THE NEW GRIEVANCE SYSTEM AND HOW TO AVOID IT. BETTY BLACKWELL Chair, Commission for Lawyer Discipline Standing Committee of The State Bar

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1 THE NEW GRIEVANCE SYSTEM AND HOW TO AVOID IT BETTY BLACKWELL Chair, Commission for Lawyer Discipline Standing Committee of The State Bar Attorney at Law Board Certified Criminal Law 1306 Nueces St. Austin, Texas State Bar of Texas 6 TH ANNUAL ADVANCED WORKERS COMPENSATION COURSE August 13-14, 2009 Austin CHAPTER 14

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3 BETTY BLACKWELL 1306 Nueces Street Austin, Texas (512) FAX: (512) BIOGRAPHICAL INFORMATION EDUCATION Summa Cum Laude from Texas A&M with a B.A. degree J.D. with Honors, The University of Texas Law School Board Certified in Criminal Law PROFESSIONAL ACTIVITIES & AWARDS Appointed by State Bar President to the Commission for Lawyer Discipline Appointed as the Chair of the Commission for Lawyer Discipline for President of the Texas Criminal Defense Lawyers Association Chairman of the Criminal Justice Section of the State Bar of Texas, 2001 Governor George Bush s Appointee to rewrite the Code of Criminal Procedure, 1996 Governor Ann Richard s Appointee to the Texas Punishment Standard's Commission to rewrite the Penal Code, 1994 Past Chairman of the Criminal Law & Procedure Section of the Travis County Bar Past President and Founding Member of the Austin Criminal Defense Lawyers Penal Code Committee of the State Bar of Texas Legislative Chairman for the Texas Criminal Defense Lawyers Association, l99l Voted Best Criminal Lawyer in Austin by the Austin Chronicle, 1994 Voted Best Trial Lawyer in Austin by the Travis County Women Lawyer s Association, 1992 Committee for Indigent Representations in Criminal Matters for the State Bar of Texas Presidential Award of Merit - TCDLA 1990, 1992, 1993, 1994 Ambassador Award, Austin Criminal Defense Lawyers Association, 1994 Super Lawyer by Texas Monthly and Texas Lawyer, 2007 LAW RELATED PUBLICATIONS Co-author with Judge Tom Blackwell and Judge Michael McCormick of Texas Practice Volume 7, 7A and 8, published by West Publishing Co. Author/speaker for the State Bar of Texas Advanced Criminal Law, Criminal Law Boot Camp, & Law office Management of a criminal practice Author/speaker for Texas Criminal Defense Lawyers Association, Former Adjunct Professor of Law, University of Texas, Criminal Defense Clinic

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5 The New Grievance System And How To Avoid It Chapter 14 TABLE OF CONTENTS THE GRIEVANCE SYSTEM... 1 GRIEVANCE PROCESS... 1 CLASSIFICATION OF GRIEVANCES:... 1 INVESTIGATION... 1 Texas Disciplinary Rules of Professional Conduct... 1 JUST CAUSE... 2 RESPONDENT S ELECTION... 2 GRIEVANCE COMMITTEE... 2 DISTRICT COURT PROCEEDINGS... 2 MOST COMMON GRIEVANCES... 2 Neglect... 2 Failure to Communicate... 2 Fee Issues... 2 Practicing Law While Administratively Suspended... 3 Trust Account Violations... 3 Failure to Respond to the Grievance... 3 Compulsory Discipline... 3 HOW TO AVOID THE GRIEVANCE SYSTEM... 4 GRIEVANCE REFERRAL PROGRAM... 4 Criteria for Referral... 4 NEW RULE ON EX PARTE COMMUNICATION... 4 NEW CASE ON MOTIONS TO RECUSE... 4 CONCLUSION... 5 i

