided by the attorney to the state bar; and

(3) be compiled in a format that permits the state bar to make the information contained in the profile available online to the public.

(b) A profile must contain the following information on each attorney:

(1) the name of each law school attended and the date the attorney graduated;

(2) the date the attorney became licensed to practice law in this state;

(3) any specialty certification recognized by the state bar and held by the attorney;

(4) the attorney’s primary practice location;

(5) any public disciplinary sanctions issued by the state bar against the attorney, including a link on the attorney’s online profile to the full text of the disciplinary judgment entered by a district grievance committee or district judge; and

(6) any public disciplinary sanctions issued by an entity in another state responsible for attorney discipline in that state against the attorney.

(c) The profile must contain the following information on an attorney if the attorney provides the information to the state bar:

(1) other states in which the attorney is licensed to practice law;

(2) the courts before which the attorney has been admitted to practice law;

(3) whether the attorney provides any language translating services, including translating services for a person with impairment of hearing, at the attorney’s primary practice location; and

(4) whether the attorney’s client service areas are accessible to persons with disabilities, as defined by federal law.

(d) Information included under Subsection (b) or (c) that is not maintained by the state bar in the ordinary course of the state bar’s duties shall be requested from an attorney annually. In requesting information from the attorney, the state bar shall:

(1) inform the attorney that compliance with the request for information under Subsection (b) is mandatory;

(2) inform the attorney that compliance with the request for information under Subsection (c) is voluntary;

(3) inform the attorney of the date the information will be made available to the public; and

(4) instruct the attorney concerning the requirements under Subsection (f) for the attorney to obtain a copy of the attorney’s profile to make corrections.

(e) This section does not require the state bar to disclose confidential information.

(f) The state bar shall:

(1) annually provide to each attorney licensed by the state bar a copy of the attorney’s profile; or

(2) provide to an individual attorney a copy of the attorney’s profile on request. The state bar shall provide an attorney one month from the date a copy of the attorney’s profile is provided to the attorney to correct factual errors in the attorney’s profile.

(g) The state bar shall annually update the information contained in an attorney’s profile. The state bar shall adopt a form that allows an attorney to update information contained in the attorney’s profile. The form shall be made available on the Internet and in other formats as prescribed by rules adopted by the state bar. The state bar may adopt rules relating to the type and content of additional information that may be included in an attorney’s profile.

(h) For purposes of administering this section, the state bar may collect from each member of the state bar an annual fee of not more than $10.

(i) The state bar shall adopt rules as necessary to implement this section.

Added by Acts 2001, 77th Leg., ch. 862, Sec. 1, eff. Sept. 1, 2001.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 531 (S.B. 302), Sec. 11, eff. September 1, 2017.

SUBCHAPTER I. EXECUTIVE COMMITTEE

Sec. 81.121. EXECUTIVE COMMITTEE.

(a) The executive committee consists of:

(1) the president, the president-elect, and the immediate past president of the state bar;

(2) the chair of the board of directors;

(3) the president of the Texas Young Lawyers Association; and

(4) additional members appointed by the president of the state bar.

(b) The general counsel and executive director serve as ex officio members of the committee.

(c) The president of the state bar serves as chair of the committee. The chair of the board of directors serves as vice chair of the committee and presides over committee meetings in the committee chair’s absence.

Added by Acts 2003, 78th Leg., ch. 227, Sec. 20, eff. Sept. 1, 2003.

Sec. 81.122. DUTIES OF EXECUTIVE COMMITTEE.

The executive committee shall:

(1) on the recommendation of the president of the state bar, approve the creation of additional standing and special committees of the state bar in accordance with Section 81.123;

(2) conduct a comprehensive review of standing and special committees of the state bar at least biennially and more frequently as the executive committee determines necessary to assess whether there is:

(A) a continued need for each committee; and

(B) unnecessary overlap of the committees’ activities; and

(3) perform other duties as delegated by the board of directors.

Added by Acts 2003, 78th Leg., ch. 227, Sec. 20, eff. Sept. 1, 2003.

Sec. 81.123. APPROVAL OF COMMITTEES.

Before the executive committee may approve the creation of an additional standing or special committee of the state bar, the committee must:

(1) study and determine the fiscal impact creating the committee would have on the state bar budget; and

(2) poll the chair of each existing committee and conduct a review to determine whether the matter to be addressed by the proposed committee could be addressed by an existing committee.

