James McCormack James McCormack of Austin’s Law Offices of James M. McCormack. Photo: Joel Salcido

Lawyers who are in trouble may have a new way to defend themselves in attorney disciplinary proceedings after a court ruling this week—but only if the Texas Legislature doesn’t close the window soon.

In Commission for Lawyer Discipline v. Rosales, Austin’s Third Court of Appeals made a significant finding that the state’s anti-SLAPP law, the Texas Citizens Participation Act, applies in attorney discipline cases. In a concurring opinion, one justice warned that the majority’s decision would encourage more and more attorneys to file TCPA motions to dismiss to delay their disciplinary proceedings.

However, as defendant Omar Rosales prepares to appeal the Third Court ruling to the Texas Supreme Court, there’s another factor at play—the Texas Legislature has been debating House Bill 2730 to curb the broad application of the anti-SLAPP law.

We asked Austin solo practitioner Jim McCormack, longtime legal ethics attorney who often represents complainants and lawyers in disciplinary proceedings, for his thoughts on the Rosales opinion, its potential impact in attorney disciplinary cases, and how the pending legislation may end that possibility. Here are his answers, edited for brevity and clarity.

What are your personal thoughts and opinions on the Rosales ruling?

McCormack: The concurring opinion by Justice Kelly correctly identifies the problem with the courts applying the anti-SLAPP law to attorney disciplinary proceedings. I have seen one other instance of a respondent lawyer trying to do that, where I was representing the complainant in a grievance. In that case, the respondent lawyer defensively asserted that the anti-SLAPP statute barred the Commission for Lawyer Discipline from pursuing a disciplinary prosecution. The underlying attorney misconduct claim arose out of a written settlement-related communication sent by the respondent attorney to opposing counsel in which a statement was made that the Commission alleged violated a disciplinary rule. I thought then and I still think that the respondent’s claim that the anti-SLAPP law applied was nonsense.

The court ruled the TCPA does apply to lawyer-discipline cases. What do you think is the significance or impact of this finding on lawyer-discipline cases in Texas?

McCormack: The Court of Appeals’ ruling should have very limited application to attorney disciplinary cases, assuming that the Texas Supreme Court does not reverse. Most attorney disciplinary cases don’t involve a communication by a respondent lawyer that the lawyer can credibly claim invokes the anti-SLAPP law. Still, the legislature should fix this issue for good so that these defensive claims don’t unnecessarily delay disciplinary proceedings or result in an unfortunate form of immunity from disciplinary action for clear misconduct.

How do you expect attorneys facing discipline cases to use this ruling in their defense, if at all?

McCormack: I assume that respondents would have to argue that they were engaged in protected speech, and that the Commission for Lawyer Discipline was trying to limit or sanction that protected speech. This defense might be more effective in the lawyer-advertising realm than elsewhere since most lawyer disciplinary cases don’t involve the sort of speech that the anti-SLAPP statute purports to protect.

There is pending legislation that aims to narrow the scope of the TCPA. In your reading of the bill, how do you think that it would apply to lawyer discipline cases, if at all?

McCormack: The proposed legislation addressing the TCPA appears to fix the problem identified here. It is the problem of legislation generally that it can be hastily enacted without due consideration to its many implications and unintended consequences. And then the legislature has to fix what it did before over multiple legislative sessions as those consequences come home to roost.