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7 The New Grievance System And How To Avoid It Chapter 14 THE NEW GRIEVANCE SYSTEM AND HOW TO AVOID IT THE GRIEVANCE SYSTEM The Supreme Court of Texas has the power to regulate the practice of law as set out in the Texas Constitution. The statutory authority to regulate the practice of law is established in the State Bar Act which directs the state bar to establish disciplinary and disability procedures. The Supreme Court has adopted the Texas Disciplinary Rules of Professional Conduct (TDRPC) which are the substantive ethics rules. The Texas Rules of Disciplinary Procedure (TRDP) sets out the procedural grievance process. The Commission for Lawyer Discipline (CFLD) is a permanent committee of the State Bar comprised of 12 members, 6 attorneys and 6 public members. The CFLD is the client for all complaints not dismissed by a summary disposition panel. The Commission reviews the structure, function and effectiveness of the discipline system and reports to the Supreme Court and the Board of Directors. CFLD monitors and evaluates the Chief Disciplinary Counsel (CDC). The CDC administers the attorney disciplinary system. The CDC reviews and screens all information relating to misconduct. It rejects all inquiries and investigates all complaints to determine just cause. CDC recommends dismissal of complaints to the Summary Disposition Panels. CDC is accountable only to the Commission for Lawyer Discipline. The District Grievance Committees are divided into state geographic disciplinary districts. They act through panels of 2/3 attorneys and 1/3 public members. The local grievance committees conduct summary disposition dockets and evidentiary hearings. The Board of Disciplinary Appeals (BODA) is an adjudicatory body composed of 12 attorneys appointed by the Supreme Court. They are the Trial court for compulsory discipline, reciprocal discipline, disability hearings and revocation of evidentiary judgments. They are the appellate Court for the classification decisions and evidentiary judgments. District Courts hear disciplinary cases when elected by the attorney, respondent. They also hear reinstatements, interim suspensions, assumptions of practice and revocations of district court judgments. Other entities are the Professional Ethics Committee which is a nine lawyer panel that issues opinions on professional conduct. The Unauthorized Practice of Law Committee is a nine member panel investigating complaints against non-lawyers. Grievance Oversight Committee is a nine member panel appointed by the Supreme Court. Other entities are the Board of Law Examiners, the Supreme Court Task Force on TDRPC and related Bar committees like 1 the Client Security Fund, Advertising Review, and the Client Attorney Assistance Program (CAAP) which assists public and attorneys in resolving disputes without a grievance. The Texas Lawyers Assistance Program helps attorneys whose professional performance is impaired because of physical or mental illness, including chemical dependency. Law Office Management is a pool of resources for managing a law practice. GRIEVANCE PROCESS CLASSIFICATION OF GRIEVANCES: A grievance means a written statement from any source which is intended to allege professional misconduct or disability of a lawyer. Anyone can file a grievance and the attorney against whom it is filed is called the Respondent. The CDC shall within thirty days examine each grievance received to determine whether it constitutes an inquiry or a complaint. Complaint: Means an allegation which on its face or through a preliminary investigation alleges professional misconduct under the TDRPC. Inquiry: Means an allegation, even if true, that does not constitute Professional Misconduct. Complainant may appeal the dismissal of a grievance to the Board of Disciplinary Appeals. INVESTIGATION If the grievance is determined to be a Complaint, the Respondent (attorney) shall be provided a copy of the complaint with notice to respond in writing to the allegations. The Respondent shall deliver the response to both the CDC and the Complainant within thirty days of the receipt of the notice. Texas Disciplinary Rules of Professional Conduct Rule 8.01(b): A lawyer in connection with a disciplinary matter shall not knowingly fail to respond to a lawful demand for information from a disciplinary authority. Rule 8.04(a)(8): Misconduct A lawyer shall not fail to timely furnish to the Chief Disciplinary Counsel s office a response or other information as required by the Texas Rules of Disciplinary Procedure. No more than sixty days after the date by which the Respondent must file a written response to the Complaint, the chief Disciplinary Counsel shall investigate the complaint and determine whether there is Just Cause. Rule 2.12 TRDP. A Just Cause finding is made if a reasonably intelligent and prudent person would believe that an attorney has committed one or more acts of professional misconduct requiring that a sanction be imposed. If the CDC determines that Just Cause does not exist, they shall place the complaint on a Summary Disposition Panel docket. This is

