THE GRIEVANCE PROCESS

The Grievance ProcessChapter 13complaint as an inquiry.41 A complaint dismissed bythe SDP is final and cannot be appealed by thecomplainant.42 During the 2009-10 bar year, 97percent of the cases presented for summary dispositionwere dismissed.43 However, the SDP may vote toproceed to just cause based on its own analysis of theevidence.44III. DEVELOPING THE STORY – THEINVESTIGATION PROCESSA. ConfidentialityThe treatment of a complaint is confidentialduring the classification and investigation phases.31Confidentiality continues if just cause is found and thedisciplinary case is adjudicated by an evidentiarypanel. Even though the evidentiary hearing process isconfidential, records to the proceeding become publiclyaccessible once a respondent receives a publicsanction.32Public sanctions include a publicreprimand, suspension, disbarment and resignation inlieu of discipline.33 If a respondent receives a privatereprimand, the records will remain confidential.34 Ofcourse, if a respondent chooses to have his or her caseheard in district court by a visiting judge, it is notconfidential.35D. Just CauseThe TRDP define just cause to mean:“ such cause as is found to exist upon areasonable inquiry that would induce areasonably intelligent and prudent person tobelieve that an attorney either has committedan act or acts of Professional Misconductrequiring that a Sanction be imposed, orsuffers from a Disability that requires eithersuspension as an attorney licensed to practicelaw in the State of Texas or probation.” 45B.InvestigationA CDC investigator and administrative attorney,who are assigned to a particular complaint, begin theinformation-gathering process. The ,complainant(s) and respondent; reviewing therespondent’s written response; researching court files;and obtaining other information. At the conclusion ofthe investigation, a finding must be made of whetherjust cause exists to prosecute respondent forprofessional misconduct.36When a determination of just cause is made, therespondent is notified in writing of: (1) the just causefinding, (2) the alleged rule violations, (3) the allegedacts or omissions leading to those violations, and (4)given a choice (or election) between the complaintproceeding to an evidentiary hearing or district court.46Respondent’s election must be in writing and servedupon the CDC no later than 20 days from the date therespondent received the just cause notification.47 Ifrespondent does not make an election, the complaintproceeds to an evidentiary hearing.48In the 2009-10 bar year, there were 453 just causefindings and less than 10 percent of respondentselected district court.49 Respondents typically choosean evidentiary hearing, because it offers the possibilityof receiving the lowest sanction, called a privatereprimand, which is not available in district courtproceedings.50 Respondents, who do not make anC. Summary Disposition Panel – A SecondChance for DismissalIf there is no finding of just cause, the CDC mustrequest a summary disposition panel (SDP) to reviewthe complaint.37 Venue for a summary disposition is inthe county where the alleged misconduct occurred, if itoccurred in Texas.38 Otherwise, venue is in the countywhere the respondent resides or, in the alternative, inTravis County.39 The SDP meets without the presenceof complainant, respondent or witnesses.40 If the SDPagrees with the CDC’s finding, it will dismiss the3132Tex. R. Disciplinary P. 2.16.Id. 2.16(A)(2).36373842Id.2009-2010 ST. B. OF TEX. COMMISSIONDISCIPLINE ANN. REP. 18.Id. 1.06(Y); and 2009-2010 ST. B. OF TEX. COMMISSIONFOR LAWYER DISCIPLINE ANN. REP. 20-22.35Id.4333344144Tex. R. Disciplinary P. 2.13.Id. 2.16(E); and 20.45Id. 1.06(U).Tex. R. Disciplinary P. 3.02.46Id. 2.14(D); 2.15.Id. 1.06(U); 2.12.47Id. 2.15.Id. 2.13.48Id.Id. 2.11(A).4939Id.40Id. 2.13.2009-2010 ST. B. OF TEX. COMMISSIONDISCIPLINE ANN. REP. 19.503Id.; Tex. R. Disciplinary P. 2.16 & 3.10.FORLAWYERFORLAWYER

