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The constitutions of the United States and Texas guarantee due-process rights to the accused. In attorney disciplinary cases, federal courts have articulated the following due-process rights for an accused attorney: 1. confronting the evidence against the respondent attorney and cross-examining witnesses; 2. presenting witnesses and argument on one’s own behalf; 3. asserting the privilege against self-incrimination; and 4. having an impartial body determine the facts and impose the sanctions.

The Texas disciplinary system has long given short shrift to this entire package of due-process rights. In fact, federal courts nationwide, including the 5th U.S. Circuit Court of Appeals, and the Texas Supreme Court have clashed head-on regarding the standard of proof that applies in attorney disciplinary proceedings.

Although the foremost purpose of the disciplinary rules is protecting the public, not simply punishing the attorneys, the U.S. Supreme Court and the 5th U.S. Circuit Court of Appeals view disciplinary proceedings as a punishment or a penalty imposed upon a lawyer. Therefore, both courts treat proceedings that may result in disbarment or suspension of an attorney’s license as quasi-criminal in nature. Such proceedings use either a “clear and convincing” or “beyond a reasonable doubt” standard of proof.

Yet in Texas, the burden of proof of the material allegations of a charge is merely a preponderance of the evidence. The new Texas Rules of Disciplinary Procedure, which went into effect Jan. 1, reveal only a slight movement toward the recognition for attorneys of the due-process rights so jealously guarded for other accused individuals.

The following chronology and changes went into effect Jan. 1 for grievances filed against attorneys:

1. If the chief disciplinary counsel (CDC) of the State Bar of Texas classifies the grievance as an inquiry, he or she refers the inquiry to voluntary mediation. If it’s classified as a complaint, the attorney receives a copy of the grievance and notice to respond.

2. Only the complainant may appeal a classification of a grievance, not the attorney.

3. No more investigatory hearings will be held to determine if just cause for a complaint exists. The CDC makes a determination based upon the complaint and the attorney’s response.

4. If the CDC finds no just cause, he or she presents the matter to a summary disposition panel (SDP) to decide whether to dismiss or go forward. If the SDP dismisses, it refers the matter to voluntary mediation.

5. If the SDP doesn’t dismiss the matter, it’s placed on a hearing docket. The responding attorney receives written notice of the acts or omissions he or she allegedly engaged in and finally gets notice of the disciplinary rules the CDC contends the attorney violated. The respondent attorney must then elect whether to proceed in state district court or before an evidentiary panel.

6. Under the new disciplinary rules, the lack of a complaining witness or compromise between the attorney and complainant does not justify the abatement or dismissal of the action. Previously, the Bar was reluctant to subpoena complaining witnesses, or at least it was more difficult for the Bar to proceed against the responding attorney if the complainant and attorney had resolved their differences.

Due-Process Violations

An accused attorney suffers from the following due-process violations:

No notice — period — at the CDC’s investigatory stage.

No opportunity to be heard at the investigatory stage (other than the original written response), where the accused attorney’s involvement and ability to answer specific questions could help convince the CDC to dismiss the matter. By being forced to wait until the CDC decides there’s smoke to be able to defend himself, the attorney runs the risk that the CDC may have partly made up her mind about the outcome. The attorney doesn’t get an opportunity to be heard until the evidentiary panel or trial.

No notice of contravened rules. After receiving notice that someone has filed a grievance, the lawyer, in concert with counsel, must try to figure out what the possible offense(s) may be. In a quasi-criminal proceeding such as a disciplinary hearing, the notice is insufficient because it fails to identify the actual violation(s) the attorney is accused of committing. It’s not until after the CDC makes a determination of just cause that the attorney gets sufficient notice, at which time the election must be made to proceed to court or to go before an evidentiary panel.

Different sanctions. The evidentiary panel’s carrot that it can dangle before the accused attorney is that it can impose a private reprimand as a sanction; the corresponding stick is that the minimum sanction a district court can impose is a public reprimand. The district court’s inability to assess the sanction of a private reprimand violates due process, as it establishes a different standard of punishment for the same or similar offense depending on the arena in which the charge is tried. Having to decide between the two is a Hobson’s choice.

Different rules of the game. The new rules finally provide for discovery at the evidentiary panel level, with discovery disputes resolved by the panel chair generally following the Texas Rules of Civil Procedure. Yet, unlike in a district court, the Texas Rules of Evidence generally only apply in an evidentiary panel hearing, during which the chair exercises discretion over the admission or exclusion of evidence. Also, no ruling upon the evidence can serve as a basis for reversal solely because it fails to strictly comply with the Texas Rules of Evidence. Thus, hearsay is an issue.

Different qualifications. In district court, the accused attorney has the right to pick an impartial jury, whereas only the factors that would disqualify a judge can disqualify evidentiary panel members. This is a far cry from the preemptory strikes and challenges for cause of jury selection. By the way, during the 2003 session, the Texas Legislature tried unsuccessfully to abolish an attorney’s right to trial by jury in disciplinary matters.

While the new rules offer some improvements for responding attorneys in the area of due-process rights, once a matter finally reaches the evidentiary panel level, these rules are still too little, too late, and fail to meet the requirements of federal constitutional due process, which guarantees equal rights to all citizens — no matter what their professions might be.

The responding attorney’s first written response to any grievance is the most important act to take, for it has criminal and evidentiary implications: The response is a party admission and can be used in an evidentiary panel hearing or in a district court trial. If it is not complete and exhaustive, bringing all facts and elements to the attention of the CDC and the summary disposition panel, the attorney may find himself on trial — either before an evidentiary panel or a district court. As upsetting as receiving a notice of a grievance may be, a responding attorney cannot afford the cost of emotionalism. Representing oneself in such a matter jeopardizes one’s law license, the loss of which may occur easily without the application of full due process in all its elements.

Robert S. “Bob” Bennett is a partner in and Renee E. Moeller is an associate with Houston’s Bennett Law Firm. Bennett is a former federal prosecutor and is board certified by the Texas Board of Legal Specialization in consumer and commercial law. He represents attorneys, doctors and judges beforevarious administrative boards, courts and panels throughout Texas. Moeller focuses mainly on grievance and malpractice matters and hearings before the Board of Law Examiners. She also handles appellate issues.

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