8 The New Grievance System And How To Avoid It Chapter 14 presented to the local grievance committee without the appearance of the Respondent (attorney) or the Complainant. There is no appeal from the Panel s determination that the complaint should be dismissed. If they fail to dismiss the complaint, it shall be placed on a hearing docket. JUST CAUSE Once the CDC determines Just Cause exists, they shall give the Respondent written notice of the acts and/or omissions engaged in by the Respondent and the Rule of Professional Conduct that the CDC contends has been violated. RESPONDENT S ELECTION A Respondent who has been give notice of the allegations and Rule violations complained of must serve the CDC with his Election of District Court or an Evidentiary Panel of the Grievance Committee. The Election must be in writing and it must be served upon the CDC no later than twenty days after the receipt of the notice of the allegations. Failure to timely elect shall conclusively be deemed as an election to proceed before the evidentiary panel of the local grievance committee. GRIEVANCE COMMITTEE If the Respondent elects or defaults by failing to timely elect, the hearing will be held in front of the local grievance committee. A Private Reprimand is only available at this proceeding and is not available if the Respondent elects a district court proceeding. The CDC must file a petition within 60 days of the election deadline. All proceedings are confidential, and the burden of proof is on the CFLD by a preponderance of the evidence. Respondent must be served with the petition by certified mail or other means permitted by the Rules of Civil Procedure. Respondent must file an answer to this petition. The committee can dismiss and refer the matter to CAAP. They can find that the Respondent suffers from a disability and refer the case to BODA or they can find professional misconduct and impose sanctions. There is a separate hearing on sanctions. Sanctions can include private reprimands, public reprimands, probation, suspension or disbarment. CFLD or Respondent has the right to appeal the decision to BODA, but the complainant does not. Judgment of disbarment cannot be stayed. DISTRICT COURT PROCEEDINGS The Texas Rules of Civil Procedure apply and the CDC files a petition on behalf of the CFLD with the Supreme Court. The Supreme Court appoints a judge who does not reside in Respondent s administrative district. The Respondent may request a jury trial, and like the Evidentiary Proceeding the Respondent once 2 served with the petition must file an answer. If misconduct is found, the judge determines the appropriate sanction. A Private Reprimand is not available and the court retains jurisdiction to enforce its judgments. A final judgment of the district court is appealed as in any other civil case. A judgment of disbarment or order revoking probation can not be stayed. MOST COMMON GRIEVANCES Neglect TDRPC 1.01(b): In representing a client, a lawyer shall not: 1. neglect a legal matter entrusted to the lawyer; or 2. frequently fail to carry out completely the obligations that the lawyer owes to a client or clients. 1.01(c): Neglect signifies inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients. Neglect is not malpractice. Failure to Communicate 1.03(a): A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable request for information. 1.03(b): A lawyer shall explain the matter to the extent reasonably necessary to permit the client to make the informed decisions regarding the representation. Failure to communicate is alleged in close to half of all grievances filed. The duty is an affirmative obligation and it not dependent on a client s request for information. It must only be reasonable and failing to advise a client of an adverse development in a case would be a violation. A lawyer must respond to reasonable requests for information. Fee Issues 1.04(a): Unconscionable fees A lawyer shall not enter into an agreement for, charge, or collect an illegal or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable. 1.04(b): Factors to be considered in the reasonableness of a fee are: Time and labor involved Novelty or difficulty of the matter Skill required to perform the legal task Fee customarily charged

