In a rare turn of events, the State Bar of Texas was ordered to investigate a grievance against Texas Attorney General Ken Paxton that alleged he committed professional misconduct just after the U.S. Supreme Court legalized same-sex marriage.
The bar’s Office of Chief Disciplinary Counsel dismissed the grievance in August 2015, about one month after a group of 250 attorneys filed it, and then the lawyers appealed to the Texas Board of Disciplinary Appeals (BODA). Earlier this month, the 12-attorney appellate body held that “the grievance alleges a possible violation of the Texas Disciplinary Rules of Professional Conduct,” and that the disciplinary counsel’s office must investigate to see if there is just cause to think professional misconduct occurred, according to a Feb. 2 letter from Christine McKeeman, BODA’s executive director and general counsel.
It’s very rare for BODA to reverse the disciplinary counsel office’s decision to dismiss a grievance. In this case, when the office received the grievance, a disciplinary lawyer reviewed it and decided it did not state a possible rule violation. The lawyer classified the grievance as an inquiry, rather than a true complaint, and dismissed it.
“Classification dismissals are reversed only 9 percent of the time,” said legal ethics attorney Ruth Kollman, who helped draft the Paxton grievance. “Not in my personal experience have I had it happen, nor have any of the other disciplinary ethics counsel. We are a small group, and nobody else has heard of it either.”
Claire Mock, spokeswoman for the disciplinary counsel’s office, declined to comment. But she noted that while the rate that BODA reverses classification decisions varies each year, it normally stays under 10 percent.
According to the grievance, Paxton violated rules that prohibit a lawyer from:
• disobeying, or advising a client to disobey, court rulings;
• making extrajudicial statements in public that would likely prejudice a court proceeding;
• speaking or engaging in conduct that shows bias or prejudice based on sexual orientation and other demographics;
• violating disciplinary rules;
• engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and
• engaging in conduct to obstruct justice.
“Paxton’s opinion purports to empower Texas state officials to assert individual religious grounds for refusing to perform their official duties. In addition, Attorney General Paxton released public statements in connection with the opinion that disparaged the U.S. Supreme Court and encouraged state officials to violate their official oaths of office,” alleged the grievance.
Now that BODA upgraded the grievance to a complaint, the bar must investigate it further to determine if there is just cause to believe Paxton committed a rule violation. Paxton must respond to all of the allegations in the complaint.
If the bar does not find just cause, it would recommend dismissal to a summary disposition panel. If the panel agrees to dismiss the complaint, the Texas Rules of Disciplinary Procedure strictly prohibit the group of lawyers who filed the grievance from being able to appeal the finding.
However, if the bar does find there is just cause to believe that Paxton violated the rules, then the complaint would enter the attorney disciplinary system.
“I hope that Mr. Paxton fully responds to each of the allegations in the complaint and that there will be a just cause finding that will result in either a proceeding in front of the bar, or an election for Mr. Paxton to go to district court,” Kollman said. “The reversal from BODA was so unexpected, that I think all bets are off with regard to what the next step will mean. But it’s the same group of people in the chief disciplinary counsel’s office who recommended there was no rule violation alleged in 26 pages. … It’s the same group of people that will decide and make a recommendation to the committee about whether or not a rule violation has been sufficiently alleged.”
Cynthia Meyer, spokeswoman for the Texas office of the attorney general, did not return an email seeking comment.