Added by Acts 2003, 78th Leg., ch. 227, Sec. 20, eff. Sept. 1, 2003.

SUBCHAPTER J. DECEPTIVE ADVERTISING PRACTICES

Sec. 81.151. APPLICABILITY.

(a) This subchapter applies only to a television advertisement that promotes a person’s provision of legal services or solicits clients to receive legal services.

(b) This subchapter does not apply to an advertisement by a federal, state, or local government entity.

Added by Acts 2019, 86th Leg., R.S., Ch. 528 (S.B. 1189), Sec. 1, eff. September 1, 2019.

Sec. 81.152. PROHIBITED ADVERTISING.

An advertisement for legal services may not:

(1) present the advertisement as a “medical alert,” “health alert,” “drug alert,” “public service announcement,” or substantially similar phrase that suggests to a reasonable viewer the advertisement is offering professional, medical, or government agency advice about medications or medical devices rather than legal services;

(2) display the logo of a federal or state government agency in a manner that suggests to a reasonable viewer the advertisement is presented by a federal or state government agency or by an entity approved by or affiliated with a federal or state government agency; or

(3) use the term “recall” when referring to a product that has not been recalled by a government agency or through an agreement between a manufacturer and government agency.

Added by Acts 2019, 86th Leg., R.S., Ch. 528 (S.B. 1189), Sec. 1, eff. September 1, 2019.

Sec. 81.153. REQUIRED WARNINGS AND DISCLOSURES.

(a) An advertisement for legal services must state, both verbally and visually:

(1) at the beginning of the advertisement, “This is a paid advertisement for legal services.”;

(2) the identity of the sponsor of the advertisement; and

(3) either:

(A) the identity of the attorney or law firm primarily responsible for providing solicited legal services to a person who engages the attorney or law firm in response to the advertisement; or

(B) the manner in which a responding person’s case is referred to an attorney or law firm if the sponsor of the advertisement is not legally authorized to provide legal services to clients.

(b) An advertisement for legal services soliciting clients who may allege an injury from a prescription drug approved by the United States Food and Drug Administration must include a verbal and visual statement: “Do not stop taking a prescribed medication without first consulting a physician.”

Added by Acts 2019, 86th Leg., R.S., Ch. 528 (S.B. 1189), Sec. 1, eff. September 1, 2019.

Sec. 81.154. FORM OF REQUIRED WARNINGS AND DISCLOSURES; COURT FINDINGS.

(a) A visual statement required by this subchapter to appear in an advertisement must be presented clearly, conspicuously, and for a sufficient length of time for a viewer to see and read the statement.

(b) A court may not find that a visual statement in an advertisement is noncompliant with Subsection (a) if the statement is presented in the same size and style of font and for the same duration as a visual reference to the telephone number or Internet website of the entity a responding person contacts for the legal services offered or discussed in the advertisement.

(c) A verbal statement required by this subchapter to appear in an advertisement must be audible, intelligible, and presented with equal prominence as the other parts of the advertisement.

(d) A court may not find that a verbal statement in an advertisement is noncompliant with Subsection (c) if the statement is made at approximately the same volume and uses approximately the same number of words per minute as the voice-over of longest duration in the advertisement other than information required by this subchapter.

Added by Acts 2019, 86th Leg., R.S., Ch. 528 (S.B. 1189), Sec. 1, eff. September 1, 2019.

Sec. 81.155. ENFORCEMENT; PRIVATE CAUSE OF ACTION NOT CREATED.

(a) A violation of this subchapter is a deceptive act or practice actionable under Subchapter E, Chapter 17, Business & Commerce Code, solely as an enforcement action by the consumer protection division of the attorney general’s office or by a district or county attorney as provided by that subchapter. All remedies available under that subchapter are available for a violation of this subchapter.

(b) This subchapter does not create a private cause of action.

(c) Notwithstanding Subsection (a), if the advertising review committee of the State Bar of Texas reviews, in accordance with the committee’s procedures, an advertisement for compliance with this subchapter before the first dissemination of the advertisement and the committee informs the sponsor of the advertisement that the advertisement is in compliance with this subchapter and the applicable advertising standards in the Texas Disciplinary Rules of Professional Conduct, the consumer protection division of the attorney general’s office or a district or county attorney may not pursue an action under Subsection (a) unless:

(1) the consumer protection division or the district or county attorney demanded that the sponsor of the advertisement cease further dissemination of the advertisement;

(2) the sponsor of the advertisement is given a reasonable amount of time to ensure the advertisement is withdrawn from dissemination to the public; and

(3) the sponsor of the advertisement fails to ensure the advertisement is withdrawn from dissemination to the public within the time provided.