9 The New Grievance System And How To Avoid It Chapter 14 Amount involved and result obtained Time limitations Experience, reputation and ability of the lawyer Preclusion of other employment Fixed v. contingency fee, uncertainty of collection 1.04(c): When a lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferable in writing, before or within a reasonable time after commencing the representation. 1.04(d): Contingent fee agreements must be in writing. Upon conclusion of the matter, the client is to be provided with a written settlement statement showing the method by which the remittance to the client was determined. Practicing Law While Administratively Suspended Rule 8.04(a)(11): A lawyer shall not: engage in the practice of law when the lawyer is on inactive status or when the lawyer s right to practice has been suspended or terminated, including but not limited to situations where a lawyer s right to practice has been administratively suspended for failure to timely pay required fees or assessments or for failure to comply with mandatory continuing legal education. This includes practicing law when the lawyer has taken inactive status, failed to pay their dues or occupational tax. It includes practicing while suspended for failing to complete MCLE requirements and failure to pay Texas Guaranteed student Loans. No notice is a mitigating circumstance. Trust Account Violations 1.14(a): A lawyer shall hold funds and other property belonging in whole or in part to clients or third persons that are in the lawyer s possession in connection with a representation separate from the lawyer s own property. Such funds shall be kept in a separate account, designated as a trust or escrow account. Complete records of such account funds shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. Cluck v. CFLD, 214 S.W.3d 736, (Tex. App.- Austin, 2007)held that a fee was not earned simply because the contract designated it as nonrefundable and the failure to deposit the unearned fee in the trust account was a violation of this rule. Failure to Respond to the Grievance 8.04(a)(8): A lawyer shall not fail to timely furnish to the Chief Disciplinary Counsel s office or a district grievance committee a response. Rangel v. SBOT, 898 S.W.2d 1, a lawyer was disbarred for failing to respond to four grievances. Compulsory Discipline 8.01 of the Rules of Disciplinary Procedure: When an attorney licensed to practice law in Texas has been convicted of an Intentional Crime or has been placed on probation for an Intentional Crime with or without an adjudication of guilt, the CDC shall initiate a disciplinary action seeking compulsory discipline pursuant to this part. Proceedings are not exclusive in that an attorney may be disciplined as a result of the underlying facts as well as being disciplined upon the conviction or probation through deferred adjudication. Intentional crime means (1) any serious crime that requires proof of knowledge or intent as an essential element or (2) any crime involving misapplication of money or other property held as a fiduciary. Serious Crime means barratry; any felony involving moral turpitude, any misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy, or solicitation of another to commit any of the foregoing crimes. In re Locke, 54 S.W.3d 305 (Tex. 2001) held that a conviction for possession of a controlled substance is not a serious crime and therefore the attorney is not subject to compulsory discipline Disbarment: When an attorney has been convicted of an Intentional Crime, and that conviction has become final, or the attorney has accepted probation with or without an adjudication of guilt for an Intentional crime, the attorney shall be disbarred unless the Board of Disciplinary Appeals, suspends his or her license to practice law Suspension: If an attorney s sentence upon conviction of a serious crime is fully probated, or if an attorney receives probation through deferred adjudication in connection with a serious crime, the attorney s license to practice law shall be suspended during the term of probation. If the probation is revoked, the attorney shall be disbarred. 3