The Grievance ProcessChapter 13election, default to an evidentiary hearing.51Additionally, a trial in district court is public while anevidentiary hearing is confidential.52A respondent who elects district court may, ofcourse, choose a jury or bench trial.53 In either case, theTexas Supreme Court appoints an active district judgewho does not reside in the respondent’s administrativejudicial district to preside over the case.54dedicated lawyers and nonlawyers donated their timeto serve as grievance committee members.59 Inaddition, there are six lawyers and six public memberswho serve as volunteers on the Commission forLawyer Discipline.60 Even the appellate body, BODA,which has original and appellate jurisdiction over sixtypes of disciplinary cases, is made up of twelvelawyers who volunteer their time.61A properly constituted quorum is the subject ofTRDP and case law.62 Generally, for every group oftwo lawyer members, there must be one public memberon the evidentiary panel.63 For example, if there arethree lawyers present (which equal one grouping oftwo), there has to be one public member.64 But if thereare four lawyers present (which equals two groupings),there must be two public members present for thehearing to proceed.65The panel presiding over an evidentiary hearingmust also have a majority of the members appointed tothe panel be present in order to have a quorum.66Additionally, the quorum has to remain properlyconstituted during the entire evidentiary hearing.67 Asa result, a properly constituted quorum will (1)represent a majority of members appointed to theevidentiary panel (2) with the proper ratio of lawyermembers to public members (3) during the entireproceeding.68IV. TELLING THE STORY – ADJUDICATIONA. Procedural RulesSince approximately 90 percent of complaints areheard by an evidentiary panel of grievance committeemembers, this paper will focus primarily onevidentiary hearings. Trial in district court proceeds asany other civil case and the right to appeal is throughthe state appellate court system.Regardless of the adjudicatory setting, there aretwo sets of procedural rules that a lawyer, who isrepresenting respondents or is a respondent, should beknowledgeable of: (1) the Texas Rules of DisciplinaryProcedure (TRDP) and (2) the Texas Rules of CivilProcedure except as varied by the TRDP.55B.Evidentiary Panel and a Proper QuorumFor an evidentiary panel to convene, it must havea properly constituted quorum of grievance committeemembers.56 An evidentiary panel is typically made upof six grievance committee members, four of whom areTexas-licensed lawyers and two of whom are publicmembers or nonlawyers.57 All grievance committeemembers are volunteers.58 In some respects, thereliance of the disciplinary system on volunteers isastounding. In 2009-10 bar year, a total of 399C. Timeframes and VenueFifteen days after the CDC receives therespondent’s election (or the day following theexpiration of the respondent’s right to elect), thegrievance committee chair must appoint committeemembers to an evidentiary panel.69 Evidentiary panels5951Id. 2.15.2009-2010 ST. B. OF TEX. COMMISSIONDISCIPLINE ANN. REP. 13.52Tex. R. Disciplinary P. 2.16.6053Id. 3.01.6154Id. 3.02.55Id. 1.02 ; 3.08(B) (emphasis added).Id. 2.07; Allison v. Comm’n for Lawyer Discipline, BODACase No. 08-0705 (August 21, 2008) (interpreted a properlyconstituted quorum under TRDP 2.07 to mean, if there areonly four members from the six-member evidentiary panelpresent during an evidentiary hearing, at least one of themmust be a public member [e.g., 3 attorney members 1public member; or 2 attorneys 2 public members]; Cafierov. Comm’n for Lawyer Discipline, BODA Case No. 37811(May 10, 2007) [one public member left during theevidentiary hearing and there was no longer a properlyconstituted quorum]. BODA opinions are available at:http://txboda.org/.58LAWYERId. at 1-3; and Tex. R. Disciplinary Procedure 4.08.2010 BOARD OF DISCIPLINARY ANN. REP. 1 & 5; but seeTRDP 7.06. The six types of disciplinary cases are: (1)appeal of a CDC inquiry, (2) appeal of an evidentiary paneljudgment, (3) reciprocal discipline [original jurisdiction], (4)compulsory discipline [original jurisdiction], (5) revocationof disciplinary probation [original jurisdiction], and (6)lawyer disability discipline [original jurisdiction].5657FOR62See generally Allison; and Cafiero.63Allison at 4-6.64Id.65Id.6667Tex. R. Disciplinary P. 2.07.Cafiero at 11-12, 14.Cafiero at 10-11.68Supra note 62.Tex. R. Disciplinary P. 2.08.69Tex. R. Disciplinary P. 2.17.4

