Revisions to the Texas Disciplinary Rules of Professional Conduct and the Disciplinary Rules of Procedure
On March 1, effective on June 1, 2018, the Texas Supreme Court changed both the Rules of Professional Conduct and the Rules of Procedure for grievances. The Court indicated in two orders that the changes might be modified based on comments received up to April 28, 2018, but no subsequent orders modifying the rules changes have been entered. The court indicated that the rules changes were made to carry out Senate Bill 302 in 2017.
Changes to the Disciplinary Rules
The Disciplinary Rules now include Rules 8.03(e) and (f) by an order on March 1. Rule 8.03(e) requires a lawyer to report to the bar’s chief disciplinary counsel, within 30 days, any order or judgment, regardless of whether there is a finding of guilt, in which the lawyer is convicted of or placed on probation for the following crimes:
- Barratry
- Any felony
- A misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property. This includes a conviction or sentence of probation for attempt, conspiracy, or solicitation.
Rule 8.03(f) imposes a similar 30 day duty to report any disciplinary action against a lawyer from another jurisdiction.
Under prior rules, lawyers were not under any requirement to report their own conviction or probation. A comment to Rule 8.03 added by the court also effectively requires the chief disciplinary counsel to create a system for such reporting.
Changes to Rules of Procedure
A brief description of the existing disciplinary process helps in understanding the context of the new procedural rules. New steps in the process, described in more detail below, are noted with a star.
The chief disciplinary counsel classifies the matter as either an Inquiry or a Complaint. An inquiry is a dismissal, which the complaining party may appeal.
* The matter may now be classified as a Discretionary Referral.
If a matter is classified as a Complaint, the lawyer is advised of the classification, and has 30 days to submit a response to the complaint.
After receipt of the response, the chief disciplinary counsel must determine whether there is Just Cause within 60 days.
*The chief disciplinary counsel may subpoena records that relates directly to a specific allegation of attorney misconduct, with the approval of the local grievance committee chair, while investigating the Complaint.
* Before the 60 days to submit the matter to an Evidentiary Panel, the chief disciplinary counsel may submit the matter to an Investigatory Panel. The chief disciplinary counsel may subpoena both records and persons to appear before the panel, with approval of the panel chair. The panel does not adjudicate the claim, but rather gathers evidence.
Matters submitted to the Summary Disposition Panel are those that the chief disciplinary counsel finds that Just Cause does not exist to proceed. If the panel does not dismiss the matter, it is scheduled for an Evidentiary Panel, or Just Cause, hearing.
* The matter may be referred to the Grievance Referral Program during the Just Cause phase of the process or after investigative hearing.
A lawyer may elect to have a district court trial, with or without a jury, rather than an Evidentiary Panel hearing. The election must occur within 20 days of the receipt of notice of the panel hearing by the lawyer.
An Evidentiary Panel hearing can result in either a dismissal or a sanction. The panel may also affirm a negotiated judgment between the lawyer and the chief disciplinary counsel.
Discretionary Referral to CAAP. At initial classification of a grievance, minor claims of misconduct may be referred to the Client Attorney Assistance Program (CAAP) as a Discretionary Referral. Within 60 days of the referral, CAAP will report back to the chief disciplinary counsel. The chief disciplinary counsel will then decide within 15 days whether to classify the claim as an Inquiry (no further disciplinary action to be taken) or a Complaint (further investigation will occur). The prior procedure, where all Inquiries were referred for attorney client mediation, is no longer in effect.
Enhanced Investigative Procedures. After classification as a complaint, the new rules permit the chief disciplinary counsel to subpoena records to investigate the complaint further. This is a new power not previously available to the chief counsel. The subpoena power does not extend to persons, however. The local grievance committee chair decides any challenges to the materiality of the evidence subpoenaed. Subpoenas must be served as they would be for a district court matter.
The chief disciplinary counsel may also now refer the matter to an Investigatory Panel. The counsel may subpoena either witnesses or records to be reviewed by the panel. This panel is non-adversarial, having no power to refer to either a Summary Disposition Panel or Evidentiary Panel. That is still a call for the chief disciplinary counsel. The chair of the panel decides disputes about any subpoena issued.
Sanction Guidelines. Much more detailed guidelines for sanctions are part of the new rules of procedure. The guidelines address very specifically, by disciplinary rule violated and nature of the violation, what sanctions are appropriate.
Grievance Referral Program. Finally, the new rules modify the Grievance Referral Program, which is distinct from the Discretionary Referral to CAAP. The program is available only in particular situations after an investigatory hearing or at the just cause stage of the disciplinary process. The lawyer must not have been disciplined in the previous 3 years, and must not have been disciplined for similar conduct in the last 5 years. The misconduct must not involve misappropriation of funds, breach of fiduciary duty, dishonesty, fraud, misrepresentation or a crime. The misconduct must also no have resulted in substantial harm or prejudice. The lawyer must have been cooperative, and participation in the program must further the goal of protecting the public.
Lawyers are referred to the Grievance Referral program by the Commission for Lawyer Discipline and must agree to meet with the program administrator for an assessment of professionalism issues that contributed to misconduct. The lawyer must agree to waiver of time limits on additional grievance proceedings and to complete specific terms and conditions of the program in a timely manner. Conditions may include payment of costs and restitution. Failure to complete the program or conditions may result in continuation of the grievance disciplinary process.