10 The New Grievance System And How To Avoid It Chapter 14 HOW TO AVOID THE GRIEVANCE SYSTEM I. Have a written contract II. Communicate with clients in writing to document III. Explain referral fees IV. Contingents fees must be in writing and a settlement statement must be provided V. Return files VI. Keep the attorney s address current with the state bar at all times VI. Answer the grievance!!!! GRIEVANCE REFERRAL PROGRAM To participate in the program, the lawyer must meet certain eligibility criteria and agree to meet with the program administrator for an assessment of the issues that need to be addressed. The lawyer must agree in writing to complete specific terms and conditions, including restitution if appropriate, by a date certain and to pay for any costs associated with those terms and conditions. If the lawyer agrees to participate and completes the terms in a timely manner, the Office of Chief Disciplinary Counsel will recommend to the Commission for Lawyer Discipline that the underlying grievance be dismissed. If the lawyer does not fully complete the terms of the agreement in a timely manner, the underlying grievance will move forward through the usual disciplinary process. Criteria for Referral: Respondent has not been disciplined within the prior 3 years. Respondent has not been disciplined for similar conduct within the prior 5 years. Misconduct does not involve misappropriation of funds or breach of fiduciary duties. Misconduct does not involve dishonesty, fraud or misrepresentation. Misconduct did not result in substantial harm or prejudice to client or complainant. Respondent maintained cooperative attitude toward the proceedings. Participation is likely to benefit respondent and further the goal of protection of the public. Misconduct does not constitute a crime which would subject respondent to Compulsory Discipline under Part VIII of the Texas Rules of Disciplinary Procedure. 4 NEW RULE ON EX PARTE COMMUNICATION Texas Disciplinary Rule of Professional Conduct 3.05 (b) states: A lawyer shall not except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter other than: (1) in the course of official proceedings in the cause; (2) in writing if he promptly delivers a copy of the writing to opposing counsel or the adverse party if he is not represented by a lawyer; (3) orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer. The Professional Ethics Committee of the State Bar of Texas issued Opinion No. 587, which applied Rule 3.05's prohibition against ex parte communication to pre-filing discussions with the decision-maker at an administrative agency. The opinion applies to attorneys representing client in a contested case before an administrative agency and to the agency s lawyers who are advocating for the state s position in the case. This was the first opinion under the disciplinary rules that addressed whether a lawyer can have ex parte communications with decision makers at an agency without notifying the other parties interested in the matter. Legal scholars point out that the decision may conflict with the Texas Supreme Court s 1981 decision in Vandygriff v. First Saving and Loan Association of Borger 617 S.W.2d 669 (Tex. 1981). Vandygriff held that ex parte communication between the commissioner and chapter applicants did not violate what is now the Texas Administrative Procedure Act, because there was no contested case pending at the time of the meeting. However, Vandygriff is based on the Administrative Practices Act while Opinion 587 is based on the disciplinary rules. It is clear that the lawyer can communicate with an agency s technical staff and others for advice on how to present and document issues. Ron Beal, a Baylor University School of Law professor told Texas Lawyer magazine that he believes that if a client engages in ex parte communication with the agency decision maker who decides their case, there is a violation of procedural due process and he thinks the decision will be set aside. NEW CASE ON MOTIONS TO RECUSE The Supreme court in Caperton v. Massey Coal Co., 2009 WL (2009) decided June 8 th, 2009 held that recusal was appropriate because of the extreme circumstances of the case. Three million

11 The New Grievance System And How To Avoid It Chapter 14 dollars had been contributed to the campaign of the Chief Justice of the West Virginia Supreme Court during the time that Massey Coal was appealing an adverse judgment verdict of 50 million dollars to that Court. The Chief refused to recuse himself and was the 3/2 vote in favor of Massey overturning the large verdict against the company. The Supreme Court held that there are constitutional implication with a judge sitting in judgment of a case where a party is a significant donor. If the contributions are so substantial, then due process requires that the judge step aside even though there is no allegation or proof of actual bias. Former Chief Justice Tom Phillips has written that he believes the opinion does not apply to attorneys. In his opinion he believes that it only applies: Violation of a rule does not give rise to a private cause of action nor does it create any presumption that a legal duty to a client has been breached. (1) to a person (2) with a personal stake in the particular case (3) who had a significant (4) and disproportionate influence (5) in placing the judge on the case (6) when the case was pending or imminent. Though many have argued that this will open the flood gates for motions to recuse in our elected judicial system, most scholars believe that the case is limited to its extreme factual situation. It does recognize that due process is implicated when a judicial election is impacted by a large donation made by a party who has a case pending before the Court. The Court notes that just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when-without the consent of the other parties-a man chooses the judge in his own cause. And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin's recusal. Justice Kennedy points out that almost every State-West Virginia included-has adopted the American Bar Association's objective standard: A judge shall avoid impropriety and the appearance of impropriety. ABA Annotated Model Code. He also states that the West Virginia Code of Judicial Conduct also requires a judge to disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. Canon 3E(1). CONCLUSION The preamble to the Texas Disciplinary Rules of Professional Conduct states that a lawyer is an officer of the legal system and a public citizen having special responsibility for the quality of justice. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct. The rules do not undertake to define standards of civil liability of lawyers for professional conduct. 5

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