The Grievance ProcessChapter 13usually are in six-member or three-member panels,depending on the size of the committee.70 Venue is inthe county where respondent’s principal place ofpractice is maintained; or in the alternative, the countywhere respondent resides.71 Other venue choices mayinclude the county where the professional misconductallegedly occurred if respondent does not maintain aplace of practice or residence; or, in some cases, TravisCounty.72The CDC has 60 days from receipt of therespondent’s election (or the deadline for election if noelection is made) to file its evidentiary petition with theevidentiary panel.73 Respondent’s deadline to file ananswer is 5:00 p.m. on the first Monday following theexpiration of 20 days after receiving service of theCDC’s petition.74 If Respondent does not timely filean answer, then a default is entered and the evidentiarypanel conducts a hearing on sanctions. 75An evidentiary hearing must be held no later than180 days after the date the answer is filed, but nosooner than 45 days after each party receives notice ofthe hearing date (unless waived by all parties).76Either party may serve a request for disclosureupon the other within 30 days before the first setting ofthe evidentiary hearing.77 A party has to provide awritten response to the request within 30 days afterreceiving service. A failure to respond to the requestfor disclosure may prevent the party from introducingwitnesses or evidence that was not disclosed in theenumerated list provided in TRDP 2.17(D).78 Inaddition, the parties may not raise an objection orassertion of work product in order to avoid a requestfor disclosure.79TRDP 2.17(E) outlines a limited discovery planand states that the discovery period begins when theevidentiary petition is filed and continues until 30 daysbefore the day of the evidentiary hearing.80 Althoughthe evidentiary hearing is less formal than a districtcourt trial, it is similar in many ways to other civilcases.81The evidentiary panel must issue a judgmentwithin 30 days of the hearing.82 The judgment mustinclude findings of fact, conclusions of law and thesanction to be imposed.83 At the conclusion of theevidentiary hearing, the evidentiary panel may: (1) findthat professional misconduct occurred and imposesanctions; or (2) dismiss the case; or (3) find that therespondent suffers from a disability and forward thatfinding to BODA.84For a complete set of procedural deadlines, thelawyer should consult the TRDP. (See Appendix A foronline links to the TRDP.)7081Id. 2.17(F)-(N).82Id. 2.17(P).Id.83Id.Id.717273D. Published Case LawCase law regarding Texas disciplinary cases maybe found in the Southwest Reporter, Federal Reporter,and at the Board of Disciplinary Appeals’ web site athttp://www.boda.org/.E.Appeal of an Evidentiary JudgmentAll appeals from an evidentiary hearing go toBODA.85 The notice of appeal must be filed within 30days after the date of the evidentiary judgment. 86However, when a motion for a new trial or a motion tomodify the judgment is filed, the deadline to file thenotice increases to 90 days.87 Appeals are reviewedunder the substantial evidence standard.88 In addition,BODA promulgates its own procedural rules for theparties to follow.89 An appeal from BODA is to theTexas Supreme Court.90V. ENDINGS ARE THE HARDEST PARTSANCTIONSA. SanctionsBoth the evidentiary panel and the district courtjudge may, at their discretion, hold bifurcated hearingson sanctions when professional misconduct is found.91Id. 2.06-2.07; and Cafiero at 10-11.Tex. R. Disciplinary P. 2.11(B).Id. 2.17(A).8474Id. 2.17(B).85Id. 2.24.75Id. 2.17(C).86Id.Id.76Id. 2.17(O).8777Id. 2.17(D).88Id.78Id.89Id.Id.90Id. 2.28 & 7.11.Id. 2.17(E).91Id. 2.18 & 3.10.79805

The Grievance ProcessChapter 13active and the lawyer cannot practice law.100 If thelawyer violates a disciplinary rule while on a probatedsuspension or partially probated suspension, he or sheis subject to revocation.101 An order granting a motionto revoke turns the entire suspension into an activesuspension without any credit for time the respondenthas already served during the probated period,essentially restarting the suspension period.102Revocations of evidentiary judgments are heard byBODA.103 However, a motion to revoke probation of adistrict court judgment is filed with the district court,which has continuing jurisdiction until the suspensionends.104Other suspensions include an immediate interimsuspension when the CDC can show that irreparableharm will occur to clients or prospective clients ifrespondent is allowed to continue practicing law whilethe disciplinary case is being adjudicated.105 A petitionfor an interim suspension is filed in a district court ofproper venue.106Another type of suspension is an indefinitedisability suspension, which only BODA can grant.107The TRDP define disability as “ any physical, mentalor emotional condition that, with or without asubstantive rule violation, results in the attorney’sinability to practice law, provide client services,complete contracts of employment, or otherwise carryout his or her professional responsibilities to clients,courts, the profession, or the public.” 108BODA has the authority to hear motions forindefinite disability suspensions.109 It will appoint aDistrict Disability Committee (DDC) to receiveevidence and determine whether respondent has adisability.110 The DDC is comprised of one attorney,one medical doctor (or mental health care professionalwith a doctorate degree) and one public member.111Some of the factors that the trier of fact must considerwhen imposing sanctions (in no particular order) are: nature and degree of the professional misconductcommitted by respondent, for which he or she isbeing sanctionedseriousness of and circumstances surrounding theprofessional misconductloss or damage to the clientdamage to the professionassurance that those who use legal services in thefuture will be insulated from the type ofprofessional misconduct foundprofits to the attorneyavoidance of repetitiondeterrent effect on othersmaintenance of respect for the legal Professionconduct of respondent during the Proceedingrespondent’s disciplinary record, including anyprivate reprimands 92Sanctions may range from a private reprimand todisbarment.93 A respondent who faces a sanction asserious as disbarment may choose to resign in lieu ofdiscipline.94 In

Counsel. She advises attorneys on the Texas Disciplinary Rules of Professional Conduct, Texas Rules of Disciplinary Procedure and ethics opinions issued by the Professional Ethics Committee for the State Bar of Texas. She has also served as an administrative attorney and classification attorney for the Office of Chief Disciplinary Counsel. Ms.