Added by Acts 2019, 86th Leg., R.S., Ch. 528 (S.B. 1189), Sec. 1, eff. September 1, 2019.

Sec. 81.156. CONSTRUCTION OF SUBCHAPTER. This subchapter may not be construed to limit or otherwise affect the authority of the Supreme Court of Texas to regulate the practice of law, enforce the Texas Disciplinary Rules of Professional Conduct, or discipline persons admitted to the state bar.

Added by Acts 2019, 86th Leg., R.S., Ch. 528 (S.B. 1189), Sec. 1, eff. September 1, 2019.

SUBCHAPTER C. ATTORNEY CONDUCT

Sec. 82.061. MISBEHAVIOR OR CONTEMPT.

(a) An attorney at law may be fined or imprisoned by any court for misbehavior or for contempt of the court.

(b) An attorney may not be suspended or stricken from the rolls for contempt unless the contempt involves fraudulent or dishonorable conduct or malpractice.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987.

Sec. 82.062. DISBARMENT.

Any attorney who is guilty of barratry, any fraudulent or dishonorable conduct, or malpractice may be suspended from practice, or the attorney’s license may be revoked, by a district court of the county in which the attorney resides or in which the act complained of occurred. An attorney may be suspended from practice or the attorney’s license may be revoked under this section regardless of the fact that the act complained of may be an offense under the Penal Code and regardless of whether the attorney is being prosecuted for or has been convicted of the offense.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987.

Sec. 82.063. RETENTION OF CLIENT’S MONEY.

(a) A person may bring an action against the person’s attorney if the attorney receives or collects money for the person and refuses to pay the money to the person on demand.

(b) To recover under this section the person must file a motion with a district court in either the county in which the attorney usually resides or the county in which the attorney resided when the attorney collected or received the money.

(c) Notice of the motion and a copy of the motion shall be served on the attorney not later than the fifth day before the trial.

(d) If the motion is sustained, judgment shall be rendered against the defendant for the amount collected or received and at least 10 percent but not more than 20 percent damages on the principal sum.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987.

Sec. 82.064. OFFICERS NOT TO APPEAR.

(a) A judge or clerk of the supreme court, the court of criminal appeals, a court of appeals, or a district court, or a sheriff may not appear and plead as an attorney at law in any court of record in this state.

(b) A county judge or county clerk who is licensed to practice law may not appear and practice as an attorney at law in any county or justice court except in cases over which the court in which the judge or clerk serves has neither original nor appellate jurisdiction.

(c) A county clerk who is licensed to practice law may not appear and practice as an attorney at law in the supreme court, the court of criminal appeals, a court of appeals, or a district court unless the court in which the clerk serves has neither original nor appellate jurisdiction.

Added by Acts 1987, 70th Leg., ch. 148, Sec. 3.01, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 829, Sec. 1, eff. Sept. 1, 1991.

Sec. 82.065. CONTRACT FOR LEGAL SERVICES.

(a) A contingent fee contract for legal services must be in writing and signed by the attorney and client.

(b) Any contract for legal services is voidable by the client if it is procured as a result of conduct violating Section 38.12(a) or (b), Penal Code, or Rule 7.03 of the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, regarding barratry by attorneys or other persons.

(c) An attorney who was paid or owed fees or expenses under a contract that is voided under this section may recover fees and expenses based on a quantum meruit theory if the client does not prove that the attorney committed barratry or had actual knowledge, before undertaking the representation, that the contract was procured as a result of barratry by another person. To recover fees or expenses under this subsection, the attorney must have reported the misconduct as required by the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, unless:

(1) another person has already reported the misconduct; or

(2) the attorney reasonably believed that reporting the misconduct would substantially prejudice the client’s interests.

Added by Acts 1989, 71st Leg., ch. 866, Sec. 3, eff. Sept. 1, 1989.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 94 (S.B. 1716), Sec. 1, eff. September 1, 2011.

Acts 2013, 83rd Leg., R.S., Ch. 315 (H.B. 1711), Sec. 1, eff. September 1, 2013.

