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Attorneys who face allegations of professional misconduct will go through one less hearing in the State Bar of Texas attorney discipline process as a result of changes taking effect on Jan. 1. In its 2002 review of the State Bar, the state’s Sunset Advisory Commission found that the disciplinary process was unnecessarily complicated, lacked consistency and took too long. To make the system more efficient, the Texas Legislature amended the State Bar Act — Texas Government Code Chapter 81 — to eliminate the investigatory or “just cause” hearing currently held for every complaint in which misconduct is alleged. “It will be more streamlined,” Mark White, chairman of the Bar’s Commission on Lawyer Discipline, says of the new system. Dawn Miller, the Bar’s chief disciplinary counsel, says that, on average, about 8,000 complaints are filed against attorneys each year. During the year that ended on April 30, the Bar held 4,163 investigatory hearings, Miller says. In the same year, the Bar reported 437 disciplines — including 34 disbarments and 11 resignations in lieu of discipline, she says. Jim McCormack, a former general counsel and chief disciplinary counsel for the Bar, says eliminating the investigatory hearing means that lawyers won’t have to go through a hearing process if they haven’t done anything wrong. But the change may not be in the best interests of complainants who want to have their complaints heard, says McCormack, now a partner in Austin’s Tomblin Carnes McCormack. McCormack says an investigatory hearing panel typically asks a lot of questions and, in the questioning process, may discover that a lawyer has committed more misconduct than the complainant alleged. McCormack says a client may complain only that his lawyer charged him too much. But he says that when members of the panel start asking questions, they may learn that the lawyer showed up at the individual’s front door to sign him up as a client after the individual was injured in a car accident — a barratry violation. “Part of my worry about the revamped system is it’s very likely to detect fewer instances of misconduct than the old system did,” McCormack says. But Jennifer Knauth, who frequently represents attorneys in the grievance process, says investigatory panels are made up of volunteers burdened with heavy caseloads and limited time in which to hear cases. An attorney usually doesn’t know why a panel finds just cause exists in his or her case and has “very little recourse” when a panel makes that decision, says Knauth, a partner in Austin’s Scott, Douglass & McConnico. Office of the Chief Disciplinary Counsel (OCDC) spokesman Mark Pinckard says checks are built into the new system to prevent legitimate complaints from falling through the cracks. One of the safeguards, Pinckard says, is the summary disposition panel, which will decide whether a complaint will be dismissed, as recommended by the OCDC, or will be litigated. “There is that person [the panel] standing at the back door making sure nothing gets out,” Pinckard says. The Commission for Lawyer Discipline — the panel to which the OCDC answers — is also a safeguard, says White, a shareholder in Amarillo’s Sprouse Shrader Smith. With public members holding half of the commission’s 12 seats, the commission is cognizant that its role is to protect the public, he says. “We want a balanced system that is fair to everybody,” White says. CUTTING STAFF The process for making the initial determination about a grievance will not change under the new system. As it has in the past, the OCDC will classify each grievance either as an inquiry, which does not state professional misconduct on its face, or a complaint. The change, Miller says, is that lawyers can no longer appeal the classification. Miller says the OCDC will be able to dismiss outright any grievances classified as inquiries but will investigate those classified as complaints to determine whether just cause exists to litigate them. If the OCDC is able to ascertain from its investigation that there is no merit in a complaint, it can recommend to a summary disposition panel made up of members of a district grievance committee (there are 17 district grievance committees in Texas) that a case be dismissed, Miller says. It’s up to the panel whether to accept the recommendation, she adds. A dismissal doesn’t have to be the end of the line for a grievance, however. The Legislature included a requirement in the State Bar Act that all dismissed cases be referred to dispute resolution. Knauth says that requirement has the potential to be beneficial. Any time a grievance is filed, it’s because a client is unhappy about something, she says. “This is an opportunity for the parties to get together and resolve the matter outside the disciplinary system,” Knauth says. If the OCDC finds just cause to proceed with a complaint against an attorney, it is required by the disciplinary rules to provide written notification of the allegations and alleged rule violations to the attorney. The attorney then must decide whether to have the case heard by a state district court or an evidentiary hearing panel. The evidentiary hearing panel, which also is made up of members of the district grievance committee, conducts a trial-like hearing. Knauth says that under the current system, if an attorney isn’t offered or doesn’t accept a private reprimand after an investigatory hearing, the least sanction possible is a public reprimand. But in the new system, an attorney who elects to go to an evidentiary hearing still could receive a private reprimand, she says. Along with the changes in the disciplinary system, the Bar is reorganizing and cutting staff in the OCDC. In a Dec. 4 news release, the Bar announced that it would close six field offices — in Corpus Christi, El Paso, Fort Worth, Harlingen, Midland and Tyler — and eliminate 29 positions, effective March 31, 2004. Miller says the three regional offices in Dallas, Houston and San Antonio and the headquarters office in Austin will be restructured. While the Bar will eliminate 29 positions, it will add four attorneys, two investigators and six legal secretaries, she says. More attorneys will be needed early in the process to make determinations about whether to seek dismissal of a complaint, Miller says. Pinckard says the OCDC anticipates that more cases will go into litigation under the new system. But Miller says her office will increase its efforts to try to resolve complaints through mediation.

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