Committee Recommends Changes to Lawyer Disciplinary System

Committee Recommends Changes to Lawyer Disciplinary System

By Mary Alice Robbins

Texas Lawyer

Monday, August 6, 2007


After three years of experience under the 2003 changes to the state's lawyer disciplinary system, it's time for the system to undergo an independent review, according to a report submitted recently to the Texas Supreme Court.

One of the more significant changes the Texas Legislature made in the grievance process in 2003 altered what had been a two-stage hearing process, eliminating the investigatory hearings previously conducted by local grievance committees.

Under the revised system, the State Bar of Texas Office of the Chief Disciplinary Counsel (OCDC) investigates all complaints against lawyers and recommends placement of complaints that do not identify actual attorney misconduct on a summary disposition docket that a local grievance committee considers for dismissal without hearing from the complainant or respondent lawyer. If the OCDC staff finds just cause for a complaint, the attorney has the option of having a State Bar evidentiary panel or a state district court hear the case.

In light of the changes to the disciplinary system, the Supreme Court-appointed Grievance Oversight Committee (GOC) recommends in its June report that the court give a green light for the American Bar Association Standing Committee on Professional Discipline to conduct a systemwide review of Texas' lawyer disciplinary system. The proposed peer review is among numerous recommendations included in the 25-page GOC report.

GOC chairman Gaines West, a shareholder in West, Webb, Allbritton & Gentry in College Station, says the ABA committee typically conducts such reviews in other jurisdictions but has not reviewed the Texas system for at least 18 years.

ABA records indicate the last time the standing committee conducted a public peer review in Texas was in 1981, ABA spokeswoman Nancy Slonim says.

West says an ABA review would help the GOC make more focused recommendations to the Supreme Court about ways to improve the disciplinary system.

"It would help us compare what we're doing in our state with other states," West says.

According to the ABA's Web site, a peer review team reviews relevant court rules, reports and statistics and examines issues related to resource allocation and the caseload management process. The team also visits the state to conduct interviews with all stakeholders in the disciplinary system. As noted on the Web site, each jurisdiction is asked to contribute $6,000 to help cover the consultation costs.

West says the GOC recommended that the court approve such a review of the disciplinary system in 2003 after the Legislature made its changes in the process. But Dawn Miller Evans, the chief disciplinary counsel at that time, did not think the state had had enough experience under the new system, West says.

"To study a brand-new system and spend a lot of money doing it didn't make any sense," says Evans, now director of professional standards for the State Bar of Michigan.

Evans says the ABA uses its own staff and experts from lawyer disciplinary systems in other states to form the peer review teams. Evans suggests that another way to do the audit with less cost would be for Texas to use a team of in-state experts to review the system, and she says the state could "still get a good review."

West says Texas could form its own team to examine the system, but he points out that the ABA has been set up to do the reviews for a number of years. The ABA standing committee has conducted 49 lawyer disciplinary system consultations since 1980, according to the Web site.

Supreme Court Justice Scott Brister, the court's liaison for grievance oversight, calls the GOC's report excellent. "They've obviously put a lot of time and effort into it," Brister says.

But Brister says some of the committee's recommendations are controversial, including the call for an ABA peer review. "We want to hear from others," he says, noting that the court has requested responses from the State Bar board of directors, the OCDC, the Commission for Lawyer Discipline (CFLD) and the Board of Disciplinary Appeals (BODA).

Current leaders of the state's lawyer disciplinary system — chief disciplinary counsel John Neal; CFLD vice chairman Orrin Harrison, a partner in Dallas' Akin Gump Strauss Hauer & Feld; and BODA chairwoman Karen Watkins, a partner in Austin's McGinnis, Lochridge & Kilgore — decline comment on the GOC recommendations.

State Bar President Gib Walton, a partner in Houston's Vinson & Elkins, declines comment except to say, "We're all on the same team. We're all going to try to figure out what the best path forward is to have the best disciplinary system."

No Appeal

As a result of the 2003 legislative changes, attorneys no longer can appeal to BODA when the chief disciplinary counsel classifies grievances against them as complaints that will be heard by a grievance panel or a district court. Only the complainant can appeal a classification decision.

Because of that change, the chief disciplinary counsel has "more input to shape what conduct constitutes grievable complaints," increasing the potential for abuse of prosecutorial discretion, according to the report. The GOC recommends the restoration of the respondent attorney's right to appeal classification decisions.

Steven L. Lee, an Austin attorney who represents other attorneys in the grievance process, says if the chief disciplinary counsel's staff finds that the complainant failed to state conduct that violates the disciplinary rules, the complainant gets a chance to rewrite the complaint in an appeal to BODA.

"I don't understand why the lawyer doesn't have the same right," says Lee, a shareholder in Lione & Lee.

However, Claude Ducloux, another Austin attorney whose clients include attorneys caught up in the grievance process, says the GOC's recommendation to restore attorneys' right to appeal the classification decisions is unlikely to win approval.

Ducloux, a principal in Hill, Ducloux, Carnes & Hopper, says he'd advise attorneys not to appeal a classification decision in most instances to speed up resolution of a complaint. The attorney can address the issues with the grievance committee, he says.

But Lee says that once a complaint goes to the evidentiary hearing panel or district court, it is hard to get the case dismissed.

In the report, the GOC also encourages BODA to write more opinions and to publish abstracts of confidential classification decisions. West says the GOC wants the opinions and abstracts available to give lawyers more guidance on what is ethical conduct.

BODA sees problems with the recommendations, however. In its June 29 response to the Supreme Court, BODA noted that each classification decision is dependent on the often scant facts alleged by the complainant and the facts vary greatly from one complaint to the next. It's also "almost impossible consistently to strike the correct balance between including sufficient specificity to provide guidance and obscuring enough facts to maintain the mandated confidentiality," BODA stated in the response.

Another section of the report deals with problems in the enforcement of the State Bar's advertising rules. The GOC notes that "it is widely believed that violations of lawyer advertising rules are rampant."

Citing a lack of uniformity in enforcement of alleged advertising rule violations, the GOC recommends the establishment of a special grievance committee that would deal only with advertising and solicitation-related complaints.

"I think that is a great recommendation," Ducloux says. "They need consistency because of the explosion of ways that people can contact you with Internet and e-mail and spam."

Another recommendation calls for the State Bar board to establish an ombudsman's office to help complainants with issues related to filing complaints. West says there is no doubt that some complaints get dismissed, because complainants don't know what to include in them.

The GOC also found that the Legislature's 2003 decision to eliminate the evidentiary hearing in the grievance process coupled with 2004 staff reductions to meet an almost $1 million cut in OCDC funding has reduced local grievance committees' chances to bring a complainant and attorney together to attempt early resolution of a case. As noted in the report, the staff reduction virtually eliminated the positions held by Professional Enhancement Program coordinators who served as liaisons for the rehabilitation of lawyers needing help with drug and alcohol abuse and assisted lawyers who needed help with office management and related skills.

West says the GOC wants to explore ways to abate complaints, if the complainant and the respondent agree, so that the parties can try to resolve matters through alternate dispute resolution.

Brister says the Supreme Court will consider the GOC's recommendations along with the responses from the various entities with interests in the disciplinary system. Brister notes the court will probably take action on the recommendations this fall.