Sec. 82.0651. CIVIL LIABILITY FOR PROHIBITED BARRATRY.

(a) A client may bring an action to void a contract for legal services that was procured as a result of conduct violating Section 38.12(a) or (b), Penal Code, or Rule 7.03 of the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, regarding barratry by attorneys or other persons, and to recover any amount that may be awarded under Subsection (b). A client who enters into a contract described by this subsection may bring an action to recover any amount that may be awarded under Subsection (b) even if the contract is voided voluntarily.

(b) A client who prevails in an action under Subsection (a) shall recover from any person who committed barratry:

(1) all fees and expenses paid to that person under the contract;

(2) the balance of any fees and expenses paid to any other person under the contract, after deducting fees and expenses awarded based on a quantum meruit theory as provided by Section 82.065(c);

(3) actual damages caused by the prohibited conduct;

(4) a penalty in the amount of $10,000; and

(5) reasonable and necessary attorney’s fees.

(c) A person who was solicited by conduct violating Section 38.12(a) or (b), Penal Code, or Rule 7.03 of the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, regarding barratry by attorneys or other persons, but who did not enter into a contract as a result of that conduct, may file a civil action against any person who committed barratry.

(d) A person who prevails in an action under Subsection (c) shall recover from each person who engaged in barratry:

(1) a penalty in the amount of $10,000;

(2) actual damages caused by the prohibited conduct; and

(3) reasonable and necessary attorney’s fees.

(e) This section shall be liberally construed and applied to promote its underlying purposes, which are to protect those in need of legal services against unethical, unlawful solicitation and to provide efficient and economical procedures to secure that protection.

(f) The provisions of this subchapter are not exclusive. The remedies provided in this subchapter are in addition to any other procedures or remedies provided by any other law, except that a person may not recover damages and penalties under both this subchapter and another law for the same act or practice.

(g) The expedited actions process created by Rule 169, Texas Rules of Civil Procedure, does not apply to an action under this section.

Added by Acts 2011, 82nd Leg., R.S., Ch. 94 (S.B. 1716), Sec. 2, eff. September 1, 2011.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 315 (H.B. 1711), Sec. 2, eff. September 1, 2013.

Sec. 82.066. ATTORNEY MAY NOT APPEAR.

An attorney may not appear before a judge or justice in a civil case if the attorney is related to the judge or justice by affinity or consanguinity within the first degree, as determined under Chapter 573.

Added by Acts 1989, 71st Leg., ch. 866, Sec. 4, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 561, Sec. 24, eff. Aug. 26, 1991; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(28), eff. Sept. 1, 1995.

Office of Chief Disciplinary Counsel

The Texas attorney discipline system is administered by the Office of Chief Disciplinary Counsel (CDC), which is designed to be the “Bar’s law office,” and whose work is overseen by the Commission for Lawyer Discipline. The CDC represents the Commission in disciplinary litigation. Professionalism and results are directly tied to the public’s perception of the ability of the State Bar of Texas to discipline its own lawyers and protect the public from unethical practitioners. In recognition of this close connection, emphasis is placed on the quality of disciplinary prosecutions, identification of disability or impairment problems, solutions for attorneys in need of law practice management or other basic skills, and innovative ways to maintain open communication between the public and the Bar.

The Chief Disciplinary Counsel operates the discipline system with 91 full-time employees, including 34 lawyers, 11 investigators, 31 legal support staff, 11 administrative support staff, and 4 administrative managers. In addition to its headquarters in Austin, the CDC has Regional Offices in San Antonio, Dallas, and Houston. Each Regional Office is responsible for the investigation and prosecution of disciplinary matters within its region and is managed by a Regional Counsel.

In the 2014-2015 bar year (LIT Comment; This content was republished from the Texas Bar website on 19th April, 2020)

CDC obtained sanctions in 318 cases, resolving 416 complaints. Sixty-three of these cases were resolved through the Grievance Referral Program. CDC pursued 18 compulsory discipline cases before the Board of Disciplinary Appeals (BODA) and obtained disbarment in seven of those cases, resignations in lieu of discipline in five cases, a suspension in one case, and interlocutory orders of suspension in five cases. CDC obtained judgments ordering reciprocal discipline in 11 cases, including two disbarments, five active suspensions, and four fully probated suspensions.

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